TITLE DEFECT AMOUNT DETERMINED UNDER SUBSECTION (IV) ABOVE SHALL
NOT BE GREATER THAN THE LESSER OF (1) THE REASONABLE COST AND EXPENSE OF CURING
SUCH ASSERTED TITLE DEFECT OR (2) THE SHARE OF SUCH CURATIVE WORK COST AND
EXPENSE WHICH IS ALLOCATED TO SUCH INTEREST IN SUCH REVIEW WELL INCLUDED IN THE
ASSETS PURSUANT TO SUBSECTION (VII) BELOW; AND
(VII)
THE ASSERTED TITLE DEFECT AMOUNT WITH RESPECT TO A REVIEW WELL
SHALL BE DETERMINED WITHOUT DUPLICATION OF ANY COSTS OR LOSSES (I) INCLUDED IN
ANOTHER ASSERTED TITLE DEFECT AMOUNT HEREUNDER, OR (II) INCLUDED IN A CASUALTY
LOSS UNDER SECTION 3.6.
TO THE EXTENT THAT THE COST TO CURE ANY ASSERTED TITLE
DEFECT WILL RESULT IN THE CURING OF ALL OR A PART OF ONE OR MORE OTHER ASSERTED
TITLE DEFECTS, SUCH COST OF CURE SHALL BE ALLOCATED FOR PURPOSES OF SECTION
3.4(E)(VI) AMONG THE INTERESTS IN THE REVIEW WELLS SO AFFECTED ON A FAIR AND
REASONABLE BASIS.
(F)
SELLER AND PURCHASER SHALL ATTEMPT TO AGREE ON ALL ASSERTED TITLE DEFECTS
AND ASSERTED TITLE DEFECT AMOUNTS BY TWO (2) BUSINESS DAYS PRIOR TO THE CLOSING
DATE.
IF SELLER AND PURCHASER ARE UNABLE TO AGREE BY THAT DATE, THE AVERAGE OF
SELLER'S AND PURCHASER'S ESTIMATES WITH RESPECT TO THE ASSERTED TITLE DEFECT
AMOUNTS FOR THE ASSERTED TITLE DEFECTS SHALL BE USED TO DETERMINE THE CLOSING
PAYMENT PURSUANT TO SECTION 8.4(A), AND ALL ASSERTED TITLE DEFECTS AND ASSERTED
TITLE DEFECT AMOUNTS IN DISPUTE SHALL BE EXCLUSIVELY AND FINALLY RESOLVED BY
ARBITRATION PURSUANT TO THIS SECTION 3.4(F).
DURING THE TEN (10) BUSINESS DAY
PERIOD FOLLOWING THE CLOSING DATE, ASSERTED TITLE DEFECTS AND ASSERTED TITLE
DEFECT AMOUNTS IN DISPUTE SHALL BE SUBMITTED TO AN ATTORNEY WITH AT LEAST TEN
(10) YEARS OF EXPERIENCE IN OIL AND GAS TITLES IN SOUTHWESTERN VIRGINIA AS
SELECTED BY MUTUAL AGREEMENT OF PURCHASER AND SELLER (THE "TITLE ARBITRATOR").
THE ARBITRATION PROCEEDING SHALL BE HELD IN PITTSBURGH, PENNSYLVANIA AND SHALL
BE CONDUCTED IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN
ARBITRATION ASSOCIATION IN EFFECT AS OF THE DATE HEREOF, TO THE EXTENT SUCH
RULES DO NOT CONFLICT WITH THE TERMS OF THIS SECTION 3.4(F).
THE TITLE
ARBITRATOR'S DETERMINATION SHALL BE MADE WITHIN TWENTY (20) DAYS AFTER
SUBMISSION OF THE MATTERS IN DISPUTE AND SHALL BE FINAL AND BINDING
18
UPON BOTH PARTIES, WITHOUT RIGHT OF APPEAL.
IN MAKING HIS DETERMINATION, THE
TITLE ARBITRATOR SHALL BE BOUND BY THE RULES SET FORTH IN SECTION 3.4(E) AND MAY
CONSIDER SUCH OTHER MATTERS AS IN THE OPINION OF THE TITLE ARBITRATOR ARE
NECESSARY OR HELPFUL TO MAKE A PROPER DETERMINATION.
ADDITIONALLY, WITH THE
PRIOR WRITTEN CONSENT OF PURCHASER AND SELLER, THE TITLE ARBITRATOR MAY CONSULT
WITH AND ENGAGE DISINTERESTED THIRD PARTIES TO ADVISE THE TITLE ARBITRATOR,
INCLUDING TITLE ATTORNEYS FROM OTHER STATES AND PETROLEUM ENGINEERS.
IN NO
EVENT SHALL ANY ASSERTED TITLE DEFECT AMOUNT EXCEED THE ESTIMATE GIVEN BY
PURCHASER IN ITS CLAIM NOTICE DELIVERED IN ACCORDANCE WITH SECTION 3.4(A).
THE
TITLE ARBITRATOR SHALL ACT AS AN EXPERT FOR THE LIMITED