Common use of Industry Expert Clause in Contracts

Industry Expert. If, within 30 Days after the first Business Day of the period for which any Midcon and PRP Fee Adjustments are to be effective, the Parties have not entered into an amendment to this Agreement reflecting the Parties’ agreement regarding such annual adjustments to the Midcon and PRP Fee Adjustments, then either Party may notify the other of its request to have an Industry Expert determine adjustments to the applicable Midcon and PRP Fee Adjustments, if any, and the True-Up Payment, if any (the Party to give such a notice, the “Notifying Party”, and the recipient of such a notice, the “Receiving Party”). Upon the receipt of such a request for an Industry Expert determination from the Notifying Party, the Notifying Party and Receiving Party shall confer in good faith for up to 5 Business Days to agree on the selection of an Industry Expert to determine if, taking into account the factors enumerated above in Section 3(b) of this Exhibit B, an adjustment to the Midcon Fees and PRP Fees is appropriate and, with respect to the Annual Redetermination for the final Annual Redetermination Period, the amount of any True-Up Payment that is payable. If the Parties are unable to agree upon the selection of an Industry Expert within such 5 Business Day period, then each of the Notifying Party and Receiving Party will select an Industry Expert and the two firms so selected will select a Person to serve as the Industry Expert. Following such selection of an Industry Expert, each Party shall present to the Industry Expert a written statement of its position on proposed adjustments to the Midcon Fees and PRP Fees (including its methodology for calculating such adjustments) not later than 30 Days after the selection of such Industry Expert. The Industry Expert may, within 30 Days after its receipt of such statements, request such additional information from either or both Parties as the Industry Expert may deem reasonably necessary or desirable for purposes of making its determination. Each Party agrees to promptly provide the Industry Expert with all information so requested of it. The Industry Expert shall make its determination in a manner consistent with Section 3(b) of this Exhibit B above and Schedule B8. The Industry Expert shall be instructed to determine and submit to the Parties its decision regarding (i) adjustments to all or any portion of the Midcon Fees and PRP Fees; provided, however, that any increase or decrease to any Midcon Fees and PRP Fees determined by the Industry Expert shall be subject to the Midcon/PRP Redetermination Cap, and (ii) the amount of any True-Up Payment due in respect of the final Annual Redetermination Period. The decision of the Industry Expert shall be conclusive, binding upon, and non-appealable by the Parties; provided that, the decision of the Industry Expert shall not be binding on the Gatherer unless and until it has received an opinion from its counsel that such Fees as proposed to be adjusted will be treated as qualifying income (as defined in Section 7704(d) of the Internal Revenue Code of 1986, as amended). In making a determination under this Section 3(c) of Exhibit B, an Industry Expert shall be authorized to engage such independent consultants, which may include an independent reservoir engineering firm or engineering firm that is a recognized leader in advising midstream companies on the design and estimated construction costs of gathering systems in the Midcon and PRP regions, provided that each of such consultants must not have a material conflict of interest in relation to Producers and CHK Parent, on the one hand, or Gatherer or its members, on the other hand. The costs and expenses of the Industry Expert and such other consultants shall be shared equally by the Parties.

Industry Expert. If, within 30 Days after the first Business Day of the period for which any Midcon and PRP Springridge Fee Adjustments are to be effective, the Parties have not entered into an amendment to this Agreement reflecting the Parties’ agreement regarding such annual adjustments to the Midcon and PRP Springridge Fee Adjustments, then either Party may notify the other of its request to have an Industry Expert determine adjustments to the applicable Midcon and PRP Springridge Fee Adjustments, if any, and the True-Up Payment, if any (the Party to give such a notice, the “Notifying Party”, and the recipient of such a notice, the “Receiving Party”). Upon the receipt of such a request for an Industry Expert determination from the Notifying Party, the Notifying Party and Receiving Party shall confer in good faith for up to 5 Business Days to agree on the selection of an Industry Expert to determine if, taking into account the factors enumerated above in Section 3(b) of this Exhibit BA, an adjustment to the Midcon Fees and PRP Springridge Fees is appropriate and, with respect to the Annual Redetermination for the final Annual Redetermination Period, the amount of any True-Up Payment that is payable. If the Parties are unable to agree upon the selection of an Industry Expert within such 5 Business Day period, then each of the Notifying Party and Receiving Party will select an Industry Expert and the two firms so selected will select a Person to serve as the Industry Expert. Following such selection of an Industry Expert, each Party shall present to the Industry Expert a written statement of its position on proposed adjustments to the Midcon Fees and PRP Springridge Fees (including its methodology for calculating such adjustments) not later than 30 Days after the selection of such Industry Expert. The Industry Expert may, within 30 Days after its receipt of such statements, request such additional information from either or both Parties as the Industry Expert may deem reasonably necessary or desirable for purposes of making its determination. Each Party agrees to promptly provide the Industry Expert with all information so requested of it. The Industry Expert shall make its determination in a manner consistent with Section 3(b) of this Exhibit B A above and Schedule B8A6. The Industry Expert shall be instructed to determine and submit to the Parties its decision regarding (i) adjustments to all or any portion of the Midcon Fees and PRP Springridge Fees; provided, however, that any increase or decrease to any Midcon Fees and PRP Springridge Fees determined by the Industry Expert shall be subject to the Midcon/PRP Springridge Redetermination Cap, and (ii) the amount of any True-Up Payment due in respect of the final Annual Redetermination Period. The decision of the Industry Expert shall be conclusive, binding upon, and non-appealable by the Parties; provided that, the decision of the Industry Expert shall not be binding on the Gatherer unless and until it has received an opinion from its counsel that such Fees as proposed to be adjusted will be treated as qualifying income (as defined in Section 7704(d) of the Internal Revenue Code of 1986, as amended). In making a determination under this Section 3(c) of Exhibit BA, an Industry Expert shall be authorized to engage such independent consultants, which may include an independent reservoir engineering firm or engineering firm that is a recognized leader in advising midstream companies on the design and estimated construction costs of gathering systems in the Midcon and PRP regionsSpringridge region, provided that each of such consultants must not have a material conflict of interest in relation to Producers and CHK ParentCHK, on the one hand, or Gatherer or its members, on the other hand. The costs and expenses of the Industry Expert and such other consultants shall be shared equally by the Parties.

Industry Expert. If, within 30 Days after the first Business Day other Party’s receipt of the period for which any Midcon and PRP Fee Adjustments are to be effectiveFirst Xxxxxxx Redetermination Notice or Second Xxxxxxx Redetermination Notice, as applicable, the Parties have not entered into an amendment to this Agreement reflecting the Parties’ agreement regarding such annual adjustments to the Midcon and PRP Fee AdjustmentsXxxxxxx Fees, then either Party may notify the other of its request to have an Industry Expert determine adjustments to all or any portion of the applicable Midcon and PRP Fee Adjustments, if any, and the True-Up Payment, if any Xxxxxxx Fees (the Party to give such a notice, the “Notifying Party”, and the recipient of such a notice, the “Receiving Party”). Upon the receipt of such a request for an Industry Expert determination from the Notifying Party, the Notifying Party and Receiving Party shall confer in good faith for up to 5 Business Days to agree on the selection of an Industry Expert to determine if, taking into account the factors enumerated above in Section 3(b3(c) of this Exhibit BA, an adjustment to the Midcon Fees and PRP Xxxxxxx Fees is appropriate and, with respect to the Annual Redetermination for the final Annual Redetermination Period, the amount of any True-Up Payment that is payableappropriate. If the Parties are unable to agree upon the selection of an Industry Expert within such 5 Business Day period, then each of the Notifying Party and Receiving Party will select an Industry Expert and the two firms so selected will select a Person to serve as the Industry Expert. Following such selection of an Industry Expert, each Party shall present to the Industry Expert a written statement of its position on proposed adjustments to the Midcon Fees and PRP Xxxxxxx Fees (including its methodology for calculating such adjustments) not later than 30 Days after the selection of such Industry Expert. The Industry Expert may, within 30 Days after its receipt of such statements, request such additional information from either or both Parties as the Industry Expert may deem reasonably necessary or desirable for purposes of making its determination. Each Party agrees to promptly provide the Industry Expert with all information so requested of it. The Industry Expert shall make its determination in a manner consistent with Section 3(b3(c) of this Exhibit B A above and Schedule B8A8. The Industry Expert shall be instructed to determine and submit to the Parties its decision regarding (i) adjustments to all or any portion of the Midcon Fees and PRP Xxxxxxx Fees; provided, however, that any increase or decrease to any Midcon Fees and PRP Fees Fee determined by the Industry Expert shall be subject to the Midcon/PRP Xxxxxxx Redetermination Cap, and (ii) the amount of any True-Up Payment due in respect of the final Annual Redetermination Period. The decision of the Industry Expert shall be conclusive, binding upon, and non-appealable by the Parties; provided that, the decision of the Industry Expert shall not be binding on the Gatherer unless and until it has received an opinion from its counsel that such Fees as proposed to be adjusted will be treated as qualifying income (as defined in Section 7704(d) of the Internal Revenue Code of 1986, as amended). In making a determination under this Section 3(c3(d) of Exhibit BA, an Industry Expert shall be authorized to engage such independent consultants, which may include an independent reservoir engineering firm or engineering firm that is a recognized leader in advising midstream companies on the design and estimated construction costs of gathering systems in the Midcon and PRP regionsXxxxxxx region, provided that each of such consultants must not have a material conflict of interest in relation to Producers and CHK Parent, on the one hand, or Gatherer or its members, on the other hand. The costs and expenses of the Industry Expert and such other consultants shall be shared equally by the Parties.

Industry Expert. If, within 30 Days after the first Business Day of the period for which any Midcon and PRP Fee Adjustments are to be effective, the Parties have not entered into an amendment to this Agreement reflecting the Parties’ agreement regarding such annual adjustments Any Other Overrun Cost submitted to the Midcon and PRP Fee Adjustments, then either Party may notify ASC for approval shall be approved by the other ASC within [**] of its request to have an Industry Expert determine adjustments submission to the applicable Midcon and PRP Fee Adjustments, if any, and ASC. If the True-Up Payment, if any (the Party to give such a notice, the “Notifying Party”, and the recipient of such a notice, the “Receiving Party”). Upon the receipt of such a request for an Industry Expert determination from the Notifying Party, the Notifying Party and Receiving Party shall confer in good faith for up to 5 Business Days ASC is unable to agree on the selection of an Industry Expert to determine ifany Other Overrun Cost within such [**] period, taking into account the factors enumerated above in Section 3(b) of this Exhibit B, an adjustment to the Midcon Fees and PRP Fees is appropriate and, including with respect to the Annual Redetermination for the final Annual Redetermination Period, the amount of such Other Overrun Cost, then notwithstanding Section 3.1.5(b) of the Alliance Agreement, neither Party nor APIL shall have final decision making authority with respect to such matter and either Party may refer such matter to an Industry Expert mutually acceptable to the Parties. An “Industry Expert” shall be a single expert who is not a current or former employee or director, or current stockholder, of either Party or any True-Up Payment that is payableof their respective Affiliates and who has at least fifteen (15) years of biopharmaceutical industry experience, including familiarity with the prevailing costs of conducting drug development activities. If The Parties shall select the Parties are unable Industry Expert within [**] of submission of such Other Overrun Cost to agree upon the ASC. Within [**] of the selection of an Industry Expert within such 5 Business Day period, then each of the Notifying Party and Receiving Party will select an Industry Expert and the two firms so selected will select a Person to serve as the Industry Expert. Following such selection of an Industry Expert, each Party shall present submit to the Industry Expert a written statement of its such Party’s position on proposed adjustments to the Midcon Fees and PRP Fees (including its methodology for calculating such adjustments) not later than 30 Days after the selection amount of such Industry Expert. The Industry Expert mayOther Overrun Cost that should be approved as a Development Cost, within 30 Days after its receipt together with such supporting materials in support of such statements, request Party’s position that such additional information from either Party reasonably deems appropriate or both Parties as advisable in light of the timeframe for the Industry Expert may deem reasonably necessary to render his or desirable for purposes of making its determination. Each Party agrees to promptly provide the Industry Expert with all information so requested of ither decision hereunder. The Industry Expert shall make its determination use “baseball”-style arbitration methodology pursuant to which the Industry Expert shall select without modification only one Party’s position in a manner consistent with Section 3(b) of this Exhibit B above and Schedule B8his or her sole discretion. The Industry Expert shall be instructed to determine and submit to render his or her decision within [**] of the due date for submissions by the Parties its of their respective positions as provided above. The decision regarding (i) adjustments to all or any portion of the Midcon Fees and PRP Fees; provided, however, that any increase or decrease to any Midcon Fees and PRP Fees determined rendered by the Industry Expert shall be subject limited to the Midcon/PRP Redetermination Capamount, and (ii) the amount of any True-Up Payment due in respect if any, of the disputed Other Overrun Cost and shall be final Annual Redetermination Periodand binding on both Parties. The decision of Any Other Overrun Cost determined to be allowable by the Industry Expert shall be conclusive, binding upon, included in the Development Budget and non-appealable shared as a Development Cost hereunder. The Party whose position is not selected by the Parties; provided that, the decision of the Industry Expert shall not be binding on the Gatherer unless and until it has received an opinion from its counsel that such Fees as proposed to be adjusted will be treated as qualifying income (as defined in Section 7704(d) of the Internal Revenue Code of 1986solely bear all fees, as amended). In making a determination under this Section 3(c) of Exhibit B, an Industry Expert shall be authorized to engage such independent consultants, which may include an independent reservoir engineering firm or engineering firm that is a recognized leader in advising midstream companies on the design and estimated construction costs of gathering systems in the Midcon and PRP regions, provided that each of such consultants must not have a material conflict of interest in relation to Producers and CHK Parent, on the one hand, or Gatherer or its members, on the other hand. The costs and expenses of the Industry Expert and such other consultants shall be shared equally any costs and expenses reasonably incurred by the Partiesother Party in connection herewith, and such fees, costs and expenses shall not be eligible for cost sharing under this Agreement.