Common use of Non-Waiver; Disputes Clause in Contracts

Non-Waiver; Disputes. (a) Landlord's failure to render any Statement on a timely basis with respect to any Comparison Year shall not prejudice Landlord's right to thereafter render a Statement with respect to such Comparison Year or any subsequent Comparison Year, nor shall the rendering of a Statement prejudice Landlord's right to thereafter render a corrected Statement for that Comparison Year. (b) Each Statement sent to Tenant shall be conclusively binding upon Tenant unless Tenant shall (i) within 30 days after such Statement is sent, pay to Landlord the amount set forth in such Statement, without prejudice to Tenant's right to dispute such Statement, and (ii) within 60 days after such Statement is sent, send a written notice to Landlord objecting to such Statement and specifying the reasons that such Statement is claimed to be incorrect. If the parties are unable to resolve any dispute as to the correctness of such Statement within 30 days following such notice of objection, either party may refer the issues raised to an independent firm of certified public accountants which is a so-called "big-six" public accounting firm selected by Landlord and reasonably acceptable to Tenant, and the decision of such accountants shall be conclusively binding upon Landlord and Tenant. In connection therewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any of the information obtained in connection with such review. The fees and expenses relating to such procedure shall be borne by the unsuccessful party (and if both parties are partially unsuccessful, the accountants shall apportion the fees and expenses between the parties based on the degree of success of each party).

Non-Waiver; Disputes. (a) Landlord's ’s failure to render any Statement on a timely basis with respect to any Comparison Year shall not prejudice Landlord's ’s right to thereafter render a Statement with respect to such Comparison Year or any subsequent Comparison Year, nor shall the rendering of a Statement prejudice Landlord's ’s right to thereafter render a corrected Statement for that Comparison Year. (b) Each Statement sent to Tenant shall be conclusively binding upon Tenant unless Tenant shall within thirty (i30) within 30 days after such Statement is sent, pay to Landlord the amount set forth in such Statement, without prejudice to Tenant's ’s right to dispute such Statement, and within one hundred twenty (ii120) within 60 days after such Statement is sent, send a written notice to Landlord objecting to such Statement and specifying the reasons that such Statement is claimed to be incorrect. Tenant agrees that Tenant will not employ, in connection with any dispute under this Lease, any person who is to be compensated in whole or in part, on a contingency fee basis. If the parties are unable to resolve any dispute as to the correctness of such Statement within 30 thirty (30) days following such notice of objection, either party may refer the issues raised to an independent firm of certified public accountants which is a so-called "big-six" reputable public accounting firm selected by Landlord that is independent of Tenant and Landlord and reasonably acceptable to Tenant, and the decision of such accountants shall be conclusively binding upon Landlord and Tenant. In connection therewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any of the information obtained in connection with such review. The Tenant shall pay all the fees and expenses relating to such procedure unless such accountants determine that Landlord overstated Operating Expenses by more than five percent (5%) for such Lease Year, in which case Landlord shall be borne by the unsuccessful party (and if both parties are partially unsuccessful, the accountants shall apportion the pay such fees and expenses between expenses. If, in connection with the parties based on foregoing procedure, it is determined that Tenant’s Tax Payment and/or Tenant’s Operating Payment actually paid by Tenant for the degree period under review exceeded the actual amount of success Tenant’s Proportionate Share of each party)Taxes and/or Operating Expenses (as applicable) for such period, then, so long as no Event of Default then exists, Landlord shall credit against Tenant’s next accruing Rent obligations an amount equal to such excess.

Non-Waiver; Disputes. (a) Landlord's ’s failure to render any Statement on a timely basis with respect to any Comparison Year shall not prejudice Landlord's ’s right to thereafter render a Statement with respect to such Comparison Year or any subsequent Comparison Year, nor shall the rendering of a Statement prejudice Landlord's ’s right to thereafter render a corrected Statement for that Comparison Year. (b) Each Statement sent to Tenant shall be conclusively binding upon Tenant unless Tenant shall within thirty (i30) within 30 days after such Statement is sent, pay to Landlord the amount set forth in such Statement, without prejudice to Tenant's ’s right to dispute such Statement, and within one hundred twenty (ii120) within 60 days after such Statement is sent, send a written notice to Landlord objecting to such Statement and specifying the reasons that such Statement is claimed to be incorrect. Tenant agrees that Tenant will not employ, in connection with any dispute under this Lease, any person who is to be compensated in whole or in part, on a contingency fee basis. If the parties are unable to resolve any dispute as to the correctness of such Statement within 30 thirty (30) days following such notice of objection, either party may refer the issues raised to an independent firm of certified public accountants which is a so-called "big-six" reputable public accounting firm selected by Landlord that is independent of Tenant and Landlord and reasonably acceptable to Tenant, and the decision of such accountants shall be conclusively binding upon Landlord and Tenant. In connection therewithTherewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any of the information obtained in connection with such review. The Tenant shall pay all the fees and expenses relating to such procedure unless such accountants determine that Landlord overstated Operating Expenses by more than five percent (5%) for such Lease Year, in which case Landlord shall be borne by the unsuccessful party (and if both parties are partially unsuccessful, the accountants shall apportion the pay such fees and expenses between expenses. If, in connection with the parties based on foregoing procedure, it is determined that Tenant’s Tax Payment and/or Tenant’s Operating Payment actually paid by Tenant for the degree period under review exceeded the actual amount of success Tenant’s Proportionate Share of each party)Taxes and/or Operating Expenses (as applicable) for such period, then, so long as no Event of Default then exists, Landlord shall credit against Tenant’s next accruing Rent obligations an amount equal to such excess.

Non-Waiver; Disputes. (a) Landlord's ’s failure to render any Statement on a timely basis with respect to any Comparison Year shall not prejudice Landlord's ’s right to thereafter render a Statement with respect to such Comparison Year or any subsequent Comparison Year, nor shall the rendering of a Statement prejudice Landlord's ’s right to thereafter render a corrected Statement for that Comparison Year. (b) Each Statement sent to Tenant shall be conclusively binding upon Tenant unless Tenant shall (i) within 30 days after such Statement is sent, pay pays to Landlord when due the amount set forth in such Statement, without prejudice to Tenant's ’s right to dispute such Statement, and (ii) within 60 120 days after such Statement is sent, send sends a written notice to Landlord objecting to such Statement and specifying the reasons that therefor, in which case Tenant and its accountants shall have the right to review Landlord’s books and records applicable to such Statement. With respect to each Statement, Landlord will maintain its applicable books and records for a period of at least three (3) years after such Statement is claimed delivered to Tenant and thereafter during the pendency of any review thereof by Tenant pursuant to the terms of this Lease. Tenant agrees that Tenant will not employ, in connection with any dispute under this Amended and Restated Lease, any person or entity who is to be incorrectcompensated, in whole or in part, on a contingency fee basis. If the parties are unable to resolve any dispute as to the correctness of such Statement within 30 days following such notice of objection, either party may refer the issues raised to an independent firm one of certified public accountants which is a so-called "big-six" the nationally recognized public accounting firm firms selected by Landlord and reasonably acceptable to Tenant, and the decision of such accountants shall be conclusively binding upon Landlord and Tenant. In connection therewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any of the information obtained in connection with such review. The Tenant shall pay the fees and expenses relating to such procedure procedure, unless such accountants determine that Landlord overstated Operating Expenses by more than 3% for such Comparison Year, in which case Landlord shall be borne pay such fees and expenses. Except as provided in this Section 7.4, Tenant shall have no right whatsoever to dispute, by the unsuccessful party (and if both parties are partially unsuccessfuljudicial proceeding or otherwise, the accountants accuracy of any Statement. (c) In addition, if the accounting firm selected by Landlord and Tenant as set forth above concludes that Landlord has overstated any item or items of Operating Expenses and/or Taxes for such year in excess of three percent (3%), Tenant may, within one hundred-eighty (180) days following receipt of such firm’s written report, review Landlord’s books and records for the two (2) prior years whether or not theretofore reviewed, solely to determine whether any such item or items have also been overstated in any of such two (2) prior years. All such review activities shall apportion also be subject to the fees and expenses between the parties based on the degree of success of each party)confidentiality agreement described above.

Non-Waiver; Disputes. (a) Landlord's failure to render any Statement on a timely basis with respect to any Comparison Year within 3 years of the end thereof shall not prejudice Landlord's right to thereafter render a Statement with respect to such Comparison Year prior to the expiration of such 3 year period or any subsequent Comparison Year, nor shall the rendering of a Statement prejudice Landlord's right to thereafter render a corrected Statement for that Comparison YearYear within 3 years of the end thereof. (b) Each Statement sent to Tenant shall be conclusively binding upon Tenant unless Tenant shall (i) within 30 days after such Statement is sent, pay pays to Landlord when due the amount set forth in such Statement, without prejudice to Tenant's right to dispute such Statement, and (ii) within 60 90 days after such Statement is sent, send sends a written notice to Landlord objecting to such Statement and specifying the reasons therefor. Tenant agrees that such Statement Tenant will not employ, in connection with any dispute under this Lease, any person who is claimed to be incorrectcompensated in whole or in part, on a contingency fee basis. If the parties are unable to resolve any dispute as to the correctness of such Statement within 30 days following such notice of objection, either party may refer the issues raised to an independent firm one of certified public accountants which is a so-called the "big-sixBig Five" public accounting firm firms selected by Landlord and reasonably acceptable to Tenant, and the decision of such accountants shall be conclusively binding upon Landlord and Tenant. In connection therewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any of the information obtained in connection with such review. The Tenant shall pay the fees and expenses relating to such procedure procedure, unless such accountants determine that Landlord overstated Operating Expenses by more than 5% for such Comparison Year, in which case Landlord shall be borne by the unsuccessful party (and if both parties are partially unsuccessful, the accountants shall apportion the pay such fees and expenses between the parties based on the degree of success of each party)expenses.

Non-Waiver; Disputes. (a) Landlord's failure to render any Statement on a timely basis with respect to any Comparison Year shall not prejudice Landlord's right to thereafter render a Statement with respect to such Comparison Year or any subsequent Comparison Year, nor shall the rendering of a Statement prejudice Landlord's right to thereafter render a corrected Statement for that Comparison Year. (b) Each Statement sent to Tenant shall be conclusively binding upon Tenant unless Tenant shall (i) within 30 days after such Statement is sent, pay pays to Landlord when due the amount set forth in such Statement, without prejudice to Tenant's right to dispute such Statement, and (ii) within 60 180 days after such Statement is sent, send sends a written notice to Landlord objecting to such Statement and specifying the reasons therefor. Tenant agrees that such Statement Tenant will not employ, in connection with any dispute under this Lease, any person or entity who is claimed to be incorrectcompensated in whole or in part, on a contingency fee basis. If the parties are unable to resolve any dispute as to the correctness of such Statement within 30 days following such notice of objection, either party may refer the issues raised to an a reputable independent firm of certified public accountants which is a so-called "big-six" public accounting firm selected by Landlord (and not a firm engaged or seeking engagement as Landlord's accountants) and reasonably acceptable to Tenant, and the decision of such accountants shall be conclusively binding upon Landlord and Tenant. In connection therewith, Tenant and Tenant, such accountants and all other persons to whom Tenant gives any of the information obtained in connection with such review shall execute and deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any of the information obtained in connection with such review. The Tenant shall pay the fees and expenses relating to such procedure procedure, unless such accountants determine that Landlord overstated Operating Expenses by more than 5% for such Comparison Year, in which case Landlord shall be borne pay such fees and expenses. Except as provided in this Section 7.4, Tenant shall have no right whatsoever to dispute, by the unsuccessful party (and if both parties are partially unsuccessfuljudicial proceeding or otherwise, the accountants shall apportion the fees and expenses between the parties based on the degree accuracy of success of each party)any Statement.

Non-Waiver; Disputes. (a) Landlord's failure to render any Statement on a timely basis with respect to any Comparison Year shall not prejudice Landlord's right to thereafter render a Statement with respect to such Comparison Year or any subsequent Comparison Year, nor shall the rendering of a Statement prejudice Landlord's right to thereafter render a corrected Statement for that Comparison Year. (b) Each Statement sent to Tenant shall be conclusively binding upon Tenant unless Tenant shall (i) within 30 days after such Statement is sent, pay to Landlord the amount set forth in such Statement, without prejudice to Tenant's right to dispute such Statement, and (ii) within 60 90 days after such Statement is sent, send a written notice to Landlord objecting to such Statement and specifying the reasons that such Statement is claimed to be incorrect. If the parties are unable to resolve any dispute as to the correctness of such Statement within 30 days following such notice of objection, either party may refer the issues raised to an independent firm of certified public accountants which is a so-called "big-six" public accounting firm selected by Landlord and reasonably acceptable to Tenant, and the decision of such accountants shall be conclusively binding upon Landlord and Tenant. In connection therewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any of the information obtained in connection with such review. The fees and expenses relating to such procedure shall be borne by the unsuccessful party (and if both parties are partially unsuccessful, the accountants shall apportion the fees and expenses between the parties based on the degree of success of each party).

Non-Waiver; Disputes. (a) Landlord's failure to render any Statement on a timely basis with respect to any Comparison Year shall not prejudice Landlord's right to thereafter render a Statement with respect to such Comparison Year or any subsequent Comparison Year, nor shall the rendering of a Statement prejudice Landlord's right to thereafter render a corrected Statement for that Comparison Year. (b) . Each Statement sent to Tenant shall be conclusively binding upon Tenant unless Tenant shall (i) within 30 days after such Statement is sent, pay pays to Landlord when due the amount set forth in such Statement, without prejudice to Tenant's right to dispute such Statement, and (ii) within 60 90 days after such Statement is sent, send sends a written notice to Landlord objecting to such Statement and specifying the reasons therefor. Tenant agrees that such Statement Tenant will not employ, in connection with any dispute under this Lease, any person who is claimed to be incorrectcompensated in whole or in part, on a contingency fee basis. If the parties are unable to resolve any dispute as to the correctness of such Statement within 30 days following such notice of objection, either party may refer the issues raised to an independent firm one of certified public accountants which is a so-called the "big-sixBig Five" public accounting firm firms selected by Landlord and reasonably acceptable to Tenant, and the decision of such accountants shall be conclusively binding upon Landlord and Tenant. In connection therewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any of the information obtained in connection with such review. The Tenant shall pay the fees and expenses relating to such procedure procedure, unless such accountants determine that Landlord overstated Operating Expenses by more than 5% for such Comparison Year, in which case Landlord shall be borne by the unsuccessful party (and if both parties are partially unsuccessful, the accountants shall apportion the pay such fees and expenses between the parties based on the degree of success of each party)expenses.

Non-Waiver; Disputes. (a) Landlord's failure to render any Statement on a timely basis with respect to any Comparison Year shall not prejudice Landlord's right to thereafter render a Statement with respect to such Comparison Year or any subsequent Comparison Year, nor shall the rendering of a Statement prejudice Landlord's right to thereafter render a corrected Statement for that Comparison Year. (b) Each Statement sent to Tenant shall be conclusively binding upon Tenant unless Tenant shall (i) within 30 days after such Statement is sent, pay pays to Landlord when due the amount set forth in such Statement, without prejudice to Tenant's right to dispute such Statement, and (ii) within 60 90 days after such Statement is sent, send sends a written notice to Landlord objecting to such Statement and specifying the reasons therefor. Tenant agrees that such Statement Tenant will not employ, in connection with any dispute under this Lease, any person who is claimed to be incorrectcompensated in whole or in part, on a contingency fee basis. If the parties are unable to resolve any dispute as to the correctness of such Statement within 30 days following such notice of objection, either party may refer the issues raised to an independent firm one of certified public accountants which is a so-called the "big-sixBig Five" public accounting firm firms selected by Landlord and reasonably acceptable to Tenant, and the decision of such accountants shall be conclusively binding upon Landlord and Tenant. In connection therewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any of the information obtained in connection with such review. The Tenant shall pay the fees and expenses relating to such procedure procedure, unless such accountants determine that Landlord overstated Operating Expenses by more than 5% for such Comparison Year, in which case Landlord shall be borne by the unsuccessful party (and if both parties are partially unsuccessful, the accountants shall apportion the pay such fees and expenses between the parties based on the degree of success of each party)expenses.

Non-Waiver; Disputes. (a) Landlord's ’s failure to render any Statement on a timely basis with respect to any Comparison Year shall not prejudice Landlord's ’s right to thereafter render a Statement with respect to such Comparison Year or any subsequent Comparison Year, nor shall the rendering of a Statement prejudice Landlord's ’s right to thereafter render a corrected Statement for that Comparison Year. (b) Each Statement sent to Tenant shall be conclusively binding upon Tenant unless Tenant shall (i) within 30 days after such Statement is sent, pay pays to Landlord when due the amount set forth in such Statement, without prejudice to Tenant's ’s right to dispute such Statement, and (ii) within 60 days after such Statement is sent, send sends a written notice to Landlord objecting to such Statement and specifying the reasons therefor. Tenant agrees that such Statement Tenant will not employ, in connection with any dispute under this Lease, any person or entity who is claimed to be incorrectcompensated, in whole or in part, on a contingency fee basis. If the parties are unable to resolve any dispute as to the correctness of such Statement within 30 days following such notice of objection, either party may refer the issues raised to an independent firm one of certified public accountants which is a so-called "big-six" the nationally recognized public accounting firm firms selected by Landlord and reasonably acceptable to Tenant, and the decision of such accountants shall be conclusively binding upon Landlord and Tenant. In connection therewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any of the information obtained in connection with such review. The Tenant shall pay the fees and expenses relating to such procedure procedure, unless such accountants determine that Landlord overstated Operating Expenses by more than 5% for such Comparison Year, in which case Landlord shall be borne pay such fees and expenses. Except as provided in this Section 7.4, Tenant shall have no right whatsoever to dispute, by the unsuccessful party (and if both parties are partially unsuccessfuljudicial proceeding or otherwise, the accountants shall apportion the fees and expenses between the parties based on the degree accuracy of success of each party)any Statement.

Non-Waiver; Disputes. (a) Landlord's ’s failure to render any Statement on a timely basis with respect to any Comparison Lease Year shall not prejudice Landlord's ’s right to thereafter render a Statement with respect to such Comparison Lease Year or any subsequent Comparison Lease Year, nor shall the rendering of a Statement prejudice Landlord's ’s right to thereafter render a corrected Statement for that Comparison Lease Year, except that if Landlord fails to render a Statement to Tenant within one (1) year following the expiration of the calendar year in which the Term of this Lease expires, Landlord shall be deemed to have waived its right to recover any Additional Operating Expenses from Tenant. (b) Each Statement sent to Tenant shall be conclusively binding upon Tenant unless Tenant shall (i) within 30 days after such Statement is sent, pay pays to Landlord when due the amount set forth in such Statement, without prejudice to Tenant's ’s right to dispute such Statement, and (ii) within 60 90 days after such Statement is sent, send sends a written notice to Landlord objecting to such Statement and specifying the reasons that therefor. In the event of any such Statement is claimed to be incorrect. If notice by Tenant, the parties are unable shall cooperate with each other and use good faith efforts to resolve any dispute as dispute. Without limitation, Landlord shall endeavor to answer any specific questions of Tenant relating to the correctness of such Statement within 30 days following such notice of objection, either party may refer the issues raised to an independent firm of certified public accountants which is a so-called "big-six" public accounting firm selected by Landlord and reasonably acceptable to Tenant, and the decision of such accountants shall be conclusively binding upon Landlord and TenantStatement. In connection therewithaddition, Tenant and such accountants upon Tenant’s request, Landlord shall execute and deliver to Landlord Tenant a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any copy of the information obtained auditor’s statement on which Landlord’s annual statement is based, if such a statement shall have been prepared and delivered to Landlord by Landlord’s auditor. Tenant agrees that Tenant will not employ, in connection with such reviewany dispute regarding any Statement, any person or entity who is to be compensated, in whole or in part, on a contingency fee basis. The fees and expenses relating Except as provided in this Section 7.4, Tenant shall have no right whatsoever to such procedure shall be borne dispute, by the unsuccessful party (and if both parties are partially unsuccessfuljudicial proceeding or otherwise, the accountants shall apportion the fees and expenses between the parties based on the degree accuracy of success of each party)any Statement.

Non-Waiver; Disputes. (a) Landlord's ’s failure to render any Statement on a timely basis with respect to any Comparison Calendar Year shall not prejudice Landlord's ’s right to thereafter render a Statement with respect to such Comparison Calendar Year or any subsequent Comparison Calendar Year, nor shall the rendering of a Statement prejudice Landlord's ’s right to thereafter render a corrected Statement for that Comparison Calendar Year. (b) Each Statement sent to Tenant shall be conclusively binding upon Tenant unless Tenant shall (i) within 30 days after such Statement is sent, pay pays to Landlord when due the amount set forth in such Statement, without prejudice to Tenant's ’s right to dispute such Statement, and (ii) within 60 90 days after such Statement is sent, send sends a written notice to Landlord objecting to such Statement and specifying the reasons therefor. Tenant agrees that such Statement Tenant will not employ, in connection with any dispute under this Lease, any person who is claimed to be incorrectcompensated in whole or in part, on a contingency fee basis. If the parties are unable to resolve any dispute as to the correctness of such Statement within 30 days following such notice of objection, either party may refer the issues raised to an independent firm one of certified public accountants which is a so-called "big-six" the nationally recognized public accounting firm mutually selected by Landlord and reasonably acceptable to Tenant, and the decision of such accountants firm shall be conclusively binding upon Landlord and Tenant. In connection therewith, Tenant and such accountants shall execute and deliver to Landlord a confidentiality agreement, in form and substance reasonably satisfactory to Landlord, whereby such parties agree not to disclose to any third party any of the information obtained in connection with such review. The Tenant shall pay the fees and expenses relating to such procedure procedure, unless such accountants determine that Landlord overstated Operating Expenses by more than 5% for such Calendar Year, in which case Landlord shall be borne by the unsuccessful party (and if both parties are partially unsuccessful, the accountants shall apportion the pay such fees and expenses between the parties based on the degree of success of each party)expenses.