OR OWNER.
IT IS THE INTENTION OF THE PARTIES THAT THE ARBITRATORS RULE ONLY ON
THE SUBSTANTIVE POSITIONS SUBMITTED TO THEM BY THE PARTIES AND THE ARBITRATORS
ARE NOT AUTHORIZED TO RENDER RULINGS WHICH ARE A COMPROMISE AS TO ANY SUCH
SUBSTANTIVE POSITION.
A DECISION IN WHICH ANY TWO (2) ARBITRATORS SO APPOINTED
AND ACTING HEREUNDER CONCUR IN WRITING WITH RESPECT TO EACH DISPUTED ITEM SHALL
IN ALL CASES BE BINDING AND CONCLUSIVE UPON OWNER AND MANAGER AND A COPY OF SAID
DECISION SHALL BE FORWARDED TO THE PARTIES.
THE PARTIES WILL REQUEST THAT THE
ARBITRATORS ASSESS THE COSTS AND EXPENSES OF THE ARBITRATION AND THEIR FEES
AGAINST THE PARTIES BASED ON A FINDING AS TO WHICH PARTIES' SUBSTANTIVE
POSITIONS WERE NOT UPHELD.
OTHERWISE THE FEES AND EXPENSES OF THE ARBITRATION
WILL BE TREATED AS AN OPERATING COST UNLESS OTHERWISE DETERMINED BY THE
ARBITRATORS.
(B)
IF THE PARTY RECEIVING A REQUEST FOR
ARBITRATION FAILS TO APPOINT ITS ARBITRATOR WITHIN THE TIME ABOVE SPECIFIED, OR
IF THE TWO ARBITRATORS SO SELECTED CANNOT AGREE ON THE SELECTION OF THE THIRD
ARBITRATOR WITHIN THE TIME ABOVE SPECIFIED, THEN EITHER PARTY, ON BEHALF OF BOTH
PARTIES, MAY REQUEST SUCH APPOINTMENT OF SUCH SECOND OR THIRD ARBITRATOR, AS THE
CASE MAY BE, BY APPLICATION TO ANY JUDGE OF ANY COURT IN NEW YORK COUNTY, NEW
YORK OF COMPETENT JURISDICTION UPON TEN (10) DAYS' PRIOR WRITTEN NOTICE TO THE
OTHER PARTY OF SUCH INTENT.
(C)
IF THERE SHALL BE A DISPUTE WITH RESPECT TO
WHETHER A PARTY HAS UNREASONABLY WITHHELD, CONDITIONED OR DELAYED ITS CONSENT
WITH RESPECT TO A MATTER FOR WHICH SUCH PARTY HAS AGREED HEREIN NOT TO
UNREASONABLY WITHHOLD ITS CONSENT, SUCH DISPUTE SHALL BE RESOLVED BY
ARBITRATION.
(D)
ANY DISPUTES UNDER SECTIONS 2.1 OR 7.6 SHALL
BE RESOLVED BY ARBITRATION; PROVIDED, HOWEVER, NOTWITHSTANDING THE FOREGOING,
OWNER SHALL BE ENTITLED TO SEEK AND OBTAIN INJUNCTIVE AND OTHER EQUITABLE RELIEF
IF IT BELIEVES THERE HAS BEEN A BREACH OF MANAGER'S OBLIGATION UNDER EITHER OF
SAID SECTIONS.
24.21
ESTOPPEL CERTIFICATES.
EACH PARTY TO THIS AGREEMENT
SHALL AT ANY TIME AND FROM TIME TO TIME, UPON NOT LESS THAN FIFTEEN (15) DAYS'
PRIOR NOTICE FROM THE OTHER PARTY, EXECUTE, ACKNOWLEDGE AND DELIVER TO SUCH
OTHER PARTY, OR TO ANY THIRD PARTY SPECIFIED BY SUCH OTHER PARTY, A STATEMENT IN
WRITING:
(A) CERTIFYING THAT THIS AGREEMENT IS UNMODIFIED AND IN FULL FORCE AND
EFFECT (OR IF THERE HAVE BEEN MODIFICATIONS,
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THAT THE SAME, AS MODIFIED, IS IN FULL FORCE AND EFFECT AND STATING THE
MODIFICATIONS); (B) STATING WHETHER OR NOT TO THE BEST KNOWLEDGE OF THE
CERTIFYING PARTY (I) THERE IS A CONTINUING DEFAULT BY THE NON-CERTIFYING PARTY
IN THE PERFORMANCE OR OBSERVANCE OF ANY COVENANT, AGREEMENT OR CONDITION
CONTAINED IN THIS AGREEMENT, OR (II) THERE SHALL HAVE OCCURRED ANY EVENT WHICH,
WITH THE GIVING OF NOTICE OR PASSAGE OF TIME OR BOTH, WOULD BECOME SUCH A
DEFAULT, AND, IF SO, SPECIFYING EACH SUCH DEFAULT OR OCCURRENCE OF WHICH THE
CERTIFYING PARTY MAY HAVE KNOWLEDGE; (C)