Negotiation and Dispute Resolution. (a) Any dispute, controversy or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement (other than the Commercial Agreements) or any of the Transactions, whether arising in contract or tort, between or among the Parties or any members of their respective Groups (each, a “Dispute” and, collectively, “Disputes”) shall first be referred by either Party or any of the members of their respective Groups for amicable negotiations by the Appointed Representatives by providing written notice of such Dispute in the manner provided by Section 13.7 below (“Dispute Notice”). All documents, communications and information disclosed in the course of such negotiations that are not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes. (i) If, for any reason, a Dispute is not resolved in writing by the Appointed Representatives within thirty (30) days of the date of delivery of the Dispute Notice, or if a party fails to appoint an Appointed Representative within the periods specified herein, such Dispute shall be submitted to final and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in effect at the time (the “AAA Rules”), except as modified herein: (ii) The seat of the arbitration shall be Denver, Colorado. (iii) The arbitration shall be conducted by three arbitrators. The claimant and respondent shall each appoint one arbitrator within thirty (30) days of receipt by respondent of the demand for arbitration. The two arbitrators so appointed shall appoint the third and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an arbitrator, or if the two party-appointed arbitrators fail to appoint the Chairperson, within the time periods specified herein, then any such arbitrator shall, upon any party’s request, be appointed by the AAA in accordance with the AAA Rules. (iv) By electing to proceed under the AAA Rules, the parties to the Dispute confirm that any dispute, claim or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunal, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitrate, shall be determined by the arbitration tribunal. (v) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated. (vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two parties to the arbitration, the arbitral tribunal shall have power to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim. (vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosing, without modification, the Proposed Damages Award of one of the sides, according to its determination of which Proposed Damages Award most comports with its assessment of the case. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/costs per paragraph (ix) hereof. (viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above. (ix) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator fees and AAA administrative costs. (x) The Parties intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any award made in any such arbitration proceedings. Judgment upon any award may be entered in any court of competent jurisdiction, including any court having jurisdiction over any party or any of its assets. (xi) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any award, each of the parties to the Dispute irrevocably and unconditionally (A) consents and submits to
Appears in 4 contracts
Samples: Separation and Distribution Agreement (Apartment Income REIT Corp.), Separation and Distribution Agreement (Aimco OP L.P.), Separation and Distribution Agreement (Apartment Income REIT Corp.)
Negotiation and Dispute Resolution. (a) Any disputeExcept as otherwise provided in this Agreement or in any Ancillary Agreement, controversy in the event of a controversy, dispute or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement (other than the Commercial Agreements) or otherwise arising out of, or in any way related to this Agreement or any Ancillary Agreement or any of the Transactions, whether arising in contract transactions contemplated hereby or tort, between or among the Parties or any members of their respective Groups thereby (each, a “Dispute” and”), collectivelythe party raising the Dispute shall give written notice of its nature to the other parties to the Dispute, “Disputes”) shall first be referred by either Party or any of the members of their respective Groups for amicable negotiations by and the Appointed Representatives by providing written notice shall negotiate in good faith for a reasonable period of time, and not less than thirty (30) days, to settle any such Dispute in the manner provided by Section 13.7 below Dispute.
(“Dispute Notice”). All documentsb) Nothing said or disclosed, communications and information disclosed nor any document produced, in the course of such negotiations any negotiations, conferences and discussions in connection with efforts to settle an Dispute that are is not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
(ic) If, for If a satisfactory resolution of any reason, a Dispute is not resolved in writing achieved by the Appointed Representatives within thirty a reasonable period of time, the parties hereto agree to seek to resolve such Dispute by mediation administered by Judicial Arbitration and Mediation Services, Inc. (30“JAMS”) and its mediation rules, and to bear equally the costs of the mediation. If the Dispute has not been resolved through mediation within ninety (90) days of after the date of delivery service of the Dispute Noticewritten notice of such Dispute, or if a such longer period as the parties may mutually agree in writing (the “Mediation Period”), each party fails will be entitled to appoint an Appointed Representative within refer the periods specified herein, such Dispute shall be submitted dispute to final and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in effect at Section 10.03. The statute of limitations applicable to the time (commencement of a lawsuit shall apply to the “AAA Rules”)commencement of an arbitration hereunder, except as modified herein:
(ii) The seat that no defense based on the running of the arbitration shall statute of limitations will be Denver, Colorado.
(iii) The arbitration shall be conducted by three arbitrators. The claimant and respondent shall each appoint one arbitrator within thirty (30) days available based upon the passage of receipt by respondent of time during the demand for arbitration. The two arbitrators so appointed shall appoint the third and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an arbitrator, or if the two party-appointed arbitrators fail to appoint the Chairperson, within the time periods specified herein, then any such arbitrator shall, upon any party’s request, be appointed by the AAA in accordance with the AAA Rules.
(iv) By electing to proceed under the AAA Rules, period that the parties are engaged in mediation pursuant to the Dispute confirm that any dispute, claim this paragraph or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunal, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitrate, shall be determined by the arbitration tribunal.
(v) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated.
(vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two parties to the arbitration, the arbitral tribunal shall have power to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim.
(vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosing, without modification, the Proposed Damages Award of one of the sides, according to its determination of which Proposed Damages Award most comports with its assessment of the case. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/costs per paragraph (ix) hereof.
(viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above.
(ix) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator fees and AAA administrative costs.
(x) The Parties intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any award made in any such arbitration proceedings. Judgment upon any award may be entered in any court of competent jurisdiction, including any court having jurisdiction over any party or any of its assets.
(xi) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any award, each of the parties to the Dispute irrevocably and unconditionally (A) consents and submits tomediation negotiations between their Appointed Representatives.
Appears in 4 contracts
Samples: Contribution and Sale Agreement (Five Point Holdings, LLC), Contribution and Sale Agreement (Lennar Corp /New/), Contribution and Sale Agreement (Lennar Corp /New/)
Negotiation and Dispute Resolution. (a) Any disputeExcept as otherwise provided in this Agreement or in any Ancillary Agreement, controversy in the event of a controversy, dispute or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement (other than the Commercial Agreements) or otherwise arising out of, or in any way related to this Agreement or any Ancillary Agreement or any of the Transactions, whether arising in contract transactions contemplated hereby or tort, between or among the Parties or any members of their respective Groups thereby (each, a “an "Agreement Dispute” and"), collectively, “Disputes”) shall first be referred by either Party or any of the members of their respective Groups for amicable negotiations by the Appointed Representatives by providing written notice shall negotiate in good faith for a reasonable period of time, and not less than thirty (30) days, to settle any such Dispute in the manner provided by Section 13.7 below Agreement Dispute.
(“Dispute Notice”). All documentsb) Nothing said or disclosed, communications and information disclosed nor any document produced, in the course of such negotiations any negotiations, conferences and discussions in connection with efforts to settle an Agreement Dispute that are is not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
(ic) If, for If a satisfactory resolution of any reason, a Agreement Dispute is not resolved in writing achieved by the Appointed Representatives within thirty a reasonable period of time, the Parties agree to seek to resolve such Agreement Dispute by mediation administered by Judicial Arbitration and Mediation Services, Inc. (30"JAMS") and its mediation rules, and to bear equally the costs of the mediation. If the Agreement Dispute has not been resolved through mediation within ninety (90) days of after the date of delivery service of the Dispute Noticewritten notice of such Agreement Dispute, or if a party fails such longer period as the Parties may mutually agree in writing (the "Mediation Period"), each Party will be entitled to appoint an Appointed Representative within refer the periods specified herein, such Dispute shall be submitted dispute to final and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in effect at the time (the “AAA Rules”), except as modified herein:
(ii) The seat of the arbitration shall be Denver, ColoradoSection 10.3.
(iii) The arbitration shall be conducted by three arbitrators. The claimant and respondent shall each appoint one arbitrator within thirty (30) days of receipt by respondent of the demand for arbitration. The two arbitrators so appointed shall appoint the third and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an arbitrator, or if the two party-appointed arbitrators fail to appoint the Chairperson, within the time periods specified herein, then any such arbitrator shall, upon any party’s request, be appointed by the AAA in accordance with the AAA Rules.
(iv) By electing to proceed under the AAA Rules, the parties to the Dispute confirm that any dispute, claim or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunal, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitrate, shall be determined by the arbitration tribunal.
(v) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated.
(vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two parties to the arbitration, the arbitral tribunal shall have power to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim.
(vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosing, without modification, the Proposed Damages Award of one of the sides, according to its determination of which Proposed Damages Award most comports with its assessment of the case. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/costs per paragraph (ix) hereof.
(viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above.
(ix) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator fees and AAA administrative costs.
(x) The Parties intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any award made in any such arbitration proceedings. Judgment upon any award may be entered in any court of competent jurisdiction, including any court having jurisdiction over any party or any of its assets.
(xi) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any award, each of the parties to the Dispute irrevocably and unconditionally (A) consents and submits to
Appears in 3 contracts
Samples: Separation and Distribution Agreement (FTD Companies, Inc.), Separation and Distribution Agreement (FTD Companies, Inc.), Separation and Distribution Agreement (FTD Companies, Inc.)
Negotiation and Dispute Resolution. (a) Any disputeExcept as otherwise provided in this Agreement or in any Ancillary Agreement, controversy in the event of a controversy, dispute or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement (other than the Commercial Agreements) or otherwise arising out of, or in any way related to this Agreement or any Ancillary Agreement or any of the Transactions, whether arising in contract transactions contemplated hereby or tort, between or among the Parties or any members of their respective Groups thereby (each, a an “Agreement Dispute” and”), collectively, “Disputes”) shall first be referred by either Party or any of the members of their respective Groups for amicable negotiations by the Appointed Representatives by providing written notice shall negotiate in good faith for a reasonable period of time to settle any such Dispute in the manner provided by Section 13.7 below Agreement Dispute.
(“Dispute Notice”). All documentsb) Nothing said or disclosed, communications and information disclosed nor any document produced, in the course of such negotiations any negotiations, conferences and discussions in connection with efforts to settle an Agreement Dispute that are is not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
(ic) If, for If a satisfactory resolution of any reason, a Agreement Dispute is not resolved in writing achieved by the Appointed Representatives within thirty a reasonable period of time, the Parties agree to seek to resolve such Agreement Dispute by mediation administered by Dispute Prevention & Resolution, Inc. (30“DPR”) and its mediation rules, and to bear equally the costs of the mediation. If the Agreement Dispute has not been resolved through mediation within 90 days of after the date of delivery service of the Dispute Noticewritten notice of such Agreement Dispute, or if a such longer period as the Parties may mutually agree in writing (the “Mediation Period”), each party fails will be entitled to appoint an Appointed Representative within refer the periods specified herein, such Dispute shall be submitted dispute to final and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in effect at the time (the “AAA Rules”), except as modified herein:
(ii) The seat of the arbitration shall be Denver, ColoradoSection 10.3.
(iii) The arbitration shall be conducted by three arbitrators. The claimant and respondent shall each appoint one arbitrator within thirty (30) days of receipt by respondent of the demand for arbitration. The two arbitrators so appointed shall appoint the third and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an arbitrator, or if the two party-appointed arbitrators fail to appoint the Chairperson, within the time periods specified herein, then any such arbitrator shall, upon any party’s request, be appointed by the AAA in accordance with the AAA Rules.
(iv) By electing to proceed under the AAA Rules, the parties to the Dispute confirm that any dispute, claim or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunal, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitrate, shall be determined by the arbitration tribunal.
(v) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated.
(vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two parties to the arbitration, the arbitral tribunal shall have power to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim.
(vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosing, without modification, the Proposed Damages Award of one of the sides, according to its determination of which Proposed Damages Award most comports with its assessment of the case. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/costs per paragraph (ix) hereof.
(viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above.
(ix) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator fees and AAA administrative costs.
(x) The Parties intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any award made in any such arbitration proceedings. Judgment upon any award may be entered in any court of competent jurisdiction, including any court having jurisdiction over any party or any of its assets.
(xi) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any award, each of the parties to the Dispute irrevocably and unconditionally (A) consents and submits to
Appears in 3 contracts
Samples: Separation and Distribution Agreement (A & B II, Inc.), Separation and Distribution Agreement (Alexander & Baldwin Inc), Separation and Distribution Agreement (A & B II, Inc.)
Negotiation and Dispute Resolution. (ai) Any dispute, controversy or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement (other than the Commercial Agreements) or any of the Transactions, whether arising in contract transactions contemplated hereby or tort, thereby between or among the Parties or any members of their respective Groups (each, a “Dispute” and, collectively, “Disputes”) shall first be referred by either Party or any of the members of their respective Groups for amicable negotiations by a committee (the Appointed Representatives “Dispute Committee”) by providing written notice of such Dispute in the manner provided by Section 13.7 below 12.8 (“Dispute Notice”). The Dispute Committee shall consist of six (6) individuals, of which (i) three (3) individuals shall consist of Exelon’s Chief Financial Officer, Exelon’s General Counsel and one (1) individual appointed by Exelon’s General Counsel and (ii) three (3) individuals shall consist of Constellation’s Chief Financial Officer, Constellation’s General Counsel and one (1) individual appointed by Constellation’s General Counsel. The respective General Counsels shall establish any desired meeting schedule and procedures for the Dispute Committee. A Dispute shall be considered resolved by the Dispute Committee if the respective General Counsels concur there is a resolution.
(ii) If, for any reason, a satisfactory resolution of any Dispute is not achieved by the Dispute Committee within thirty (30) days of the date of delivery of the Dispute Notice, such Dispute may be referred by a Party to the Appointed Representatives by providing written notice of such referral in the manner provided in Section 12.8 (“Dispute Referral Notice”). All documents, communications and information disclosed in the course of such negotiations involving the Dispute Committee or the Appointed Representatives that are not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
(ib) If, for any reason, a satisfactory resolution of any Dispute is not resolved in writing achieved by the Appointed Representatives within thirty (30) days of the date of delivery of the Dispute Referral Notice, or if a party fails to appoint an Appointed Representative within the periods specified herein, such Dispute shall may be submitted to referred by a Party for final and binding resolution by arbitration administered by the American Arbitration Association in accordance with (“AAA”) under its Commercial Arbitration Rules then in effect at the time (the “AAA Rules”), except as modified herein:
(ii) The seat of the arbitration shall be Denver, Colorado.
(iiii) The arbitration shall be conducted by held in Chicago, Illinois.
(ii) There shall be (A) a sole arbitrator if the amount in dispute, inclusive of all claims and counterclaims, total less than $10 million or (B) a panel of three arbitratorsarbitrators if the amount in dispute, inclusive of all claims and counterclaims, total $10 million or more. The claimant and respondent panel of three arbitrators shall be chosen as follows: each party shall appoint one arbitrator within thirty (30) days of receipt in the manner provided by respondent of the demand for arbitration. The two arbitrators so appointed shall appoint the third AAA Rules; and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an arbitrator, or if the two party-appointed arbitrators fail to shall jointly appoint the Chairpersonthird arbitrator, within who shall chair the time periods specified hereinarbitral tribunal. Upon the written request of any party to the Dispute, then any such arbitrator shall, upon any party’s request, not timely appointed shall be appointed by the AAA in accordance with the manner provided in the AAA Rules. If the arbitration shall be before a sole arbitrator, the sole arbitrator, who shall be independent, shall be appointed by agreement of the parties. If the parties cannot agree on a sole independent arbitrator, then upon written application by either party, the sole arbitrator shall be appointed pursuant to the AAA Rules.
(iviii) By electing to proceed under the AAA Rules, the parties to the Dispute confirm that any dispute, claim or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunalDispute, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitratethis Section 10.2, shall be determined by the arbitration tribunalarbitrator(s).
(viv) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated.
(vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two The parties to the arbitration, Dispute intend that the arbitral tribunal arbitrator(s) shall have power apply the substantive Laws of the State of Delaware to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim.
(vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosingany Dispute hereunder, without modification, regard to any choice of law principles thereof that would mandate the Proposed Damages Award of one application of the sides, according to its determination Laws of which Proposed Damages Award most comports with its assessment of the caseanother jurisdiction. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/costs per paragraph (ix) hereof.
(viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above.
(ix) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator fees and AAA administrative costs.
(x) The Parties parties further intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal arbitrator(s) shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any enforcement of or entry of judgment upon such award made in any such arbitration proceedings. Judgment upon any award may be entered Delaware state or federal court, or in any other court of competent jurisdiction, including any court having jurisdiction over any party or any of its assets.
(xiv) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal arbitrator(s) shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s arbitrator’s(s’) orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any awardaction, each of the parties to the Dispute irrevocably and unconditionally (Ai) consents and submits toto the jurisdiction and venue of the courts of the State of Delaware and the federal courts of the United States of America located within the State of Delaware (the “Delaware Courts”); (ii) waives, to the fullest extent it may effectively do so, any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens or any right of objection to jurisdiction on account of its place of incorporation or domicile, which it may now or hereafter have to the bringing of any such action or proceeding in any Delaware Court; (iii) consents to service of process in the manner provided by Section 12.8 or in any other manner permitted by law; and (iv)
Appears in 2 contracts
Samples: Separation Agreement (Constellation Energy Corp), Separation Agreement (Exelon Corp)
Negotiation and Dispute Resolution. (a) Any disputeExcept as otherwise provided in this Agreement or in any Ancillary Agreement, controversy in the event of a controversy, dispute or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement (other than the Commercial Agreements) or otherwise arising out of, or in any way related to this Agreement or any Ancillary Agreement or any of the Transactions, whether arising in contract transactions contemplated hereby or tort, between or among the Parties or any members of their respective Groups thereby (each, a an “Agreement Dispute” and”), collectively, “Disputes”) shall first be referred by either Party or any of the members of their respective Groups for amicable negotiations by the Appointed Representatives by providing written notice shall negotiate in good faith for a reasonable period of time, and not less than thirty (30) days, to settle any such Dispute in the manner provided by Section 13.7 below Agreement Dispute.
(“Dispute Notice”). All documentsb) Nothing said or disclosed, communications and information disclosed nor any document produced, in the course of such negotiations any negotiations, conferences and discussions in connection with efforts to settle an Agreement Dispute that are is not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
(ic) If, for If a satisfactory resolution of any reason, a Agreement Dispute is not resolved in writing achieved by the Appointed Representatives within thirty a reasonable period of time, the Parties agree to seek to resolve such Agreement Dispute by mediation administered by Judicial Arbitration and Mediation Services, Inc. (30“JAMS”) and its mediation rules, and to bear equally the costs of the mediation. If the Agreement Dispute has not been resolved through mediation within ninety (90) days of after the date of delivery service of the Dispute Noticewritten notice of such Agreement Dispute, or if a party fails such longer period as the Parties may mutually agree in writing (the “Mediation Period”), each Party will be entitled to appoint an Appointed Representative within refer the periods specified herein, such Dispute shall be submitted dispute to final and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in effect at the time (the “AAA Rules”), except as modified herein:
(ii) The seat of the arbitration shall be Denver, ColoradoSection 10.3.
(iii) The arbitration shall be conducted by three arbitrators. The claimant and respondent shall each appoint one arbitrator within thirty (30) days of receipt by respondent of the demand for arbitration. The two arbitrators so appointed shall appoint the third and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an arbitrator, or if the two party-appointed arbitrators fail to appoint the Chairperson, within the time periods specified herein, then any such arbitrator shall, upon any party’s request, be appointed by the AAA in accordance with the AAA Rules.
(iv) By electing to proceed under the AAA Rules, the parties to the Dispute confirm that any dispute, claim or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunal, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitrate, shall be determined by the arbitration tribunal.
(v) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated.
(vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two parties to the arbitration, the arbitral tribunal shall have power to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim.
(vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosing, without modification, the Proposed Damages Award of one of the sides, according to its determination of which Proposed Damages Award most comports with its assessment of the case. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/costs per paragraph (ix) hereof.
(viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above.
(ix) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator fees and AAA administrative costs.
(x) The Parties intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any award made in any such arbitration proceedings. Judgment upon any award may be entered in any court of competent jurisdiction, including any court having jurisdiction over any party or any of its assets.
(xi) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any award, each of the parties to the Dispute irrevocably and unconditionally (A) consents and submits to
Appears in 2 contracts
Samples: Separation and Distribution Agreement (FTD Companies, Inc.), Separation and Distribution Agreement (United Online Inc)
Negotiation and Dispute Resolution. (a) Any dispute, controversy or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement (other than the Commercial Agreements) or any of the Transactions, whether arising in contract transactions contemplated hereby or tort, thereby between or among the Parties or any members of their respective Groups (each, a “Dispute” and, collectively, “Disputes”) shall first be referred by either Party or any of the members of their respective Groups for amicable negotiations by the Appointed Representatives by providing written notice of such Dispute in the manner provided by Section 13.7 12.7 below (“Dispute Notice”). All documents, communications and information disclosed in the course of such negotiations that are not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
(ib) If, for any reason, a satisfactory resolution of any Dispute is not resolved in writing achieved by the Appointed Representatives within thirty (30) days of the date of delivery of the Dispute Notice, or if a party fails to appoint an Appointed Representative within the periods specified herein, such Dispute shall be submitted to referred for final and binding resolution by arbitration administered by the American Arbitration Association in accordance with (“AAA”) under its Commercial Arbitration Rules then in effect at the time (the “AAA Rules”), except as modified herein:
(ii) The seat of the arbitration shall be Denver, Colorado.
(iiii) The arbitration shall be conducted by held in Orange County, California. There shall be three arbitrators. The claimant and respondent Each Party shall each appoint one arbitrator within thirty (30) days of receipt in the manner provided by respondent of the demand for arbitrationAAA Rules. The two Party-appointed arbitrators so appointed shall jointly appoint the third and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an arbitrator, or if who shall chair the two party-appointed arbitrators fail arbitral tribunal. Upon the written request of any party to appoint the ChairpersonDispute, within the time periods specified herein, then any such arbitrator shall, upon any party’s request, not timely shall be appointed by the AAA in accordance with the manner provided in the AAA Rules.
(ivii) By electing to proceed under the AAA Rules, the parties to the Dispute confirm that any dispute, claim Claim or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunalDispute, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitratethis Section 10.2, shall be determined by the arbitration tribunalarbitrators.
(viii) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated.
(vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two The parties to the arbitration, Dispute intend that the arbitral tribunal arbitrators shall have power apply the substantive Laws of the State of Delaware to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim.
(vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosingany Dispute hereunder, without modification, regard to any choice of law principles thereof that would mandate the Proposed Damages Award of one application of the sides, according to its determination Laws of which Proposed Damages Award most comports with its assessment of the caseanother jurisdiction. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/costs per paragraph (ix) hereof.
(viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above.
(ix) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator fees and AAA administrative costs.
(x) The Parties parties further intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal arbitrators shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any award made in any such arbitration proceedings. Judgment proceedings and agree to enforcement of or entry of judgment upon any award may be entered such award, in any California state or federal court, or in any other court of competent jurisdiction, including any court having jurisdiction over any party or any of its assets.
(xiiv) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any award, each of the parties to the Dispute irrevocably and unconditionally (Ai) consents and submits toto the jurisdiction and venue of the Courts of the State of California and the Federal Courts of the United States of America located within the State of California (the “California Courts”); (ii) waives, to the fullest extent it may effectively do so, any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens or any right of objection to jurisdiction on account of its place of incorporation or domicile, which it may now or hereafter have to the bringing of any such action or proceeding in any California Court; (iii) consents to service of process in the manner provided by Section 12.8 below or in any other manner permitted by law; and (iv)
Appears in 2 contracts
Samples: Master Separation Agreement (Pennant Group, Inc.), Master Separation Agreement (Pennant Group, Inc.)
Negotiation and Dispute Resolution. (a) Any dispute, controversy or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement (other than the Commercial Agreements) or any of the Transactions, whether arising in contract or tort, between or among the Parties or any members of their respective Groups (each, a “Dispute” and, collectively, “Disputes”) shall first be referred by either Party or any of the members of their respective Groups for amicable negotiations by the Appointed Representatives by providing written notice of such Dispute in the manner provided by Section 13.7 below (“Dispute Notice”). All documents, communications and information disclosed in the course of such negotiations that are not otherwise independently discoverable shall not be offered or received as evidence in any hearing or judicial proceeding or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
(i) If, for any reason, a Dispute is not resolved in writing by the Appointed Representatives within thirty (30) days of the date of delivery of the Dispute Notice, or if a party fails to appoint an Appointed Representative within the periods specified herein, such Dispute shall be submitted to final and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in effect at the time (the “AAA Rules”), except as modified herein:
(ii) The seat of the arbitration shall be Denver, Colorado.
(iii) The arbitration shall be conducted by three arbitrators. The claimant and respondent shall each appoint one arbitrator within thirty (30) days of receipt by respondent of the demand for arbitration. The two arbitrators so appointed shall appoint the third and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an arbitrator, or if the two party-appointed arbitrators fail to appoint the Chairperson, within the time periods specified herein, then any such arbitrator shall, upon any party’s request, be appointed by the AAA in accordance with the AAA Rules.
(iv) By electing to proceed under the AAA Rules, the parties to the Dispute confirm that any dispute, claim or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunal, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitrate, shall be determined by the arbitration tribunal.
(v) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated. If a Person recovers a damages aware, that Person shall be entitled to recover pre-award and post-award interest as allowed and calculated under Delaware Law.
(vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two parties to the arbitration, the arbitral tribunal shall have power to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim.
(vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosing, without modification, the Proposed Damages Award of one of the sides, according to its determination of which Proposed Damages Award most comports with its assessment of the case. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/fees and costs per paragraph (ix) hereof.
(viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above.
(ix) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator arbitrators’ fees and AAA administrative costs.
(x) The Parties intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any award made in any such arbitration proceedings. Judgment upon any award may be entered in any court of competent jurisdiction, including any court having jurisdiction over any party or any of its assets.
(xi) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any award, each of the parties to the Dispute irrevocably and unconditionally (A) consents and submits toto the non-exclusive jurisdiction and venue of the Courts of the State of Colorado and the Federal Courts of the United States of America located within the State of Colorado (the “Colorado Courts”); (B) waives, to the fullest extent it may effectively do so, any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens or any right of objection to jurisdiction on account of its place of incorporation or domicile, which it may now or hereafter have to the bringing of any such action or proceeding in any Colorado Court; (C) consents to service of process in the manner provided by Section 13.7 below or in any other manner permitted by Law; and (D)
Appears in 2 contracts
Samples: Separation and Distribution Agreement (Aimco Properties L.P.), Separation and Distribution Agreement (Aimco OP L.P.)
Negotiation and Dispute Resolution. (a) Any dispute, controversy or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement (other than the Commercial Agreements) or any of the Transactions, whether arising in contract transactions contemplated hereby or tort, thereby between or among the Parties or any members of their respective Groups (each, a “Dispute” and, collectively, “Disputes”) shall first be referred by either Party or any of the members of their respective Groups for amicable negotiations by the Appointed Representatives by providing written notice of such Dispute in the manner provided by Section 13.7 12.7 below (“Dispute Notice”). All documents, communications and information disclosed in the course of such negotiations that are not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
(ib) If, for any reason, a satisfactory resolution of any Dispute is not resolved in writing achieved by the Appointed Representatives within thirty (30) days of the date of delivery of the Dispute Notice, or if a party fails to appoint an Appointed Representative within the periods specified herein, such Dispute shall be submitted to referred for final and binding resolution by arbitration administered by the American Arbitration Association in accordance with (“AAA”) under its Commercial Arbitration Rules then in effect at the time (the “AAA Rules”), except as modified herein:
(ii) The seat of the arbitration shall be Denver, Colorado.
(iiii) The arbitration shall be conducted by held in Orange County, California. There shall be three arbitrators. The claimant and respondent Each Party shall each appoint one arbitrator within thirty (30) days of receipt in the manner provided by respondent of the demand for arbitrationAAA Rules. The two Party-appointed arbitrators so appointed shall jointly appoint the third and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an arbitrator, or if who shall chair the two party-appointed arbitrators fail arbitral tribunal. Upon the written request of any party to appoint the ChairpersonDispute, within the time periods specified herein, then any such arbitrator shall, upon any party’s request, not timely shall be appointed by the AAA in accordance with the manner provided in the AAA Rules.
(ivii) By electing to proceed under the AAA Rules, the parties to the Dispute confirm that any dispute, claim Claim or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunalDispute, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitratethis Section 10.2, shall be determined by the arbitration tribunalarbitrators.
(viii) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated.
(vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two The parties to the arbitration, Dispute intend that the arbitral tribunal arbitrators shall have power apply the substantive Laws of the State of Delaware to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim.
(vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosingany Dispute hereunder, without modification, regard to any choice of law principles thereof that would mandate the Proposed Damages Award of one application of the sides, according to its determination Laws of which Proposed Damages Award most comports with its assessment of the caseanother jurisdiction. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/costs per paragraph (ix) hereof.
(viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above.
(ix) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator fees and AAA administrative costs.
(x) The Parties parties further intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal arbitrators shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any award made in any such arbitration proceedings. Judgment proceedings and agree to enforcement of or entry of judgment upon any award may be entered such award, in any California state or federal court, or in any other court of competent jurisdiction, including any court having jurisdiction over any party or any of its assets.
(xiiv) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any award, each of the parties to the Dispute irrevocably and unconditionally (A) consents and submits to’s
Appears in 1 contract
Negotiation and Dispute Resolution. (a) Any dispute, controversy or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement (other than the Commercial Agreements) or any of the Transactions, whether arising in contract or tort, between or among the Parties or any members of their respective Groups (each, a “Dispute” and, collectively, “Disputes”) shall first be referred by either Party or any of the members of their respective Groups for amicable negotiations by the Appointed Representatives by providing written notice of such Dispute in the manner provided by Section 13.7 12.7 below (“Dispute Notice”). All documents, communications and information disclosed in the course of such negotiations that are not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
(ib) If, for any reason, a satisfactory resolution of any Dispute is not resolved in writing achieved by the Appointed Representatives within thirty (30) days of the date of delivery of the Dispute Notice, or if a party fails to appoint an Appointed Representative within the periods specified herein, such Dispute shall be submitted to referred for final and binding resolution by arbitration administered by the American Judicial Arbitration Association in accordance with and Mediation Services, Inc. (“JAMS”) under its Commercial Comprehensive Arbitration Rules and Procedures then in effect at the time (the “AAA JAMS Rules”), except as modified herein:
(ii) The seat of the arbitration shall be Denver, Colorado.
(iiii) The arbitration shall be conducted by three arbitratorsheld in Los Angeles, California. The claimant and respondent There shall each appoint one arbitrator within thirty (30) days of receipt by respondent of the demand for arbitration. The two arbitrators so appointed shall appoint the third and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an be a single arbitrator, or if the two party-appointed arbitrators fail to appoint the Chairperson, within the time periods specified herein, then any such arbitrator shall, upon any party’s request, who shall be appointed by in the AAA manner provided in accordance with the AAA JAMS Rules.
(ivii) By electing to proceed under the AAA JAMS Rules, the parties to the Dispute confirm that any dispute, claim or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunalDispute, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitratethis Section 10.2, shall be determined by the arbitration tribunalarbitrator.
(v) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated.
(vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two parties to the arbitration, the arbitral tribunal shall have power to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim.
(vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosing, without modification, the Proposed Damages Award of one of the sides, according to its determination of which Proposed Damages Award most comports with its assessment of the case. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/costs per paragraph (ix) hereof.
(viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above.
(ixiii) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator fees and AAA administrative costs.
(x) The Parties parties intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal arbitrator shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any award made in any such arbitration proceedings. Judgment proceedings and agree to enforcement of or entry of judgment upon any award may be entered such award, in any court of competent jurisdiction, including any court having jurisdiction over any party California state or any of its assetsfederal court.
(xiiv) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any award, each of the parties to the Dispute irrevocably and unconditionally (Ai) consents and submits toto the jurisdiction and venue of the Courts of the State of California and the Federal Courts of the United States of America located within the State of California (the “California Courts”); (ii) waives, to the fullest extent it may effectively do so, any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens or any right of objection to jurisdiction on account of its place of incorporation or domicile, which it may now or hereafter have to the bringing of any such action or proceeding in any California Court; (iii) consents to service of process in the manner provided by Section 12.8 below or in any other manner permitted by law; and (iv)
Appears in 1 contract
Samples: Separation and Distribution Agreement (Quality Care Properties, Inc.)
Negotiation and Dispute Resolution. (a) Any dispute, controversy or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement (other than the Commercial Agreements) or any of the Transactions, whether arising in contract or tort, between or among the Parties or any members of their respective Groups (each, a “Dispute” and, collectively, “Disputes”) shall first be referred by either Party or any of the members of their respective Groups for amicable negotiations by the Appointed Representatives by providing written notice of such Dispute in the manner provided by Section 13.7 12.7 below (“Dispute Notice”). All documents, communications and information disclosed in the course of such negotiations that are not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
(ib) If, for any reason, a satisfactory resolution of any Dispute is not resolved in writing achieved by the Appointed Representatives within thirty (30) days of the date of delivery of the Dispute Notice, or if a party fails to appoint an Appointed Representative within the periods specified herein, such Dispute shall be submitted to referred for final and binding resolution by arbitration administered by the American Judicial Arbitration Association in accordance with and Mediation Services, Inc. (“JAMS”) under its Commercial Comprehensive Arbitration Rules and Procedures then in effect at the time (the “AAA JAMS Rules”), except as modified herein:
(ii) The seat of the arbitration shall be Denver, Colorado.
(iiii) The arbitration shall be conducted by three arbitratorsheld in Los Angeles, California. The claimant and respondent There shall each appoint one arbitrator within thirty (30) days of receipt by respondent of the demand for arbitration. The two arbitrators so appointed shall appoint the third and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an be a single arbitrator, or if the two party-appointed arbitrators fail to appoint the Chairperson, within the time periods specified herein, then any such arbitrator shall, upon any party’s request, who shall be appointed by in the AAA manner provided in accordance with the AAA JAMS Rules.
(ivii) By electing to proceed under the AAA JAMS Rules, the parties to the Dispute confirm that any dispute, claim or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunalDispute, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitratethis Section 10.2, shall be determined by the arbitration tribunalarbitrator.
(v) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated.
(vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two parties to the arbitration, the arbitral tribunal shall have power to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim.
(vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosing, without modification, the Proposed Damages Award of one of the sides, according to its determination of which Proposed Damages Award most comports with its assessment of the case. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/costs per paragraph (ix) hereof.
(viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above.
(ixiii) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator fees and AAA administrative costs.
(x) The Parties parties intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal arbitrator shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any award made in any such arbitration proceedings. Judgment proceedings and agree to enforcement of or entry of judgment upon any award may be entered such award, in any court of competent jurisdiction, including any court having jurisdiction over any party California state or any of its assetsfederal court.
(xiiv) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any award, each of the parties to the Dispute irrevocably and unconditionally (A) consents and submits to
Appears in 1 contract
Negotiation and Dispute Resolution. (a) Any disputeExcept as otherwise provided in this Agreement or in any Ancillary Agreement, controversy any controversy, dispute or claim arising out of, in connection with, with or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement, or otherwise arising out of or in any way related to this Agreement (other than the Commercial Agreements) or any Ancillary Agreement or any of the Transactions, whether arising in contract transactions contemplated hereby or tort, between or among the Parties or any members of their respective Groups thereby (each, a an “Agreement Dispute” and”), collectively, “Disputes”shall be resolved in the manner provided in this Article X.
(b) shall first be referred by either Either Party or may initiate negotiation of any of the members of their respective Groups for amicable negotiations by Agreement Dispute among the Appointed Representatives by providing giving the other Party a written notice of such the Agreement Dispute in the manner provided by Section 13.7 below (a “Dispute Notice”). All documentsThe Appointed Representatives shall negotiate in good faith for thirty (30) days from the date a Dispute Notice is received to settle any such Agreement Dispute.
(c) Nothing said or disclosed, communications and information disclosed nor any document produced, in the course of such negotiations any negotiations, conferences and discussions in connection with efforts to settle an Agreement Dispute that are is not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
(id) If, for If a satisfactory resolution of any reason, a Agreement Dispute is not resolved in writing achieved by the Appointed Representatives within thirty (30) days days, the Parties agree to seek to resolve such Agreement Dispute by mediation administered by Dispute Prevention & Resolution, Inc. (“DPR”) and its mediation rules, and to bear equally the costs of the date mediation. If the Agreement Dispute has not been resolved through mediation within ninety (90) days after the initiation of delivery of the Dispute Noticea mediation proceeding with respect to such Agreement Dispute, or if a party fails such longer period as the Parties may mutually agree in writing (the “Mediation Period”), each Party will be entitled to appoint an Appointed Representative within refer the periods specified herein, such Dispute shall be submitted dispute to final and binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in effect at the time (the “AAA Rules”), except as modified herein:
(ii) The seat of the arbitration shall be Denver, ColoradoSection 10.3.
(iii) The arbitration shall be conducted by three arbitrators. The claimant and respondent shall each appoint one arbitrator within thirty (30) days of receipt by respondent of the demand for arbitration. The two arbitrators so appointed shall appoint the third and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an arbitrator, or if the two party-appointed arbitrators fail to appoint the Chairperson, within the time periods specified herein, then any such arbitrator shall, upon any party’s request, be appointed by the AAA in accordance with the AAA Rules.
(iv) By electing to proceed under the AAA Rules, the parties to the Dispute confirm that any dispute, claim or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunal, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitrate, shall be determined by the arbitration tribunal.
(v) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated.
(vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two parties to the arbitration, the arbitral tribunal shall have power to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim.
(vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosing, without modification, the Proposed Damages Award of one of the sides, according to its determination of which Proposed Damages Award most comports with its assessment of the case. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/costs per paragraph (ix) hereof.
(viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above.
(ix) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator fees and AAA administrative costs.
(x) The Parties intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any award made in any such arbitration proceedings. Judgment upon any award may be entered in any court of competent jurisdiction, including any court having jurisdiction over any party or any of its assets.
(xi) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any award, each of the parties to the Dispute irrevocably and unconditionally (A) consents and submits to
Appears in 1 contract
Samples: Separation and Distribution Agreement (ASB Hawaii, Inc.)
Negotiation and Dispute Resolution. (a) Any dispute, controversy or claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, enforceability, validity, termination or breach of this Agreement or any Ancillary Agreement (other than the Commercial Agreements) or any of the Transactions, whether arising in contract transactions contemplated hereby or tort, thereby between or among the Parties or any members of their respective Groups (each, a “Dispute” and, collectively, “Disputes”) shall first be referred by either Party or any of the members of their respective Groups for amicable negotiations by the Appointed Representatives by providing written notice of such Dispute in the manner provided by Section 13.7 12.7 below (“Dispute Notice”). All documents, communications and information disclosed in the course of such negotiations that are not otherwise independently discoverable shall not be offered or received as evidence or used for impeachment or for any other purpose, but shall be considered as to have been disclosed for settlement purposes.
(ib) If, for any reason, a satisfactory resolution of any Dispute is not resolved in writing achieved by the Appointed Representatives within thirty (30) days of the date of delivery of the Dispute Notice, or if a party fails to appoint an Appointed Representative within the periods specified herein, such Dispute shall be submitted to referred for final and binding resolution by arbitration administered by the American Arbitration Association in accordance with (“AAA”) under its Commercial Arbitration Rules then in effect at the time (the “AAA Rules”), except as modified herein:
(ii) The seat of the arbitration shall be Denver, Colorado.
(iiii) The arbitration shall be conducted by held in Los Angeles, California. There shall be three arbitrators. The claimant and respondent Each Party shall each appoint one arbitrator within thirty (30) days of receipt in the manner provided by respondent of the demand for arbitrationAAA Rules. The two Party-appointed arbitrators so appointed shall jointly appoint the third and presiding arbitrator (the “Chairperson”) within thirty (30) days of the appointment of the second arbitrator. If any Party fails to appoint an arbitrator, or if who shall chair the two party-appointed arbitrators fail arbitral tribunal. Upon the written request of any party to appoint the ChairpersonDispute, within the time periods specified herein, then any such arbitrator shall, upon any party’s request, not timely shall be appointed by the AAA in accordance with the manner provided in the AAA Rules.
(ivii) By electing to proceed under the AAA Rules, the parties to the Dispute confirm that any dispute, claim or controversy concerning the arbitrability of a Dispute or the jurisdiction of the arbitral tribunalDispute, including whether arbitration has been waived, whether an assignee of this Agreement is bound to arbitrate, or as to the existence, scope, validity, interpretation or enforceability of the parties’ agreement to arbitratethis Section 10.2, shall be determined by the arbitration tribunalarbitrators.
(viii) Each party shall submit its claims according to the timetable established by the arbitral tribunal. With respect to each claim for monetary relief advanced in the arbitration and/or any claim under the indemnification provisions of Article IX, each side’s submissions shall specify the proposed monetary relief that it contends that the arbitral tribunal should award (in each case, the “Proposed Damages Award”), which Proposed Damages Award may be expressed as “zero”. Each side’s Proposed Damages Award shall also state whether pre- or post-award interest should be awarded, and if so, at what interest rate, and the date from which such interest (if any) should be calculated.
(vi) As to each claim for monetary relief and/or any claim under the indemnification provisions of Article IX, there shall be only two Proposed Damages Awards (one for each side of the claim). Where there are more than two The parties to the arbitration, Dispute intend that the arbitral tribunal arbitrators shall have power apply the substantive Laws of the State of Delaware to make appropriate directions as to which parties shall comprise each “side” for purposes of submitting Proposed Damages Awards, in every instance to ensure a proper alignment of parties with respect to each such claim.
(vii) In rendering its award, insofar as monetary relief and/or relief under the indemnification provisions of Article IX is claimed, the arbitral tribunal shall be limited to choosingany Dispute hereunder, without modification, regard to any choice of law principles thereof that would mandate the Proposed Damages Award of one application of the sides, according to its determination Laws of which Proposed Damages Award most comports with its assessment of the caseanother jurisdiction. The arbitral tribunal shall not award any monetary relief of any kind except as set forth in this paragraph, provided that this will not limit the power of the arbitral tribunal: (A) to award relief per paragraph (viii) hereof; (B) to apply any statute of limitation that it determines is applicable to any claim; (C) to dismiss or exclude any claim that it determines is: (1) precluded by any part of this Agreement, including without limitation the provisions of Articles VI and IX hereof or of any part of any Ancillary Agreement, and/or (2) beyond the scope of this Section 10.2; (D) to receive and determine dispositive motions in accordance with the AAA Rules; and/or (E) to apportion fees/costs per paragraph (ix) hereof.
(viii) In addition to monetary relief, the arbitral tribunal shall be empowered to award equitable relief, including, but not limited to, an injunction and specific performance of any obligation under this Agreement; provided that a claim under the indemnification provisions of Article IX shall at all times be governed by the procedures set forth in paragraphs (v) through (vii) above.
(ix) The arbitral tribunal shall award the prevailing party its attorneys’ fees and costs reasonably incurred in the arbitration, including the prevailing party’s share of the arbitrator fees and AAA administrative costs.
(x) The Parties parties further intend that this agreement to arbitrate shall be valid, enforceable and irrevocable, and any award rendered by the arbitration tribunal arbitrators shall be final and binding on all the parties to the Dispute. The parties to the Dispute agree to comply with any award made in any such arbitration proceedings. Judgment proceedings and agree to enforcement of or entry of judgment upon any award may be entered such award, in any California state or federal court, or in any other court of competent jurisdiction, including any court having jurisdiction over any party or any of its assets.
(xiiv) By agreeing to arbitration, the parties to the Dispute do not intend to deprive any court of its jurisdiction to issue a pre-arbitral injunction, pre-arbitral attachment, or other order in aid of arbitration proceedings and the enforcement of any award. Without prejudice to such provisional remedies as may be available under the jurisdiction of a court, the arbitral tribunal shall have full authority to grant provisional remedies and to direct the parties to request that any court modify or vacate any temporary or preliminary relief issued by such court, and to award damages for the failure of any party to respect the arbitral tribunal’s orders to that effect. In any such action brought in court for such provisional remedies or enforcement of any award, each of the parties to the Dispute irrevocably and unconditionally (Ai) consents and submits toto the jurisdiction and venue of the Courts of the State of California and the Federal Courts of the United States of America located within the State of California (the “California Courts”); (ii) waives, to the fullest extent it may effectively do so, any objection, including any objection to the laying of venue or based on the grounds of forum non conveniens or any right of objection to jurisdiction on account of its place of incorporation or domicile, which it may now or hereafter have to the bringing of any such action or proceeding in any California Court; (iii) consents to service of process in the manner provided by Section 12.8 below or in any other manner permitted by law; and (iv) WAIVES ANY RIGHT TO TRIAL BY JURY.
(v) This arbitration, and all prior, subsequent or concurrent judicial proceedings related thereto and permitted herein, shall be conducted pursuant to the Federal Arbitration Act, found at Title 9 of the U.S. Code.
(vi) In order to facilitate the comprehensive resolution of related disputes, all claims between any of the parties to the Dispute that arise under or in connection with this Agreement and the Ancillary Agreements may be brought in a single arbitration. Upon the request of any party to an arbitration proceeding constituted under this Agreement or the Ancillary Agreement(s), the arbitral tribunal shall consolidate such arbitration proceeding with any other arbitration proceeding relating to this Agreement and/or the Ancillary Agreement(s), if the arbitral tribunal determines that (i) there are issues of fact or law common to the proceedings so that a consolidated proceeding would be more efficient than separate proceedings, and (ii) no party to the Dispute would be unduly prejudiced as a result of such consolidation through undue delay or otherwise. In the event of different rulings on this question by the arbitral tribunal constituted hereunder and another arbitral tribunal constituted under this Agreement or the Ancillary Agreement(s), the ruling of the arbitral tribunal constituted first in time shall control, and such arbitral tribunal shall serve as the tribunal for any consolidated arbitration.
(vii) In the event of a Dispute, each party to the Dispute shall continue to perform its obligations under this Agreement or any Ancillary Agreement in good faith during the resolution of such Dispute as if such Dispute had not arisen, unless and until this Agreement or such Ancillary Agreement is terminated in accordance with the provisions hereof.
(c) The Parties agree that the provisions of this Section 10.2 bind themselves and any of the members of their respective Groups, and further agree to take all measures to lawfully cause the members of their respective Groups to abide and be bound by the terms of this Section 10.2.
Appears in 1 contract
Samples: Separation and Distribution Agreement (CareTrust REIT, Inc.)
