Common use of Environmental Dispute Resolution Clause in Contracts

Environmental Dispute Resolution. Whitehorse, on behalf of the Whitehorse Sellers, Siltstone II, on behalf of the Siltstone Sellers, and Buyer shall attempt to agree on all Environmental Defects and Remediation Amounts prior to Closing. If Whitehorse, on behalf of the Whitehorse Sellers, Siltstone II, on behalf of the Siltstone Sellers, and Buyer are unable to agree by Closing, subject to Buyer’s rights pursuant to Section 10.3(b)(ii), all affected Assets shall be conveyed to Buyer at Closing and Buyer shall pay the amount equal to Buyer’s estimate of the Remediation Amount attributable to such unresolved Environmental Defects claimed by Buyer into the Escrow Account and the Environmental Defects and/or Remediation Amounts in dispute shall be exclusively and finally resolved by arbitration pursuant to this Section 10.4. There shall be a single arbitrator, who shall be an environmental attorney with at least fifteen (15) years’ experience in environmental matters involving oil and gas producing properties in the regional area in which the affected Assets are located and shall not have worked as an employee or outside counsel for any Party or its Affiliates during the five (5) year period preceding the arbitration or have any financial interest in the dispute, as selected by mutual agreement of Buyer, on the one hand, and Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers), jointly, on the other hand, within fifteen (15) days after the Closing Date, and absent such agreement, by the Houston, Texas office of the American Arbitration Association (the “Environmental Arbitrator”). The arbitration proceeding shall be held in Houston, Texas and shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, to the extent such rules do not conflict with the terms of Section 10.3. Each of Buyer, on the one hand, and Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers), jointly, on the other hand, shall submit their respective positions and evidence to the Environmental Arbitrator within fifteen (15) days after selection of the Environmental Arbitrator. The Environmental Arbitrator’s determination shall be made within twenty (20) days after submission of the matters in dispute and shall be final and binding upon the Parties, without right of appeal. The Environmental Arbitrator shall make a separate determination with respect to the existence of each asserted Environmental Defect and/or Remediation Amount, and shall be limited to awarding only Whitehorse and Siltstone II’s joint or Buyer’s final proposed Remediation Amounts exchanged by the Parties as provided above. In making his or her determination, the Environmental Arbitrator shall be bound by the relevant rules set forth in this Article X and, subject to the foregoing, may consider such other matters as in the opinion of the Environmental Arbitrator are necessary or helpful to make a proper determination. The Environmental Arbitrator shall act as an expert for the limited purpose of determining the specific disputed Environmental Defects and/or Remediation Amounts submitted by either Buyer or Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers) jointly, and may not award damages, interest or penalties to either Party with respect to any matter, but shall award to the prevailing Party its arbitration costs and attorneys’ fees. Sellers, jointly, on the one hand, and Buyer, on the other hand, shall each bear one-half of the costs and expenses of the Environmental Arbitrator. Within ten days of the final resolution of any dispute submitted to the Environmental Arbitrator, Buyer shall be entitled to withdraw from the Escrow Account the amount, if any, so awarded by the Environmental Arbitrator to Buyer plus all earnings thereof, with respect to any Environmental Defect resolved in Buyer’s favor and the balance of the escrow attributable to the resolved Environmental Defect shall be paid to Sellers.

Environmental Dispute Resolution. Whitehorse(a) If, on behalf of the Whitehorse Sellers, Siltstone II, on behalf of the Siltstone Sellers, and Buyer shall attempt to agree on all Environmental Defects and Remediation Amounts prior to Closing. If Whitehorse, on behalf of the Whitehorse Sellers, Siltstone II, on behalf of the Siltstone Sellers, and Buyer Parties are unable to agree on a resolution associated with any dispute regarding the existence, cure or remediation of any alleged Environmental Defect that was timely and properly asserted by Buyer under Section 9.2(a) or any Environmental Defect Amount with respect to such an alleged Environmental Defect (each, a “Disputed Environmental Matter”), then (i) the Assets subject to the Disputed Environmental Matter shall not be assigned to Buyer at Closing, (ii) such Assets shall be retained by Seller and deemed to be “Excluded Assets” for all purposes hereunder unless and until such Disputed Environmental Matter is agreed upon by the Parties or is resolved pursuant to this Section 9.3, (iii) subject to Section 9.4(a), the Closing Payment shall be reduced by the aggregate Allocated Values of such Assets at Closing and (iv) subject to Section 10.1 and Section 10.3, the Closing will occur as to the remainder of the Assets. Upon the agreement with respect to or final resolution of any Disputed Environmental Matter pursuant to this Section 9.3, subject to Buyer’s rights right pursuant to Section 10.3(b)(ii9.2(d), (A) all such affected Assets that were not assigned to Buyer at Closing pursuant to subpart (i) of this Section 9.3 shall again be considered “Assets” hereunder (and no longer considered “Excluded Assets”) and Seller shall convey such affected Assets to Buyer at an agreed upon time and location (but not later than three (3) Business Days after such resolution) (a “Subsequent Closing”) in a manner consistent with the provisions of Section 10.2 and Section 10.4 applicable to the Assets to be conveyed to Buyer at Closing in such Subsequent Closing, and (B) contemporaneously with such conveyance, Buyer shall pay to Seller the amount equal Allocated Value of such Assets (as adjusted pursuant to BuyerSection 3.2 and Section 3.3) by wire transfer of immediately available funds. (b) Notwithstanding the foregoing provisions of Section 9.3(a), within thirty (30) days after the Closing Date, upon any Party’s estimate written request, the Parties shall submit any dispute associated with the existence, cure or remediation of any asserted Environmental Defect or any disputed Environmental Defect Amount associated therewith for prompt resolution to an environmental consultant or attorney experienced in the Remediation Amount attributable to such unresolved Environmental Defects claimed examination of environmental matters regarding properties located in the State of Texas mutually selected by Buyer into and Seller (the Escrow Account and the “Environmental Defects and/or Remediation Amounts in dispute shall be exclusively and finally resolved by arbitration pursuant to this Section 10.4Referee”). There shall be a single arbitrator, who shall be an environmental attorney with The Environmental Referee must have at least fifteen ten (1510) years’ experience in environmental matters involving oil and gas producing properties in the regional area in which the affected Assets are located and shall must not have worked as an employee employee, consultant or outside counsel for any either Party or its Affiliates during the five (5) year period preceding the arbitration or have any financial interest in the dispute, dispute other than payments of its fees and expenses for serving as selected by mutual agreement of Buyer, the Environmental Referee hereunder. If Seller and Buyer cannot agree on the one handEnvironmental Referee, and Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers), jointly, on the other hand, within fifteen (15) days after the Closing Date, and absent such agreement, by the Houston, Texas Houston regional office of the American Arbitration Association (the “shall select such Environmental Arbitrator”). The arbitration proceeding shall be held in Houston, Texas and shall be conducted Referee in accordance with the Commercial Arbitration Rules same criteria within thirty (30) days of the American Arbitration Associationdate that either Party refers the dispute thereto. The cost and expenses of any Environmental Referee shall be borne fifty percent (50%) by Seller and fifty percent (50%) by Buyer. (c) For any such dispute resolution process, Seller and Buyer shall present a written statement of their respective positions on the dispute to the extent Environmental Referee within thirty (30) Business Days after the Environmental Referee is selected, and the Environmental Referee shall make a determination of all points of disagreement (including whether an alleged Environmental Defect constitutes an Environmental Condition hereunder if such rules do not conflict matter is in dispute and/or the Environmental Defect Amount of any Environmental Defect) in accordance with the terms and conditions of Section 10.3this Agreement within thirty (30) Business Days of receipt of such statements. Each of Buyer, on the one hand, and Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers), jointly, on the other hand, shall submit their respective positions and evidence With respect to any disputed Environmental Defect or disputed Environmental Defect Amount submitted to the Environmental Arbitrator within fifteen (15) days after selection of Referee pursuant to this Section 9.3, the Environmental Arbitrator. The Environmental Arbitrator’s determination shall be made within twenty (20) days after submission of the matters in dispute and shall be final and binding upon the Parties, without right of appeal. The Environmental Arbitrator Referee shall make a separate determination of the existence of such Environmental Defect and/or, if applicable, the Environmental Defect Amount with respect to the existence of each asserted applicable Environmental Defect and/or Remediation Amount, Defect. The determination by the Environmental Referee shall be conclusive and binding on the Parties and shall be limited to awarding only Whitehorse and Siltstone II’s joint or Buyer’s final proposed Remediation Amounts exchanged by the Parties as provided above. In making his or her determination, the Environmental Arbitrator shall be bound by the relevant rules set forth enforceable against any Party in this Article X and, subject to the foregoing, may consider such other matters as in the opinion any court of the Environmental Arbitrator are necessary or helpful to make a proper determinationcompetent jurisdiction. The Environmental Arbitrator Referee may consult with and engage disinterested third Persons to advise the arbitrator, including environmental attorneys from other states. The Environmental Referee shall act as an expert for the limited purpose of determining the specific specified disputed Environmental Defects and/or Remediation Amounts matters submitted by either Buyer or Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers) jointly, to it pursuant to this Section 9.3 and may not award (i) damages, interest or penalties to either any Party with respect to any matter, but shall award to the prevailing Party its arbitration costs and attorneys’ fees. Sellers, jointly, on the one hand, and Buyer, on the other hand, shall each bear one-half (ii) any Environmental Defect Amount of the costs and expenses of an alleged Environmental Defect more than the Environmental ArbitratorDefect Amount claimed by Buyer or (iii) any Environmental Defect Amount of an alleged Environmental Defect less than the Environmental Defect Amount claimed by Seller. Within ten days of the Subject to Section 9.4, upon final resolution of any such dispute regarding the existence or cure of any alleged Environmental Defect or any disputed Environmental Defect Amount, the Purchase Price shall be reduced by the Environmental Defect Amounts associated with all Environmental Defects submitted to the Environmental Arbitrator, Buyer shall be entitled Referee pursuant to withdraw from the Escrow Account the amount, if any, so awarded by the Environmental Arbitrator to Buyer plus all earnings thereof, with respect to any Environmental Defect resolved in Buyer’s favor and the balance of the escrow attributable to the resolved Environmental Defect shall be paid to Sellersthis Section 9.3.

Environmental Dispute Resolution. Whitehorse, on behalf of The Parties shall resolve Disputes concerning the Whitehorse Sellers, Siltstone II, on behalf of the Siltstone Sellers, and Buyer shall attempt to agree on all Environmental Defects and Remediation Amounts prior to Closing. If Whitehorse, on behalf of the Whitehorse Sellers, Siltstone II, on behalf of the Siltstone Sellers, and Buyer are unable to agree by Closing, subject to Buyer’s rights pursuant to Section 10.3(b)(ii), all affected Assets shall be conveyed to Buyer at Closing and Buyer shall pay the amount equal to Buyer’s estimate of the Remediation Amount attributable to such unresolved Environmental Defects claimed by Buyer into the Escrow Account and the Environmental Defects and/or Remediation Amounts in dispute shall be exclusively and finally resolved by arbitration following matters pursuant to this Section 10.4. There shall be a single arbitrator5.5: (a) the existence and scope of an Environmental Defect or the Remediation Costs, who shall be an environmental attorney with at least fifteen (15b) years’ experience in environmental matters involving oil and gas producing properties in the regional area in which the affected Assets are located and shall not have worked as an employee or outside counsel for any Party or its Affiliates during the five (5) year period preceding the arbitration or have any financial interest in the dispute, as selected by mutual agreement Remediation Costs of Buyer, on the one hand, and Whitehorse (on behalf that portion of the Whitehorse SellersTransferor Asset affected by an Environmental Defect and (c) the adequacy of Transferor’s cure of an Environmental Defect and Siltstone II (on behalf of the Siltstone Sellers), jointly, on the other hand, within fifteen (15) days after the Closing Date, and absent such agreement, by the Houston, Texas office of the American Arbitration Association Transferee’s reasonable satisfaction thereof (the “Environmental ArbitratorDisputed Matters”). The arbitration proceeding Parties agree to attempt to initially resolve all Disputes through good faith negotiations. If the Parties cannot resolve the Environmental Disputed Matters on or before Closing, then the Purchase Price shall be held in Houstonreduced by the Allocated Value of such Environmental Defect Property (such amount, Texas and the “Environmental Escrow Amount”), such Environmental Defect Property shall not be conveyed at Closing, and, at Closing, Transferee shall pay such Environmental Escrow Amount to the Escrow Agent as part of the Escrow Amount. The Environmental Disputed Matters will be finally determined by binding arbitration before an independent arbitrator appointed by the Parties, provided that the independent arbitrator shall be conducted in accordance qualified by education, knowledge of, and experience with environmental defects affecting the types of properties which are subject to or relate to the disputed Environmental Defect or Environmental Disputed Matters. The arbitrator shall employ such independent attorneys and/or other consultants as the arbitrator deems necessary, with the Commercial Arbitration Rules costs of such employment to be shared equally by the American Arbitration AssociationTransferor and Transferee. On or before thirty (30) days after Closing, to the extent such rules do not conflict with the terms of Section 10.3. Each of Buyer, on the one hand, Transferor and Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers), jointly, on the other hand, Transferee shall submit present their respective positions and evidence in writing to the Environmental Arbitrator within fifteen (15) days after selection of the Environmental Arbitratorarbitrator, together with such evidence as each Party deems appropriate. The Environmental Arbitrator’s determination arbitrator shall be made instructed to resolve the Dispute through a final decision within twenty (20) days after submission of the matters in dispute and shall be final and binding upon the Parties, without right of appeal. The Environmental Arbitrator shall make a separate determination with respect to the existence of each asserted Environmental Defect and/or Remediation Amountdispute, and shall the final decision may be limited to awarding only Whitehorse and Siltstone II’s joint or Buyer’s final proposed Remediation Amounts exchanged by the Parties as provided above. In making his or her determination, the Environmental Arbitrator shall be bound by the relevant rules set forth in this Article X and, subject to the foregoing, may consider such other matters as reflected in the opinion of the Environmental Arbitrator are necessary or helpful to make a proper determinationFinal Settlement Statement. The Environmental Arbitrator shall act as an expert for the limited purpose of determining the specific disputed Environmental Defects and/or Remediation Amounts submitted by either Buyer or Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers) jointly, and may not award damages, interest or penalties to either Party with respect to any matter, but shall award to the prevailing Party its arbitration costs and attorneys’ fees. Sellers, jointly, on the one hand, and Buyer, on the other hand, shall each bear one-half of the costs and expenses of the Environmental Arbitrator. Within ten days of the Upon final resolution of any dispute submitted to the Environmental Arbitrator, Buyer shall be entitled to withdraw from the Escrow Account the amount, if any, so awarded by the Environmental Arbitrator to Buyer plus all earnings thereof, Disputed Matters with respect to any Environmental Defect resolved in Buyer’s favor Defects that are subject to such Environmental Disputed Matters, the Parties shall make the election of remedies under Section 5.3 and take such further actions as are necessary to carry out such election including executing the balance Liberty Assignment or Emerald Assignment, as applicable, and delivering joint written instructions to the Escrow Agent directing the distribution of the escrow attributable Environmental Escrow Amount. All of Transferor’s covenants under Article 8 will apply to the resolved Environmental Defect shall be paid to SellersProperty until such time as the Parties have taken such actions as are required based on the arbitrator’s decision.

Environmental Dispute Resolution. Whitehorse, on behalf of the Whitehorse Sellers, Siltstone II, on behalf of the Siltstone Sellers, (i) Seller and Buyer shall attempt in good faith to agree on all Environmental Defects and Remediation Amounts (collectively, the “Environmental Disputes”) prior to Closing. If Whitehorse, on behalf of the Whitehorse Sellers, Siltstone II, on behalf of the Siltstone Sellers, Seller and Buyer are unable to agree by Closing, subject to Buyer’s rights pursuant to Section 10.3(b)(ii), all affected Assets shall be conveyed to Buyer at Closing and Buyer shall pay the amount equal to Buyer’s estimate of the Remediation Amount attributable to such unresolved Environmental Defects claimed by Buyer into the Escrow Account and (i) the Environmental Defects and/or Remediation Amounts in dispute shall Disputes will be exclusively and finally resolved by arbitration pursuant to this Section 10.4. 6.1(e), (ii) the Closing Cash Amount shall be adjusted downwards by the Allocated Value of each Conveyed Interest affected by such Environmental Disputes (together with all associated Conveyed Interests) and such Conveyed Interests shall be deemed to be Excluded Assets until such disputes are finally resolved (including, for the avoidance of doubt, for the purposes of calculating the Adjusted Closing Cash Amount and the Interim Period Carried Costs Amount) and (iii) promptly after such Environmental Disputes are finally resolved, Seller shall, at its sole option with respect to each such Conveyed Interest, elect to either: (a) convey such Conveyed Interest to Buyer in a form substantially similar to the Assignment and cause Buyer to pay to Seller an amount equal to (x) the Allocated Value minus the Environmental Defect Amount, if any (provided that Seller has not elected to assume responsibility for the Remediation of the underlying Environmental Defect, in which case, such deduction will not be made and Seller shall implement and promptly complete such Remediation in a manner which is consistent with the requirements of Environmental Laws), with respect to such Conveyed Interest, subject to Section 6.1(d), plus (y) the sum of all amounts Buyer would have been required to pay to Seller with respect to the development of such Conveyed Interests pursuant to the Development Agreement and any related operating agreements (including any Carried Costs that exceed the portion of the Allocated Value for such Title Defect Property that is attributable to the Carried Costs Obligation) had such Conveyed Interest been conveyed to Buyer at Closing; or (b) retain such Conveyed Interest, in which case such Conveyed Interest will be deemed permanently to be an Excluded Asset. (ii) There shall will be a single arbitrator, who shall must be an environmental attorney with at least fifteen (15) ten years’ experience in environmental matters involving oil and gas producing properties in any of the regional area areas in which the affected Assets Conveyed Interests are located and shall not have worked as an employee or outside counsel for any Party or its Affiliates during the five (5) year period preceding the arbitration or have any financial interest in the disputelocated, as selected by mutual agreement of Buyer, on the one hand, Buyer and Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers), jointly, on the other hand, Seller within fifteen (15) 15 days after the Closing Date, and absent such agreement, by the Houston, Texas office of the American Arbitration Association Date (the “Environmental Arbitrator”). The arbitration proceeding shall be held in If the Parties are unable to mutually agree upon the Environmental Arbitrator, the Houston, Texas office of the AAA shall appoint such Environmental Arbitrator under such conditions as the AAA in its sole discretion deems necessary or advisable. The place of arbitration will be Houston, Texas, and the arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration AssociationAAA Rules, to the extent such rules do not conflict with the terms of this Section 10.3. Each of Buyer, on the one hand, and Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers6.1(e), jointly, on the other hand, shall submit their respective positions and evidence to the Environmental Arbitrator within fifteen (15) days after selection of the Environmental Arbitrator. The Environmental Arbitrator’s determination shall be made within twenty (20) 30 days after submission of the matters in dispute Environmental Disputes and shall will be final and binding upon the both Parties, without right of appeal. The Environmental Arbitrator shall make a separate determination with respect to the existence of each asserted Environmental Defect and/or Remediation Amount, and shall be limited to awarding only Whitehorse and Siltstone II’s joint or Buyer’s final proposed Remediation Amounts exchanged by the Parties as provided above. In making his or her determination, the Environmental Arbitrator shall be bound by the relevant rules set forth in this Article X Section 6.1 and, subject to the foregoing, may consider such other matters as in the opinion of the Environmental Arbitrator are necessary or helpful to make a proper determination. The Environmental Arbitrator, however, may not award Buyer a greater Remediation Amount than the Remediation Amount claimed by Buyer in its applicable Environmental Defect Notice or a lower Remediation Amount than the Remediation Amount claimed by Seller in response to Buyer’s Environmental Defect Notice unless it is determined there was no Environmental Defect. The Environmental Arbitrator shall act as an expert for the limited purpose of determining the specific disputed Environmental Defects and/or Remediation Amounts Disputes submitted by either Buyer or Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers) jointly, Party and may not award damages, interest or penalties to either Party with respect to any matter, but Environmental Dispute. Seller and Buyer shall award each bear its own legal fees and other costs of presenting its case to the prevailing Party its arbitration costs Environmental Arbitrator. Each of Seller and attorneys’ fees. Sellers, jointly, on the one hand, and Buyer, on the other hand, Buyer shall each bear one-half of the costs and expenses of the Environmental Arbitrator. Within ten days of Subject to Sections 10.4 and 11.4, nothing herein will operate to cause the final resolution Closing to be delayed on account of any dispute submitted arbitration conducted pursuant to the Environmental Arbitrator, Buyer shall be entitled to withdraw from the Escrow Account the amount, if any, so awarded by the Environmental Arbitrator to Buyer plus all earnings thereof, with respect to any Environmental Defect resolved in Buyer’s favor and the balance of the escrow attributable to the resolved Environmental Defect shall be paid to Sellersthis Section 6.1(e).

Environmental Dispute Resolution. Whitehorse(a) The parties agree to resolve disputes concerning the following matters pursuant to this Section: (i) the existence and scope of an Environmental Defect, (ii) the Environmental Defect Value of an Environmental Defect and Seller's share of same and (iii) the effectiveness of Seller's Remediation (the "DISPUTED ENVIRONMENTAL MATTERS"). The parties agree to attempt to initially resolve all Disputed Environmental Matters through good faith negotiations. If the parties cannot resolve such disputes by May 30, 2003, the Disputed Environmental Matters shall be finally determined pursuant to Section 5.7(b) by a mutually agreeable environmental consulting firm(s) (the "ENVIRONMENTAL ARBITER"), taking into account the factors set forth in this Agreement. The Closing shall not be delayed due to such unresolved Disputed Environmental Matters and the Assets subject to such unresolved Disputed Environmental Matters shall be assigned and transferred to Buyer at Closing without any reduction to the Purchase Price. (b) For any Disputed Environmental Matters not resolved by May 30, 2003, Buyer and Seller shall, on behalf or before June 11, 2003, present their respective positions in writing to the Environmental Arbiter, together with such evidence as each party deems appropriate. The Environmental Arbiter, shall be instructed to resolve the dispute through a final decision by June 30, 2003. The costs incurred in employing the Environmental Arbiter shall be borne equally by Seller and Buyer. The Environmental Arbiter's final decision shall be binding upon the parties. Within five (5) business days following Seller's receipt of the Whitehorse SellersEnvironmental Arbiter's final written decision, Siltstone IISeller shall, on behalf subject to Section 5.7(c) and at its sole election, elect one of the Siltstone Sellersfollowing with respect to the Asset that is the subject of such decision of the Environmental Arbiter by so notifying Buyer: (i.) Pay to Buyer, within three (3) days of such election, the amount of Seller's share of the Actual Environmental Defect Value determined in the Environmental Arbiter's decision for the Qualifying Environmental Defect which was the subject of such decision, in which event Seller shall have no further obligation or liability relating to such Qualifying Environmental Defect or (ii.) Have Buyer reconvey to Seller the interest in the Asset acquired by Buyer (including a special warranty from Buyer) to which the Qualifying Environmental Defect pertains which was the subject of the Environmental Arbiter's decision and concurrent with such reconveyance Seller shall pay to Buyer the Allocated Value of such Asset. Such reconveyance shall occur within three (3) days of Buyer's receipt of Seller's election notice, but shall be effective as of the Effective Time. (c) Notwithstanding the other provisions of this Section 5.7, Seller shall not be obligated to elect either of the remedies set forth in Section 5.7(b) above for any Disputed Environmental Matter unless the Environmental Arbiter finds such Disputed Environmental Matter to be a Qualifying Environmental Defect, and then only to the extent the sum of Seller's share of all Actual Environmental Defect Values of all Qualifying Environmental Defects established before and after Closing exceeds the Environmental Threshold Amount. If the sum of Seller's share of all Actual Environmental Defect Values of all Qualifying Environmental Defects does not exceed the Environmental Threshold Amount, then Buyer shall attempt retain the interests in the Assets subject to agree on all Environmental Defects and Remediation Amounts prior Seller shall have no further obligation or liability relating to Closingany Environmental Defects. If Whitehorsethe sum of Seller's share of all Actual Environmental Defect Values of all Qualifying Environmental Defects exceeds the Environmental Threshold Amount, on behalf then (i) Seller shall only be obligated to elect the remedies set forth in Section 5.7(b) for that portion of such sum of Seller's share of all Actual Environmental Defect Values in excess of the Whitehorse Sellers, Siltstone II, on behalf Environmental Threshold Amount and (ii) Buyer shall retain the interests in the Assets subject to all Qualifying Environmental Defects the sum of Seller's share of the Siltstone Sellers, and Buyer are unable to agree by Closing, subject to Buyer’s rights pursuant to Section 10.3(b)(ii), all affected Assets shall be conveyed to Buyer at Closing and Buyer shall pay the amount Actual Environmental Defect Values of which is less than or equal to Buyer’s estimate of the Remediation Amount attributable to such unresolved Environmental Defects claimed by Buyer into the Escrow Account and the Environmental Defects and/or Remediation Amounts in dispute shall be exclusively and finally resolved by arbitration pursuant to this Section 10.4. There shall be a single arbitrator, who shall be an environmental attorney with at least fifteen (15) years’ experience in environmental matters involving oil and gas producing properties in the regional area in which the affected Assets are located and shall not have worked as an employee or outside counsel for any Party or its Affiliates during the five (5) year period preceding the arbitration or have any financial interest in the dispute, as selected by mutual agreement of Buyer, on the one hand, and Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers), jointly, on the other hand, within fifteen (15) days after the Closing Date, and absent such agreement, by the Houston, Texas office of the American Arbitration Association (the “Environmental Arbitrator”). The arbitration proceeding shall be held in Houston, Texas and shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, to the extent such rules do not conflict with the terms of Section 10.3. Each of Buyer, on the one hand, and Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers), jointly, on the other hand, shall submit their respective positions and evidence to the Environmental Arbitrator within fifteen (15) days after selection of the Threshold Amount and Seller shall have no further obligation or liability relating to all such Qualifying Environmental Arbitrator. The Environmental Arbitrator’s determination shall be made within twenty (20) days after submission of the matters in dispute and shall be final and binding upon the Parties, without right of appeal. The Environmental Arbitrator shall make a separate determination with respect to the existence of each asserted Environmental Defect and/or Remediation Amount, and shall be limited to awarding only Whitehorse and Siltstone II’s joint or Buyer’s final proposed Remediation Amounts exchanged by the Parties as provided above. In making his or her determination, the Environmental Arbitrator shall be bound by the relevant rules set forth in this Article X and, subject to the foregoing, may consider such other matters as in the opinion of the Environmental Arbitrator are necessary or helpful to make a proper determination. The Environmental Arbitrator shall act as an expert for the limited purpose of determining the specific disputed Environmental Defects and/or Remediation Amounts submitted by either Buyer or Whitehorse (on behalf of the Whitehorse Sellers) and Siltstone II (on behalf of the Siltstone Sellers) jointly, and may not award damages, interest or penalties to either Party with respect to any matter, but shall award to the prevailing Party its arbitration costs and attorneys’ fees. Sellers, jointly, on the one hand, and Buyer, on the other hand, shall each bear one-half of the costs and expenses of the Environmental Arbitrator. Within ten days of the final resolution of any dispute submitted to the Environmental Arbitrator, Buyer shall be entitled to withdraw from the Escrow Account the amount, if any, so awarded by the Environmental Arbitrator to Buyer plus all earnings thereof, with respect to any Environmental Defect resolved in Buyer’s favor and the balance of the escrow attributable to the resolved Environmental Defect shall be paid to SellersDefects.