Common use of Expert Decisions Clause in Contracts

Expert Decisions. Where this Agreement calls for a matter or dispute to be referred to an Expert for determination, the following provisions shall apply, to the exclusion of any other dispute resolution mechanism (whether or not the specific reference to Expert resolution mentions such exclusion): 16.11.1 The “Expert” shall be an independent, nationally recognized senior housing consulting firm or individual who is qualified to resolve the issue in question, and who is appointed in each instance by agreement of the parties or, failing agreement, each party shall select one (1) such nationally recognized consulting firm or individual and the two (2) respective firms and/or individuals so selected shall select another such nationally recognized consulting firm or individual to be the Expert. Each party agrees that it shall not appoint an individual as an Expert hereunder if the individual is, as of the date of appointment or within four (4) years prior to such date, employed by such party or any of its Affiliates, either directly or as a consultant, in connection with any other matter (other than as an expert or arbitrator in connection with any dispute to which such party is involved, including as an Expert hereunder). In the event that either party calls for an Expert determination pursuant to the terms hereof, the parties shall have ten (10) days from the date of such request to agree upon Portions of this exhibit that have been marked by [***] have been omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission. an Expert and, if they fail to agree, each party shall have an additional ten (10) days to make its respective selection of a firm or individual, and within ten (10) days of such respective selections, the two (2) respective firms and/or individuals so selected shall select another such nationally recognized consulting firm or individual to be the Expert. If either party fails to make its respective selection of a firm or individual within the ten (10) day period provided for above, then the other party’s selection shall be the Expert. Also, if the two (2) respective firms and/or individuals so selected shall fail to select a third nationally recognized consulting firm or individual to be the Expert, then such Expert shall be appointed by the United States District Court for the District of Delaware or, in the case of claims over which the federal courts do not have jurisdiction, the Delaware Chancery Court (or, if the Delaware Chancery Court shall be unavailable, any other court of the State of Delaware) and shall be a qualified person having at least ten (10) years recent professional experience as to the subject matter in question; 16.11.2 Unless specifically stated to the contrary, the use of the Expert shall be the exclusive remedy of the parties and neither party shall attempt to adjudicate any dispute in any other forum. The decision of the Expert shall be final and binding on the parties and shall not be capable of challenge, whether by arbitration, in court, or otherwise; 16.11.3 Each party shall be entitled to make written submissions to the Expert, and if a party makes any submission it shall also provide a copy to the other party and the other party shall have the right to comment on such submission. The parties shall make available to the Expert all books and records relating to the issue in dispute and shall render to the Expert any assistance requested of the parties. The costs of the Expert and the proceedings shall be paid by the non-prevailing party in the dispute referred to the Expert; 16.11.4 The Expert shall make its decision with respect to the matter referred for determination by applying, to the extent applicable to such matter, the standards applicable to senior housing communities in accordance with Tenant’s Standards and determining whether the matter at issue is necessary to satisfy such standards; and 16.11.5 The terms of engagement of the Expert shall include an obligation on the part of the Expert to (i) notify the parties in writing of his decision within forty-five (45) days from the date on which the Expert has been selected (or such other period as the parties may agree or as set forth herein); (ii) establish a timetable for the making of submissions and replies and (iii) keep confidential in accordance with Section 16.17 any information which is disclosed to it in connection with the resolution of the dispute and which is required to be kept confidential under Section 16.17.

Expert Decisions. Where this Agreement calls for a matter or dispute is to be referred to an Expert for determination, the following provisions shall apply, apply to such Expert’s determination: A. Resolution of the matter or dispute referred to the exclusion Expert for resolution (the “Expert Resolution Process”) shall be the sole and exclusive remedy available to the parties with respect to such matter or dispute. Absent manifest error, the decision of the Expert shall be final and binding on the parties and shall not be capable of challenge, whether by arbitration, in court or otherwise. The failure of either party to adhere to the decision of the Expert shall constitute a Default hereunder. B. The parties will observe in all respects, the terms and provisions of this Section 11.21 and any attempt to circumvent the terms shall be null and void. Upon the occurrence of a matter to be referred to the Expert (an “Expert Resolution Dispute”), either party may notify the other that a matter or dispute resolution mechanism exists and in the event that the parties have been unable to resolve such matter or dispute within thirty (whether or not 30) days, either party may give notice (“Expert Notice”) to the specific reference other party of submission of such dispute to the Expert resolution mentions such exclusion):Resolution Process set forth herein. 16.11.1 The C. For purposes of this Section 11.21, the term “Expert” shall be mean an individual employed by an independent, nationally recognized senior housing hotel consulting firm or individual who is qualified to resolve the issue in question, and who is having at least ten (10) years experience in the subject matters in question. The Expert shall be appointed in each instance by agreement of the parties or, failing agreement, each party shall select one (1) such nationally recognized consulting firm or individual and the two (2) respective firms and/or individuals so selected shall select another such nationally recognized consulting firm or qualified individual to be the Expert. Each party agrees that it shall not appoint an individual as an Expert hereunder if the individual is, as of the date of appointment or within four three (43) years prior to such date, employed by such party or any of its Affiliatesparty, either directly or as a consultant, in connection with any other matter (other than as an expert or arbitrator in connection with any dispute to which such party is involved, including as an Expert hereunder). In the event that either party calls for an Expert determination pursuant to the terms hereof, the parties shall have ten (10) days from the date of such request to agree upon Portions of this exhibit that have been marked by [***] have been omitted pursuant to a request for confidential treatment filed separately with the Securities and Exchange Commission. an Expert and, if they fail to agree, each party shall have an additional ten (10) days to make its respective selection of a firm or individual, and within ten (10) days of such respective selections, the two (2) respective firms and/or individuals so selected shall select another such nationally recognized consulting firm or individual to be the Expert. If either party fails to make its respective selection of a firm or individual within the ten (10) day period provided for above, then the other party’s selection shall be the Expert. Also, if the two (2) respective firms and/or individuals so selected shall fail to select a third nationally recognized consulting firm or individual to be the Expert, then such Expert shall be appointed by the United States District Court for the District of Delaware or, in the case of claims over which the federal courts do not have jurisdiction, the Delaware Chancery Court (or, if the Delaware Chancery Court shall be unavailable, any other court of the State of Delaware) and shall be a qualified person having at least ten (10) years recent professional experience as to the subject matter in question; 16.11.2 Unless specifically stated to the contrary, the use of the Expert shall be the exclusive remedy of the parties and neither party shall attempt to adjudicate any dispute in any other forum. The decision of the Expert shall be final and binding on the parties and shall not be capable of challenge, whether by arbitration, in court, or otherwise; 16.11.3 Each party shall be entitled to make written submissions to the Expert, and if a party makes any submission it shall also provide a copy to the other party and the other party shall have the right to comment on such submission. The parties shall make available to the Expert all books and records relating to the issue in dispute and shall render to the Expert any assistance requested of the parties. The costs of the Expert and the proceedings shall be paid by the non-prevailing party in the dispute referred to the Expert; 16.11.4 The Expert shall make its decision with respect to the matter referred for determination by applying, to the extent applicable to such matter, the standards applicable to senior housing communities in accordance with Tenant’s Standards and determining whether the matter at issue is necessary to satisfy such standards; and 16.11.5 The terms of engagement of the Expert shall include an obligation on the part of the Expert to (i) notify the parties in writing of his decision within forty-five (45) days from the date on which the Expert has been selected (or such other period as the parties may agree or as set forth herein); (ii) establish a timetable for the making of submissions and replies and (iii) keep confidential in accordance with Section 16.17 any information which is disclosed to it in connection with the resolution of the dispute and which is required to be kept confidential under Section 16.17.