Common use of Resolution of Casualty Loss Clause in Contracts

Resolution of Casualty Loss. (a) If, after the Signing Date but prior to the Closing Date, any Purchased Asset suffers a Casualty Loss, then (subject to Sections 15.2, 15.3 and 17.1) Purchaser shall nevertheless be required to proceed to Closing with respect to such Purchased Asset and Seller shall elect by written notice to Purchaser prior to Closing either (i) to cause, at Seller’s sole cost and expense, any such Purchased Asset affected by a Casualty Loss to be repaired or restored to a quality and condition comparable to that existing with respect to such Purchased Asset immediately before the Casualty Loss using the Prudent Cost Response (in the case of expenditures necessary to comply with Environmental Laws), as promptly as reasonably practicable (which work may extend after the Closing Date, so long as Seller is diligently pursuing such repairs or restoration activities but not longer than one hundred eighty (180) Days after the Closing Date unless mutually acceptable to the Parties) or (ii) to make an appropriate monetary adjustment to the Purchase Price reflecting the “reduction in value” of such Casualty Loss in accordance with Section 7.2(b). (b) For the purposes of this Article VII, “reduction in value” due to a Casualty Loss is based on the principle that Seller should generally bear the costs of repair and restoration of such Purchased Asset to a quality and condition comparable to that existing with respect to such Purchased Asset immediately before the Casualty Loss, limited (i) to amounts in excess of the threshold level contained in the definition of “Casualty Loss” with respect to such Casualty Loss; (ii) in the case of expenditures necessary to comply with Environmental Laws, to the lesser of (A) the Prudent Cost Response and (B) the Good Faith Allocation applicable to the affected Purchased Asset; (iii) in the case of expenditures not necessary to comply with Environmental Laws, to the Good Faith Allocation applicable to the affected Purchased Asset; (iv) in all cases, to the amount which, when combined with the other Aggregate Transaction Claims for which Seller is responsible, exceeds the Aggregate Deductible Amount; provided that, if such repair or restoration costs result in the Purchased Assets having a quality or condition better than that existing immediately prior to the Casualty Loss, Purchaser shall bear, or reimburse Seller if already incurred by Seller, an equitable portion of such repair or restoration costs; and (v) in all cases, in respect of any such Casualty Loss, to the applicable Casualty Loss Cap. If Section 7.2(a)(ii) is applicable, Seller shall notify Purchaser at least ten (10) Days prior to the Closing of its proposed monetary adjustment and if the Parties have a dispute regarding the amount of the appropriate monetary adjustment (such dispute, a “Casualty Loss Dispute”), subject to the foregoing limitations, the Parties shall Close with an adjusting payment to Purchaser in the amount of the good faith estimate of the reduction in value associated with such Casualty Loss as determined by Seller and equitable allocation of repair or restoration costs to Purchaser as determined by Seller; provided, however, either Party may initiate, within thirty (30) Days (but not later) after the Closing Date, binding arbitration in accordance with Article XVIII to resolve the Casualty Loss Dispute by delivering to the other Party a written notice setting forth the Casualty Loss in dispute, the Purchased Assets affected, the specific description of the Casualty Loss, and, subject to the foregoing limitations, such Party’s good faith estimate of the reduction in value of such Casualty Loss and equitable allocation of cost, together with any available documentation upon which such Party’s belief is based as to the existence, validity, value or cure of such Casualty Loss (such notice, a “Casualty Loss Dispute Notice”). (c) Notwithstanding anything to the contrary in Article XVIII, any arbitration initiated under this Section 7.2 shall be exclusively and finally resolved by a single arbitrator if the Casualty Loss Dispute involves less than Five Million Dollars ($5,000,000) and by a panel of three arbitrators if the Casualty Loss Dispute involves more than Five Million Dollars ($5,000,000). Any such arbitrator (the “Casualty Referee”) shall be an insurance loss consultant(s) with at least ten (10) years experience in oil and gas facility insurance loss analysis matters, shall have not at any point in the past ten (10) years represented or been adverse to either Party or any of their Affiliates and shall be selected by mutual agreement of Purchaser and Seller within fifteen (15) Days after the delivery and receipt of the applicable Casualty Loss Dispute Notice, and absent such agreement, shall be selected by the Houston, Texas regional office of the AAA upon written request of either Party. Except as otherwise provided in the preceding two sentences, Casualty Loss Dispute arbitrations shall be conducted in accordance with Article XVIII; provided, if there is a difference between the good faith estimates of Seller and Purchaser as to the reduction in value or equitable allocation of costs in excess of twenty percent (20%) of such arithmetical average, then the arbitrators shall be obligated to select as the reduction in value one of the good faith estimates proposed by the Parties, but not another amount in between the two estimates or otherwise. Any Claim for a Casualty Loss not referred to binding arbitration under Article XVIII within thirty (30) Days after Closing shall be deemed waived. (d) In each case, Seller shall be entitled to retain all rights to insurance and other Claims against Third Parties with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing. (e) As used in Section 7.2, Prudent Cost Response shall not include costs related to Decommissioning, Asbestos and Related Liabilities, Process Safety Management and Disclosed Environmental Liabilities.

Resolution of Casualty Loss. (a) 7.2.1 If, after the Signing Date but prior to the Closing Date, any Purchased Asset Property suffers a Casualty Loss, then (subject to Sections 15.2, 15.3 and 17.1) Purchaser Buyer shall nevertheless be required to proceed to Closing with respect to such Purchased Asset Property and Seller shall elect by written notice to Purchaser Buyer prior to Closing either (i) to cause, at Seller’s sole cost and expense, any such Purchased Asset Property affected by a Casualty Loss to be repaired or restored to a quality and condition comparable to that existing with respect to such Purchased Asset Property immediately before the Casualty Loss using the Prudent Cost Response (in the case of expenditures necessary to comply with Environmental Laws), as promptly as reasonably practicable (which work may extend after the Closing Date, so long as Seller is diligently pursuing such repairs or restoration activities but not longer than one hundred eighty (180) Days after the Closing Date unless mutually acceptable to the Parties) or (ii) to make an appropriate monetary adjustment to the Purchase Price reflecting the “reduction in value” of such Casualty Loss in accordance with Section 7.2(b)7.2.2. (b) 7.2.2 For the purposes of this Article VII7, “reduction in value” due to a Casualty Loss is based on the principle that Seller should generally bear the costs of repair and restoration of such Purchased Asset Property to a quality and condition comparable to that existing with respect to such Purchased Asset Property immediately before the Casualty Loss, limited (i) to amounts in excess of the threshold level contained in the definition of “Casualty Loss” with respect to such Casualty Loss; (ii) in the case of expenditures necessary to comply with Environmental Laws, to the lesser of (A) the Prudent Cost Response and (B) the Good Faith Allocation applicable to the affected Purchased Asset; Property in Exhibits “A-1”, “A-2”, or “A-3” and (iiiii) in the case of expenditures not necessary to comply with Environmental Laws, to the Good Faith Allocation applicable to the affected Purchased Asset; Property in Exhibits “A-1”, “A-2”, or “A-3” and (iviii) in all cases, to the amount which, when combined with the other Aggregate Transaction Claims for which Seller is responsible, exceeds the Aggregate Deductible Amount; provided that, if such repair or restoration costs result in the Purchased Assets Properties having a quality or condition better than that existing immediately prior to the Casualty Loss, Purchaser Buyer shall bear, or reimburse Seller if already incurred by Seller, an equitable portion of such repair or restoration costs; and (v) in all cases, in respect of any such Casualty Loss, to the applicable Casualty Loss Cap. If Section 7.2(a)(ii7.2.1(ii) is applicable, Seller shall notify Purchaser Buyer at least ten (10) Days prior to the Closing of its proposed monetary adjustment and if the Parties have a dispute regarding the amount of the appropriate monetary adjustment (such dispute, a “Casualty Loss Dispute”), subject to the foregoing limitations, the Parties shall Close with an adjusting payment to Purchaser Buyer in the amount of the Seller’s good faith estimate of the reduction in value associated with such Casualty Loss as determined by Seller and equitable allocation of repair or restoration costs to Purchaser as determined by SellerBuyer; provided, however, either Party may initiate, within thirty (30) Days (but not later) after the Closing Date, binding arbitration in accordance with Article XVIII 18 to resolve the Casualty Loss Dispute by delivering to the other Party a written notice setting forth the HOUSTON 1139976v.13 Casualty Loss in dispute, the Purchased Assets Properties affected, the specific description of the Casualty Loss, and, subject to the foregoing limitations, such Party’s good faith estimate of the reduction in value of such Casualty Loss and equitable allocation of cost, together with and any available documentation upon which such Party’s belief is based as to the existence, validity, value or cure of such Casualty Loss (such notice, a “Casualty Loss Dispute Notice”). (c) 7.2.3 Notwithstanding anything to the contrary in Article XVIII18, any arbitration initiated under this Section 7.2 shall be exclusively and finally resolved by a single arbitrator if the Casualty Loss Dispute involves less than Five Ten Million Dollars ($5,000,00010,000,000) and by a panel of three arbitrators if the Casualty Loss Dispute involves more than Five Ten Million Dollars ($5,000,00010,000,000). Any such arbitrator (the “Casualty Referee”) shall be an insurance loss consultant(s) with at least ten (10) years experience in oil and gas facility insurance loss analysis matters, shall have not at any point in the past ten (10) years represented or been adverse to either Party or any of their Affiliates and shall be selected by mutual agreement of Purchaser Buyer and Seller within fifteen (15) Days after the delivery and receipt of the applicable Casualty Loss Dispute Notice, and absent such agreement, shall be selected by the Houston, Texas regional office of the AAA upon written request of either Party. Except as otherwise provided in the preceding two sentences, Casualty Loss Dispute arbitrations shall be conducted in accordance with Article XVIII18; provided, if there is a difference between the good faith estimates of Seller and Purchaser Buyer as to the reduction in value or equitable allocation of costs in excess of twenty percent (20%) of such arithmetical average, then the arbitrators shall be obligated to select as the reduction in value one of the good faith estimates proposed by the Parties, but not another amount in between the two estimates or otherwise. Any Claim for a Casualty Loss not referred to binding arbitration under Article XVIII 18 within thirty (30) Days after Closing shall be deemed waived. (d) 7.2.4 In each case, Seller shall be entitled to retain all rights to insurance and other Claims against Third Parties with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing. (e) 7.2.5 As used in Section 7.2, Prudent Cost Response shall not include costs related to Decommissioning, Asbestos and Related Liabilities, Process Safety Management and Disclosed Environmental Liabilities.

Resolution of Casualty Loss. (a) If, after the Signing Date but prior to the Closing Date, any Purchased Asset Property suffers a Casualty Loss, then (subject to Sections 15.2, 15.3 and 17.1) Purchaser shall nevertheless be required to proceed to Closing with respect to such Purchased Asset Property and Seller shall elect by written notice to Purchaser prior to Closing either (i) to cause, at Seller’s sole cost and expenseexpense (to the extent Purchaser does not otherwise own an interest in such Property), any such Purchased Asset Property affected by a Casualty Loss to be repaired or restored to a quality and condition comparable to that existing with respect to such Purchased Asset Property immediately before the Casualty Loss using the Prudent Cost Response (in the case of expenditures necessary to comply with Environmental Laws), as promptly as reasonably practicable (which work may extend after the Closing Date, so long as Seller is diligently pursuing such repairs or restoration activities but not longer than one hundred eighty (180) Days after the Closing Date unless mutually acceptable to the Parties) or ); (ii) to make an appropriate monetary adjustment to the Purchase Price reflecting the “reduction in value” of such Casualty Loss in accordance with Section 7.2(b); or (iii) to cause such Property affected by a Casualty Loss to be an Excluded Property and the Purchase Price shall be reduced by the Good Faith Allocation of such Property with adjustments as provided in Section 2.3 as applicable. (b) For the purposes of this Article VII, “reduction in value” due to a Casualty Loss is based on the principle that Seller should generally bear the costs of repair and restoration of such Purchased Asset Property to a quality and condition comparable to that existing with respect to such Purchased Asset Property immediately before the Casualty Loss, limited (i) to amounts in excess of the threshold level contained in the definition of “Casualty Loss” with respect to such Casualty Loss; (ii) in the case of expenditures necessary to comply with Environmental Laws, to the lesser of (A) the Prudent Cost Response and (B) the Good Faith Allocation applicable to the affected Purchased AssetProperty; (iiiii) in the case of expenditures not necessary to comply with Environmental Laws, to the Good Faith Allocation applicable to the affected Purchased AssetProperty; and (iviii) in all cases, to the amount which, when combined with the other Aggregate Transaction Claims for which Seller is responsible, exceeds the Aggregate Deductible Amount; provided that, if such repair or restoration costs result in the Purchased Assets Properties having a quality or condition better than that existing immediately prior to the Casualty Loss, Purchaser shall bear, or HOUSTON 1151220v.11 reimburse Seller if already incurred by Seller, an equitable portion of such repair or restoration costs; and (v) in all cases, in respect of any such Casualty Loss, to the applicable Casualty Loss Cap. If Section 7.2(a)(ii) is applicable, Seller shall notify Purchaser at least ten (10) Days prior to the Closing of its proposed monetary adjustment and if the Parties have a dispute regarding the amount of the appropriate monetary adjustment (such dispute, a “Casualty Loss Dispute”), subject to the foregoing limitations, the Parties shall Close with an adjusting payment to Purchaser in the amount of the good faith estimate of the reduction in value associated with such Casualty Loss as determined by Seller and equitable allocation of repair or restoration costs to Purchaser as determined by Seller; provided, however, either Party may initiate, within thirty (30) Days (but not later) after the Closing Date, binding arbitration in accordance with Article XVIII to resolve the Casualty Loss Dispute by delivering to the other Party a written notice setting forth the Casualty Loss in dispute, the Purchased Assets Properties affected, the specific description of the Casualty Loss, and, subject to the foregoing limitations, such Party’s good faith estimate of the reduction in value of such Casualty Loss and equitable allocation of cost, together with any available documentation upon which such Party’s belief is based as to the existence, validity, value or cure of such Casualty Loss (such notice, a “Casualty Loss Dispute Notice”). (c) Notwithstanding anything to the contrary in Article XVIII, any arbitration initiated under this Section 7.2 shall be exclusively and finally resolved by a single arbitrator if the Casualty Loss Dispute involves less than Five Ten Million Dollars ($5,000,00010,000,000) and by a panel of three arbitrators if the Casualty Loss Dispute involves more than Five Ten Million Dollars ($5,000,00010,000,000). Any such arbitrator (the “Casualty Referee”) shall be an insurance loss consultant(s) with at least ten (10) years experience in oil and gas facility insurance loss analysis matters, shall have not at any point in the past ten (10) years represented or been adverse to either Party or any of their Affiliates and shall be selected by mutual agreement of Purchaser and Seller within fifteen (15) Days after the delivery and receipt of the applicable Casualty Loss Dispute Notice, and absent such agreement, shall be selected by the Houston, Texas regional office of the AAA upon written request of either Party. Except as otherwise provided in the preceding two sentences, Casualty Loss Dispute arbitrations shall be conducted in accordance with Article XVIII; provided, if there is a difference between the good faith estimates of Seller and Purchaser as to the reduction in value or equitable allocation of costs in excess of twenty percent (20%) of such arithmetical average, then the arbitrators shall be obligated to select as the reduction in value one of the good faith estimates proposed by the Parties, but not another amount in between the two estimates or otherwise. Any Claim for a Casualty Loss not referred to binding arbitration under Article XVIII within thirty (30) Days after Closing shall be deemed waived. (d) In each case, Seller shall be entitled to retain all rights to insurance and other Claims against Third Parties with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing. (e) As used in Section 7.2, Prudent Cost Response shall not include costs related to Decommissioning, Asbestos and Related Liabilities, Process Safety Management and Disclosed Environmental Liabilities.. HOUSTON 1151220v.11

Resolution of Casualty Loss. (a) If, If after the Signing Date but prior to the Closing Date, any Purchased Asset Property suffers a Casualty LossLoss in an amount that exceeds Five Million Dollars ($5,000,000), net to Seller’s interest in the applicable Property, then (subject to Sections 15.2, 15.3 and 17.1) Purchaser shall nevertheless be required to proceed to Closing with respect to such Purchased Asset and Seller shall elect by written notice to Purchaser prior to Closing either (i) to cause, at Seller’s sole cost and expenseexpense (to the extent Purchaser does not otherwise own an interest in such Property), any such Purchased Asset Property affected by a such Casualty Loss to be repaired or restored to a quality and condition comparable to that existing with respect to such Purchased Asset Property immediately before the such Casualty Loss using the Prudent Cost Response (in the case of expenditures necessary to comply with Environmental Laws)Loss, as promptly as reasonably practicable (which work may extend after the Closing Date, so long as Seller is diligently pursuing such repairs or restoration activities but not longer than one hundred eighty (180) Days after the Closing Date unless mutually acceptable to the Parties) or ), (ii) to make an appropriate monetary adjustment to reduce the Closing Purchase Price reflecting by the “reduction in value” of such Casualty Loss in accordance with Section 7.2(b), or (iii) to cause such Property affected by such Casualty Loss to be retained by Seller at Closing, in which case such Property shall be an Excluded Property for all purposes hereunder and the Closing Purchase Price shall be adjusted by the Good Faith Allocation of such Excluded Property. (b) For the purposes of this Article VII, “reduction in value” due to a Casualty Loss in an amount that exceeds Five Million Dollars ($5,000,000), net to Seller’s interest in the applicable Property, is based on the principle that Seller should generally bear the costs of repair and restoration of such Purchased Asset Property to a quality and condition comparable to that existing with respect to such Purchased Asset Property immediately before the Casualty Loss, limited (i) to amounts in excess of the threshold level contained in the definition of “Casualty Loss” with respect to such Casualty Loss; (ii) in the case of expenditures necessary to comply with Environmental Laws, to the lesser of (A) the Prudent Cost Response and (B) the Good Faith Allocation applicable to the affected Purchased Asset; (iii) in the case of expenditures not necessary to comply with Environmental Laws, to the Good Faith Allocation applicable to the affected Purchased Asset; (iv) in all cases, to the amount which, when combined with the other Aggregate Transaction Claims for which Seller is responsible, exceeds the Aggregate Deductible Amount; provided that, if such repair or restoration costs result in the Purchased Assets having a quality or condition better than that existing immediately prior to the Casualty Loss, Purchaser shall bear, or reimburse Seller if already incurred by Seller, an equitable portion of such repair or restoration costs; and (v) in all cases, in respect of any such Casualty Loss, to the applicable Casualty Loss Cap. If Section 7.2(a)(ii) is applicable, Seller shall notify Purchaser at least ten (10) Days prior to the Closing of its proposed monetary adjustment and and, if the Parties have a dispute regarding the amount of the appropriate monetary adjustment (such dispute, a “Casualty Loss Dispute”), subject to unless Seller elects the foregoing limitationsalternative in Section 7.2(a)(iii), the Parties shall Close with proceed to Closing and reduce the Closing Purchase Price by an adjusting payment amount equal to Purchaser in (i) the amount average of the each Party’s good faith estimate of the reduction in value associated with such Casualty Loss as determined by Seller and Loss, plus (ii) the average of each Party’s good faith estimate of the equitable allocation of repair or restoration costs to Purchaser. (c) Seller and Purchaser as determined shall attempt to agree on all Casualty Loss Disputes prior to Closing. If Seller and Purchaser are unable to resolve the Casualty Loss Disputes by Seller; provided, howeverClosing, either Party may initiate, within thirty one hundred eighty (30180) Days (but not later) after the Closing Date, binding arbitration in accordance with Article XVIII to resolve the Casualty Loss Dispute by delivering to the other Party a written notice setting forth the Casualty Loss in dispute, the Purchased Assets Properties affected, the specific description of the such Casualty Loss, Loss and, subject to the foregoing limitations, such Party’s good faith estimate of the reduction in value of such Casualty Loss Loss, net to Seller’s interest, and equitable allocation of cost, together with any available documentation upon which such Party’s belief is based as to the existence, validity, value or cure of such Casualty Loss (such notice, a “Casualty Loss Dispute Notice”). (c) . Notwithstanding anything to the contrary in Article XVIII, any arbitration initiated under this Section 7.2 shall be exclusively and finally resolved by a single arbitrator if the Casualty Loss Dispute involves less than Five Ten Million Dollars ($5,000,00010,000,000) and by a panel of three arbitrators if the Casualty Loss Dispute involves more than Five Ten Million Dollars ($5,000,00010,000,000). Any such arbitrator arbitrator(s) (the “Casualty Referee”) shall be an insurance loss consultant(s) with at least ten (10) years experience in oil and gas facility insurance loss analysis matters, shall have not at any point in the past ten (10) years represented or been adverse to either Party or any of their Affiliates and shall shall, in the case of a single arbitrator, be selected by mutual agreement of Purchaser and Seller within fifteen (15) Days after the delivery and receipt of the applicable Casualty Loss Dispute Notice, and absent such agreement, shall be selected by the Houston, Texas regional office of the AAA upon written request of either Party. Except as otherwise provided in the preceding two (2) sentences, Casualty Loss Dispute arbitrations shall be conducted in accordance with Article XVIII; provided, if there is a difference between the good faith estimates of Seller and Purchaser as to the reduction in value or equitable allocation of costs in excess of twenty percent (20%) of such arithmetical average, then the arbitrators shall be obligated to select as the reduction in value one of the good faith estimates proposed by the Parties, but not another amount in between the two estimates or otherwise. Any Claim for a Casualty Loss not referred to binding arbitration under Article XVIII within thirty one hundred eighty (30180) Days after Closing shall be deemed waived. (d) In each case, Seller shall be entitled to retain all rights to insurance and other Claims against Third Parties with respect to the Casualty Loss, except to the extent the Parties otherwise agree in writing. (e) As used in Section 7.2, Prudent Cost Response shall not include costs related to Decommissioning, Asbestos and Related Liabilities, Process Safety Management and Disclosed Environmental Liabilities.