Common use of Industry Consultant Determination Clause in Contracts

Industry Consultant Determination. All Disputes relating to any of the (i) Operating Competitive Set; (ii) Performance Competitive Set (including, without limitation, if the Performance Competitive Set does not contain properties which publicly file the results of their operations and/or establishing a comparable metric in the event that Competitor EBITDA is not publicly available at any time when the Performance Test is to be calculated pursuant to this Agreement); (iii) Comparable Manager Properties; (iv) Variable Expenses or those matters expressly reserved under Section 8.3(b) for resolution hereunder; and/or (v) the Credit Policy shall be resolved according to this Section 17.16(c). If a Party is entitled to and elects to have an Industry Consultant designated, it shall notify the other Party in writing and the Parties shall attempt to designate a mutually acceptable Industry Consultant within five (5) Business Days of such notice. If the Parties are unable to select an Industry Consultant, then each of Owner and Manager shall select one (1) Industry Consultant and the two (2) selected Industry Consultants shall thereafter meet in good faith within five (5) Business Days and select a third Industry Consultant in accordance with the qualifications set forth in this Agreement, in which instance, the decision of the majority of the Industry Consultants shall be binding. The Industry Consultant(s) shall establish the procedure for resolving the dispute, including what evidence to consider, whether to allow written submissions, and whether to hold a hearing, subject to the following: unless otherwise agreed by the Parties, the Industry Consultant(s) shall hold at least one (1) proceeding at which the Parties present and respond to evidence, which shall take place on a Business Day not later than fifteen (15) Business Days, nor earlier than five (5) Business Days, from the date notice of the dispute is given or as soon thereafter as the Industry Consultant(s) is/are available. Unless otherwise agreed, all proceedings shall be conducted at one of the Properties; (1) no discovery may be conducted between the Parties; (2) no attorneys may appear on behalf of either Party (although either Party may use attorneys for their own consultation or advice); (3) the Industry Consultant shall schedule and conduct all proceedings with the objective of resolving the dispute as quickly and efficiently as possible; and (4) the Parties shall not engage in any communications with any Industry Consultants except in response to formal requests by a Industry Consultant or at proceedings scheduled by a Industry Consultant. All decisions of the Industry Consultant(s), absent fraud, willful misconduct or demonstrated conflict of interest, are final and binding on the Parties (without appeal or review) and are enforceable in any court of competent jurisdiction. The Parties shall bear their own costs and expenses of the Industry Consultant resolution proceedings, including each Party’s respective attorneys’ fees and costs.

Industry Consultant Determination. All Disputes relating to any of the (i) Operating Competitive Set; (ii) Performance Competitive Set (including, without limitation, if the Performance Competitive Set does not contain properties which publicly file the results of their operations and/or establishing a comparable metric in the event that Competitor EBITDA is not publicly available at any time when the Performance Test is to be calculated pursuant to this Agreement); (iii) Comparable Manager Properties; (iv) Variable Expenses or those matters expressly reserved under Section 8.3(b) for resolution hereunder; and/or (v) the Credit Policy shall be resolved according to this Section 17.16(c). If a Party is entitled to and elects to have an Industry Consultant designated, it shall notify the other Party in writing and the Parties shall attempt to designate a mutually acceptable Industry Consultant within five (5) Business Days of such notice. If the Parties are unable to select an Industry Consultant, then each of Owner and Manager shall select one (1) Industry Consultant and the two (2) selected Industry Consultants shall thereafter meet in good faith within five (5) Business Days and select a third Industry Consultant in accordance with the qualifications set forth in this Agreement, in which instance, the decision of the majority of the Industry Consultants shall be binding. The Industry Consultant(s) shall establish the procedure for resolving the dispute, including what evidence to consider, whether to allow written submissions, and whether to hold a hearing, subject to the following: unless otherwise agreed by the Parties, the Industry Consultant(s) shall hold at least one (1) proceeding at which the Parties present and respond to evidence, which shall take place on a Business Day not later than fifteen (15) Business Days, nor earlier than five (5) Business Days, from the date notice of the dispute is given or as soon thereafter as the Industry Consultant(s) is/are available. Unless otherwise agreed, all proceedings shall be conducted at one of the Properties; (1) no discovery may be conducted between the Parties; (2) no attorneys may appear on behalf of either Party (although either Party may use attorneys for their own consultation or advice); (3) the Industry Consultant shall schedule and conduct all proceedings with the objective of resolving the dispute as quickly and efficiently as possible; and (4) the Parties shall not engage in any communications with any Industry Consultants except in response to formal requests by a an Industry Consultant or at proceedings scheduled by a an Industry Consultant. All decisions of the Industry Consultant(s), absent fraud, willful misconduct or demonstrated conflict of interest, are final and binding on the Parties (without appeal or review) and are enforceable in any court of competent jurisdiction. The Parties shall bear their own costs and expenses of the Industry Consultant resolution proceedings, including each Party’s respective attorneys’ fees and costs.

Industry Consultant Determination. All Disputes relating to any of the (i) Operating Competitive Set; (ii) Performance Competitive Set (including, without limitation, if the Performance Competitive Set does not contain properties which publicly file the results of their operations and/or establishing a comparable metric in the event that Competitor EBITDA is not publicly available at any time when the Performance Test is to be calculated pursuant to this Agreement); (iii) Comparable Manager Properties; (iv) Variable Expenses or those matters expressly reserved under Section 8.3(b) for resolution hereunder; and/or (v) the Credit Policy shall be resolved according to this Section 17.16(c). If a Party is entitled to and elects to have an Industry Consultant designated, it shall notify the other Party in writing and the Parties shall attempt to designate a mutually acceptable Industry Consultant within five (5) Business Days of such notice. If the Parties are unable to select an Industry Consultant, then each of Owner and Manager shall select one (1) Industry Consultant and the two (2) selected Industry Consultants shall thereafter meet in good faith within five (5) Business Days and select a third Industry Consultant in accordance with the qualifications set forth in this Agreement, in which instance, the decision of the majority of the Industry Consultants shall be binding. The Industry Consultant(s) shall establish the procedure for resolving the dispute, including what evidence to consider, whether to allow written submissions, and whether to hold a hearing, subject to the following: unless otherwise agreed by the Parties, the Industry Consultant(s) shall hold at least one (1) proceeding at which the Parties present and respond to evidence, which shall take place on a Business Day not later than fifteen (15) Business Days, nor earlier than five (5) Business Days, from the date notice of the dispute is given or as soon thereafter as the Industry Consultant(s) is/are available. Unless otherwise agreed, all proceedings shall be conducted at one of the PropertiesProperty; (1) no discovery may be conducted between the Parties; (2) no attorneys may appear on behalf of either Party (although either Party may use attorneys for their own consultation or advice); (3) the Industry Consultant shall schedule and conduct all proceedings with the objective of resolving the dispute as quickly and efficiently as possible; and (4) the Parties shall not engage in any communications with any Industry Consultants except in response to formal requests by a Industry Consultant or at proceedings scheduled by a Industry Consultant. All decisions of the Industry Consultant(s), absent fraud, willful misconduct or demonstrated conflict of interest, are final and binding on the Parties (without appeal or review) and are enforceable in any court of competent jurisdiction. The Parties shall bear their own costs and expenses of the Industry Consultant resolution proceedings, including each Party’s respective attorneys’ fees and costs.