Determination Procedure. The Fair Market Rental Rate for each Renewal Term shall be determined pursuant to the provisions of this Article 34, and Landlord and Tenant shall have no further right to appraisal, shall be bound by any determination made pursuant to this Article 34 and shall be obligated to pay and accept the rate as determined hereby. Landlord shall make its determination of the Fair Market Rental Rate for the applicable Renewal Term by using its good faith judgment. Landlord shall provide written notice of such amount to Tenant within thirty (30) days after the later of (i) Landlord's receipt of Tenant's Renewal Notice or (ii) fifteen (15) months before the applicable Renewal Term Commencement Date. (i) Tenant shall have fifteen (15) business days ("Tenant’s Review Period") after receipt of Landlord’s notice of the Fair Market Rental Rate within which to accept such rental or to object thereto in writing. In the event Tenant accepts Landlord's determination of the Fair Market Rental Rate in writing, Landlord and Tenant shall execute an amendment setting forth the terms and conditions of Tenant's lease of the Leased Premises during the Renewal Term. In the event Tenant fails to accept or rejects Landlord’s determination of the Fair Market Rental Rate in writing prior to the expiration of Tenant's Review Period, Tenant shall be deemed to have objected to Landlord's determination. In the event that Tenant objects or is deemed to have objected to Landlord's determination of the Fair Market Rental Rate, Landlord and Tenant shall attempt to agree upon such Fair Market Rental Rate using their good faith efforts. If Landlord and Tenant fail to reach agreement within forty-five (45) days following the expiration of Tenant’s Review Period (the "Outside Agreement Date"), then each party shall place in a separate sealed envelope their final proposal as to Fair Market Rental Rate and such determination shall be submitted to arbitration in accordance with subsections (iii) and (iv) below. (ii) In the event that Landlord fails to timely generate the initial written notice of Landlord’s determination of the Fair Market Rental Rate within thirty (30) days after the later of (A) Landlord's receipt of Tenant's Renewal Notice or (B) fifteen (15) months prior to the applicable Renewal Term Commencement Date, Tenant may commence such negotiations by providing the initial notice, in which event Landlord shall have fifteen (15) days ("Landlord's Review Period") after receipt of Tenant’s notice of Tenant's determination of the Fair Market Rental Rate within which to accept such rental. In the event Landlord fails to accept in writing such rental proposed by Tenant within such fifteen (15) day period, then such proposal shall be deemed rejected, and Landlord and Tenant shall attempt in good faith to agree upon such Fair Market Rental Rate using their good faith efforts. If Landlord and Tenant fail to reach agreement within fifteen (15) days following Landlord’s Review Period (which shall be, in such event, the "Outside Agreement Date" in lieu of the above definition of such date), then each party shall place in a separate sealed envelope their final proposal as to the Fair Market Rental Rate and such determination shall be submitted to arbitration in accordance with subsections (iii) and (iv) below. (iii) Landlord and Tenant shall meet with each other within five (5) business days of the Outside Agreement Date and exchange their respective determinations of the Fair Market Rental Rate in sealed envelopes and then open such envelopes in each other’s presence (each determination respectively, "Landlord's Determination" and "Tenant's Determination", and together, the "Determinations"). If Landlord and Tenant do not mutually agree upon the Fair Market Rental Rate within one (1) business day of the exchange and opening of envelopes, then, the Fair Market Rental Rate shall be determined as follows, each party being bound by its determination and Landlord's Determination and Tenant's Determination establishing the only two choices available to the Appraisal Panel (as hereinafter defined). (iv) Within ten (10) days after the parties exchange the Determinations, the parties shall each appoint an arbitrator who shall be (A) a licensed Illinois real estate broker with at least ten (10) years' experience in leasing commercial office space in buildings similar to the Building in the Pertinent Market immediately prior to his or her appointment and (B) familiar with the rentals then being charged in the Building and in the comparable buildings. Landlord and Tenant may each appoint the real estate brokers who assisted in shaping Landlord's Determination and Tenant's Determination, respectively, as their respective arbitrators. If either Landlord or Tenant fails to appoint an arbitrator within the ten (10) day period, the Fair Market Rental Rate for the Renewal Term shall be deemed to be the Determination of the party who properly selected an arbitrator. Within twenty (20) days following their appointment, the two arbitrators so selected shall appoint a third, similarly qualified, independent arbitrator who has not had any prior business relationship with either party (the "Independent Arbitrator"). If an Independent Arbitrator has not been so selected by the end of such twenty (20) day period, then either party, on behalf of both, may request such appointment by the local office of the Chicago Association of Realtors or the American Arbitration Association (or any successor thereto). Within five (5) days after the appointment of the Independent Arbitrator, Landlord and Tenant shall submit copies of Landlord’s Determination and Tenant’s Determination to the three arbitrators (the "Appraisal Panel"). The Appraisal Panel shall conduct a hearing, at which Landlord and Tenant may each make supplemental oral and/or written presentation, with an opportunity for rebuttal by the other party and for questioning by the members of the Appraisal Panel, if they so wish. Within fifteen (15) days following the hearing, the Appraisal Panel, by majority vote, shall select either Landlord’s Determination or Tenant’s Determination of Fair Market Rental Rate for the Renewal Term, shall have no right to propose a middle ground or to modify either of the two proposals or the provisions of the Lease, and the Appraisal Panel shall render such decision to Landlord and Tenant within such fifteen (15) day period. The decision of the Appraisal Panel shall be final and binding upon the parties, and may be enforced in accordance with the provisions of the law of the State of Illinois. In the event of the failure, refusal or inability of any member of the Appraisal Panel to act, a successor shall be appointed in the manner that applied to the selection of the member being replaced. The party whose determination was not selected by the Appraisal Panel shall pay all of the fees and expenses of the arbitrators designated by each party, the fees and expenses of the Independent Arbitrator, and the costs and expenses incident to the proceedings (excluding attorneys’ fees and similar expenses of the parties which shall be borne separately by each of the parties).
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Determination Procedure. The Fair Market Rental Rate Within ninety (90) days after the end of the Earn-Out Period, Buyer shall deliver to Seller a written statement (the “Earn-Out Statement”) setting forth in reasonable detail its calculation of Net Revenue for each Renewal Term the Earn-Out Period and the resulting Earn-Out Payment, together with supporting documentation reasonably sufficient to verify such calculation. Seller shall be determined pursuant have thirty (30) days after receipt of the Earn-Out Statement (the “Review Period”) to review the Earn-Out Statement. During the Review Period Buyer shall provide Seller and its representatives reasonable access, during normal business hours and upon reasonable notice, to the books and records relevant to the computation of Net Revenue solely for purposes of verifying the Earn-Out Statement. If Seller disagrees with any item reflected in the Earn-Out Statement, Seller shall, on or before the expiration of the Review Period, deliver to Buyer a written notice in accordance with the notice provisions of this Article 34, Agreement (an “Objection Notice”) setting forth each disputed item and Landlord and Tenant shall have no further right to appraisal, the basis for Seller’s disagreement. Any items not disputed in an Objection Notice shall be bound by any determination made pursuant deemed accepted. Buyer and Seller shall use good-faith efforts to this Article 34 and shall be obligated to pay and accept the rate as determined hereby. Landlord shall make its determination of the Fair Market Rental Rate for the applicable Renewal Term by using its good faith judgment. Landlord shall provide written notice of such amount to Tenant resolve all disputed items within thirty (30) days after the later of (i) Landlord's B▇▇▇▇’s receipt of Tenant's Renewal Notice or (ii) fifteen (15) months before the applicable Renewal Term Commencement Date.
(i) Tenant shall have fifteen (15) business days ("Tenant’s Review Period") after receipt of Landlord’s notice of the Fair Market Rental Rate within which to accept such rental or to object thereto in writingObjection Notice. In the event Tenant accepts Landlord's determination of the Fair Market Rental Rate in writing, Landlord and Tenant shall execute an amendment setting forth the terms and conditions of Tenant's lease of the Leased Premises during the Renewal Term. In the event Tenant fails to accept or rejects Landlord’s determination of the Fair Market Rental Rate in writing prior to the expiration of Tenant's Review Period, Tenant shall be deemed to have objected to Landlord's determination. In the event that Tenant objects or is deemed to have objected to Landlord's determination of the Fair Market Rental Rate, Landlord and Tenant shall attempt to agree upon such Fair Market Rental Rate using their good faith efforts. If Landlord and Tenant fail to reach agreement within forty-five (45) days following the expiration of Tenant’s Review Period (the "Outside Agreement Date"), then each party shall place in a separate sealed envelope their final proposal as to Fair Market Rental Rate and such determination Any disputed items not so resolved shall be submitted to arbitration in accordance with subsections (iii) and (iv) below.
(ii) In the event that Landlord fails to timely generate the initial written notice of Landlord’s determination of the Fair Market Rental Rate within thirty (30) days after the later of (A) Landlord's receipt of Tenant's Renewal Notice or (B) fifteen (15) months prior to the applicable Renewal Term Commencement DateAccounting Firm for final, Tenant may commence such negotiations by providing the initial notice, in which event Landlord shall have fifteen (15) days ("Landlord's Review Period") after receipt of Tenant’s notice of Tenant's determination of the Fair Market Rental Rate within which to accept such rental. In the event Landlord fails to accept in writing such rental proposed by Tenant within such fifteen (15) day period, then such proposal shall be deemed rejected, and Landlord and Tenant shall attempt in good faith to agree upon such Fair Market Rental Rate using their good faith efforts. If Landlord and Tenant fail to reach agreement within fifteen (15) days following Landlord’s Review Period (which shall be, in such event, the "Outside Agreement Date" in lieu of the above definition of such date), then each party shall place in a separate sealed envelope their final proposal as to the Fair Market Rental Rate and such determination shall be submitted to arbitration in accordance with subsections (iii) and (iv) below.
(iii) Landlord and Tenant shall meet with each other within five (5) business days of the Outside Agreement Date and exchange their respective determinations of the Fair Market Rental Rate in sealed envelopes and then open such envelopes in each other’s presence (each determination respectively, "Landlord's Determination" and "Tenant's Determination", and together, the "Determinations"). If Landlord and Tenant do not mutually agree upon the Fair Market Rental Rate within one (1) business day of the exchange and opening of envelopes, then, the Fair Market Rental Rate shall be determined as follows, each party being bound by its determination and Landlord's Determination and Tenant's Determination establishing the only two choices available to the Appraisal Panel (as hereinafter defined).
(iv) Within ten (10) days after the parties exchange the Determinations, the parties shall each appoint an arbitrator who shall be (A) a licensed Illinois real estate broker with at least ten (10) years' experience in leasing commercial office space in buildings similar to the Building in the Pertinent Market immediately prior to his or her appointment and (B) familiar with the rentals then being charged in the Building and in the comparable buildings. Landlord and Tenant may each appoint the real estate brokers who assisted in shaping Landlord's Determination and Tenant's Determination, respectively, as their respective arbitrators. If either Landlord or Tenant fails to appoint an arbitrator within the ten (10) day period, the Fair Market Rental Rate for the Renewal Term shall be deemed to be the Determination of the party who properly selected an arbitrator. Within twenty (20) days following their appointment, the two arbitrators so selected shall appoint a third, similarly qualified, independent arbitrator who has not had any prior business relationship with either party (the "Independent Arbitrator"). If an Independent Arbitrator has not been so selected by the end of such twenty (20) day period, then either party, on behalf of both, may request such appointment by the local office of the Chicago Association of Realtors or the American Arbitration Association (or any successor thereto). Within five (5) days after the appointment of the Independent Arbitrator, Landlord and Tenant shall submit copies of Landlord’s Determination and Tenant’s Determination to the three arbitrators (the "Appraisal Panel"). The Appraisal Panel shall conduct a hearing, at which Landlord and Tenant may each make supplemental oral and/or written presentation, with an opportunity for rebuttal by the other party and for questioning by the members of the Appraisal Panel, if they so wish. Within fifteen (15) days following the hearing, the Appraisal Panel, by majority vote, shall select either Landlord’s Determination or Tenant’s Determination of Fair Market Rental Rate for the Renewal Term, shall have no right to propose a middle ground or to modify either of the two proposals or the provisions of the Lease, and the Appraisal Panel shall render such decision to Landlord and Tenant within such fifteen (15) day period. The decision of the Appraisal Panel shall be final and binding upon the parties, and may be enforced resolution in accordance with the provisions principles and definitions set forth in the Agreement (and this Annex) with respect to the resolution of the law of the State of Illinois. In the event of the failure, refusal or inability of any member of the Appraisal Panel to act, a successor shall be appointed in the manner that applied to the selection of the member being replacedAdjustment Amount. The party whose determination was not selected by the Appraisal Panel shall pay all of the fees and expenses of the arbitrators designated by each party, Accounting Firm shall be allocated between Buyer and Seller in the fees and expenses proportion that the amount of the Independent Arbitrator, and the costs and expenses incident disputed items not awarded to each party bears to the proceedings (excluding attorneys’ fees and similar expenses total amount of disputed items submitted to the parties which shall be borne separately by each of the parties)Accounting Firm.
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