PROTEST SUCH
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AMOUNT AND SHALL PAY THE AMOUNT THAT LANDLORD CLAIMS IS DUE TO THE EXTENT NOT
THERETOFORE PAID.
IF THE DETERMINATION OF ARBITER SHALL SUBSTANTIALLY CONFIRM
THE DETERMINATION OF LANDLORD, THEN TENANT SHALL PAY THE COST OF THE ARBITER.
IF THE ARBITER SHALL SUBSTANTIALLY CONFIRM THE DETERMINATION OF TENANT, THEN
LANDLORD SHALL PAY THE COST OF THE ARBITER.
IN ALL OTHER EVENTS, THE COST OF
THE ARBITER SHALL BE BORNE EQUALLY BY LANDLORD AND TENANT.
THE ARBITER SHALL BE
A MEMBER OF AN INDEPENDENT CERTIFIED PUBLIC ACCOUNTING FIRM HAVING AT LEAST
THREE (3) ACCOUNTING PROFESSIONALS AND HAVING AT LEAST FIVE (5) YEARS OF
EXPERIENCE IN COMMERCIAL REAL ESTATE ACCOUNTING.
IN THE EVENT THAT LANDLORD AND
TENANT SHALL BE UNABLE TO AGREE UPON THE DESIGNATION OF THE ARBITER WITHIN
THIRTY (30) DAYS AFTER RECEIPT OF NOTICE FROM THE OTHER PARTY REQUESTING
AGREEMENT AS TO THE DESIGNATION OF THE ARBITER, WHICH NOTICE SHALL CONTAIN THE
NAMES AND ADDRESSES OF TWO OR MORE CERTIFIED PUBLIC ACCOUNTANTS WHO ARE
ACCEPTABLE TO THE PARTY SENDING SUCH NOTICE (ANY ONE OF WHOM, IF ACCEPTABLE TO
THE PARTY RECEIVING SUCH NOTICE AS SHALL BE EVIDENCED BY NOTICE GIVEN BY THE
RECEIVING PARTY TO THE OTHER PARTY WITHIN SUCH THIRTY (30) DAY PERIOD, SHALL BE
THE AGREED UPON ARBITER), THEN EITHER PARTY SHALL HAVE THE RIGHT TO REQUEST THE
AMERICAN ARBITRATION ASSOCIATION (THE "AAA") (OR ANY ORGANIZATION WHICH IS THE
SUCCESSOR THERETO) TO DESIGNATE AS THE ARBITER A CERTIFIED PUBLIC ACCOUNTANT
WHOSE DETERMINATION MADE IN ACCORDANCE WITH THIS SECTION 3.03(E)(II) SHALL BE
CONCLUSIVE AND BINDING UPON THE PARTIES, AND THE COST CHARGED BY THE AAA (OR ANY
ORGANIZATION WHICH IS THE SUCCESSOR THERETO), FOR DESIGNATING SUCH ARBITER,
SHALL BE SHARED EQUALLY BY LANDLORD AND TENANT.
LANDLORD AND TENANT HEREBY
AGREE THAT ANY DETERMINATION MADE BY AN ARBITER DESIGNATED PURSUANT TO THIS
SECTION 3.03(E)(II) SHALL NOT EXCEED THE AMOUNT(S) AS DETERMINED TO BE DUE IN
THE FIRST INSTANCE BY LANDLORD'S STATEMENT, NOR SHALL SUCH DETERMINATION BE LESS
THAN THE AMOUNT(S) CLAIMED TO BE DUE BY TENANT IN TENANT'S STATEMENT, AND THAT
ANY DETERMINATION WHICH DOES NOT COMPLY WITH THE FOREGOING SHALL BE NULL AND
VOID AND NOT BINDING ON THE PARTIES.
IN RENDERING SUCH DETERMINATION SUCH
ARBITER SHALL NOT ADD TO, SUBTRACT FROM OR OTHERWISE MODIFY THE PROVISIONS OF
THIS LEASE, INCLUDING THE IMMEDIATELY PRECEDING SENTENCE.
NOTWITHSTANDING THE
FOREGOING PROVISIONS OF THIS SECTION, TENANT, PENDING THE RESOLUTION OF ANY
CONTEST PURSUANT TO THE TERMS HEREOF, SHALL CONTINUE TO PAY ALL SUMS AS
DETERMINED TO BE DUE IN THE FIRST INSTANCE BY SUCH LANDLORD'S STATEMENT AND UPON
THE RESOLUTION OF SUCH CONTEST, SUITABLE ADJUSTMENT SHALL BE MADE IN ACCORDANCE
THEREWITH WITH APPROPRIATE REFUND TO BE MADE BY LANDLORD TO TENANT (OR CREDIT
ALLOWED TENANT AGAINST FIXED RENT AND ADDITIONAL CHARGES BECOMING DUE) IF
REQUIRED THEREBY.
(THE TERM "SUBSTANTIALLY", AS USED IN THE THIRD AND FIFTH
SENTENCES OF THIS 3.03(E)(II), SHALL MEAN A VARIANCE OF MORE THAN FOUR PERCENT
(4%) AND, AS USED IN THE FOURTH SENTENCE OF