Common use of Arbitration of Fair Market Rent Clause in Contracts

Arbitration of Fair Market Rent. If Tenant disputes the amount claimed by Landlord as Base Rent pursuant to Paragraph 9(d) or Paragraph 10, and such dispute cannot be resolved by mutual agreement, the dispute shall be submitted to arbitration. The judgment or the award rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between the parties. The arbitration shall be conducted and determined in the County of Alameda in accordance with the then prevailing rules of the American Arbitration Association or its successor for arbitration of commercial disputes except to the extent that the procedures mandated by said rules shall be modified as follows: (a) Tenant shall make demand for arbitration in writing within the time period required under Paragraph 9(d) or Paragraph 10, as applicable, above, specifying therein the name and address of the person to act as the arbitrator on its behalf. The arbitrator shall be qualified as a real estate appraiser familiar with the Fair Market Rent of commercial office space in the County of Alameda who would qualify as an expert witness over objection to give testimony addressed to the issue in a court of competent jurisdiction. Failure on the part of Tenant to make a timely and proper demand for such arbitration shall constitute a waiver of the right thereto. Within ten (10) business days after the service of Tenant’s demand for arbitration, Landlord shall have the right to give notice in writing to Tenant of Landlord’s adjusted determination of Fair Market Rent. Within ten (10) business days following Tenant’s receipt of such notice, if Tenant and Landlord have not agreed upon Fair Market Rent, Tenant shall notify Landlord in writing that Tenant desires to renew its demand for arbitration. Failure on the part of Tenant to give such notice shall constitute a waiver of the right to such arbitration, and Tenant shall be deemed to have accepted Landlord’s adjusted determination of Fair Market Rent. Within ten (10) business days after the receipt of such notice, Landlord shall give notice to Tenant, specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualified. If Landlord fails to notify Tenant of the appointment of its arbitrator, within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. (b) If two (2) arbitrators are chosen pursuant to Paragraph 12(a) above, the arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed and, if within ten (10) business days after such first meeting the two (2) arbitrators shall be unable to agree promptly upon a determination of Fair Market Rent, they shall appoint a third (3rd) arbitrator, who shall be a competent and impartial person with qualifications similar to those required of the first two (2) arbitrators pursuant to Paragraph 12(a) above. If they are unable to agree upon such appointment within five (5) business days after expiration of said ten (10) day period, the third (3rd) arbitrator shall be selected by the parties themselves, if they can agree thereon, within a further period of ten (10) business days. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by the then Chief Judge of the United States District Court having jurisdiction over the County of Alameda, acting in his private non-judicial capacity. Request for appointment shall be made in writing with a copy given to the other party. Each party agrees that said Judge shall have the power to make the appointment. The three (3) arbitrators shall decide the dispute, if it has not previously been resolved, by following the procedure set forth in 12(c) below. (c) Where the issue cannot be resolved by agreement between the two (2) arbitrators selected by Landlord and Tenant or settlement between the parties during the course of arbitration, the issue shall be resolved by the three (3) arbitrators in accordance with the following procedure. The arbitrators selected by each of the parties shall state in writing his determination of the Fair Market Rent, supported by the reasons therefor with counterpart copies to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third (3rd) arbitrator shall be to select which of the two (2) proposed resolutions most closely approximates his determination of Fair Market Rent. The third (3rd) arbitrator shall have no right to propose a middle ground or any modification of either of the two (2) proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute the decision of the arbitrators and be final and binding upon the parties. (d) If any arbitrator fails, refuses or is unable to act, his successor shall be appointed by him, but in the case of the third (3rd) arbitrator, his successor shall be appointed in the same manner as provided for appointment of the third (3rd) arbitrator. The arbitrators shall attempt to decide the issue within ten (10) business days after the appointment of the third (3rd) arbitrator. Any decision in which the arbitrator appointed by Landlord and the arbitrator appointed by Tenant concur shall be binding and conclusive upon the parties. Each party shall pay the fees and costs of its own counsel. The losing party shall pay the fees and costs of the arbitrators and of the expert witnesses (if any) of the prevailing party as well as those of its expert witnesses. For purposes hereof, the losing party shall be that party whose selected arbitrator’s statement of Fair Market Rent was not selected by the third (3rd) arbitrator. (e) The arbitrators shall have the right to consult experts and competent authorities with factual information or evidence pertaining to a determination of Fair Market Rent, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The arbitrators shall render their decision and award in writing with counterpart copies to each party. The arbitrators shall have no power to modify the provisions of the Lease.

Arbitration of Fair Market Rent. If Tenant disputes the amount claimed by Landlord as Base Fair Market Rent, the parties shall attempt to agree on Fair Market Rent pursuant to Paragraph 9(dwithin thirty (30) or Paragraph 10days thereafter, and in accordance with Section 13.9. If such ------------ dispute cannot be resolved by mutual agreement, the dispute shall may be submitted to arbitration. The judgment or the award rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between the parties. The arbitration shall be conducted and determined in the County City of Alameda Bellevue, Washington, in accordance accord with the then then-prevailing commercial arbitration rules of the American Arbitration Association or its successor for arbitration of commercial disputes except to the extent that the procedures mandated by said rules shall be modified as follows: (aA) Tenant shall make demand for arbitration in writing within the time period required under Paragraph 9(dthirty (30) or Paragraph 10, as applicable, above, specifying therein days after receipt of Landlord's determination of Fair Market Rent. Tenant's arbitration demand shall specify (a) the name and address of the person to act as the arbitrator on its behalf, and (b) Tenant's determination of Fair Market Rent. The arbitrator shall be qualified as a real estate appraiser familiar with the Fair Market Rent of at least five (5) years experience appraising first-class commercial office space in the County of Alameda Market Area who would qualify as an expert witness over objection to give testimony addressed to the issue in a court of competent jurisdiction. Failure on the part of Tenant to make a timely and proper demand for such arbitration shall constitute a waiver of the right theretoto arbitration. Within ten (10) business days Business Days after the service receipt of Tenant’s 's demand for arbitration, Landlord shall have the right to give notice in writing to Tenant of Landlord’s 's adjusted determination of Fair Market Rent. Within ten (10) business days Business Days following Tenant’s Xxxxxx's receipt of such notice, if Tenant and Landlord have not agreed upon Fair Market Rent, Tenant shall notify Landlord in writing that Tenant desires to renew its demand for arbitration. Failure on the part of Tenant to give such notice shall constitute a waiver of the right to such arbitration, and Tenant shall be deemed to have accepted Landlord’s adjusted 's determination of Fair Market Rent. Within ten (10) business days Business Days after the receipt of such noticea notice renewing the demand for arbitration, Landlord shall give notice to Tenant, specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualified. If Landlord fails to notify Tenant of the appointment of its arbitrator, within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. (bB) If two (2) arbitrators are chosen pursuant to Paragraph 12(a) abovethe preceding Section, the arbitrators so chosen shall meet within ten (10) business days Business Days after the second arbitrator is appointed and, if within ten (10) business days Business Days after such first meeting the two (2) arbitrators shall be unable to agree promptly have not agreed upon a determination of Fair Market Rent, they shall appoint a third (3rd) arbitrator, who shall be a competent and impartial person with qualifications similar to those required of the first two (2) arbitrators pursuant to Paragraph 12(a) abovearbitrators. If they are unable to agree upon such appointment within five (5) business days Business Days after expiration of said ten (10) day period, the third (3rd) arbitrator shall be selected by the parties themselves, themselves if they can agree thereon, within a further period of ten (10) business days. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by the then Chief Judge of the United States District Court having jurisdiction over the County of Alameda, acting in his private non-judicial capacity. Request for appointment shall be made in writing with a copy given to the other party. Each party agrees that said Judge shall have the power to make the appointment. The three (3) arbitrators shall decide the dispute, if it has not previously been resolved, by following the procedure set forth in 12(c) below. (c) Where the issue cannot be resolved by agreement between the two (2) arbitrators selected by Landlord and Tenant or settlement between the parties during the course of arbitration, the issue shall be resolved by the three (3) arbitrators in accordance with the following procedure. The arbitrators selected by each of the parties shall state in writing his determination of the Fair Market Rent, supported by the reasons therefor with counterpart copies to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third (3rd) arbitrator shall be to select which of the two (2) proposed resolutions most closely approximates his determination of Fair Market Rent. The third (3rd) arbitrator shall have no right to propose a middle ground or any modification of either of the two (2) proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute the decision of the arbitrators and be final and binding upon the parties. (d) If any arbitrator fails, refuses or is unable to act, his successor shall be appointed by him, but in the case of the third (3rd) arbitrator, his successor shall be appointed in the same manner as provided for appointment of the third (3rd) arbitrator. The arbitrators shall attempt to decide the issue within ten (10) business days after the appointment of the third (3rd) arbitrator. Any decision in which the arbitrator appointed by Landlord and the arbitrator appointed by Tenant concur shall be binding and conclusive upon the parties. Each party shall pay the fees and costs of its own counsel. The losing party shall pay the fees and costs of the arbitrators and of the expert witnesses (if any) of the prevailing party as well as those of its expert witnesses. For purposes hereof, the losing party shall be that party whose selected arbitrator’s statement of Fair Market Rent was not selected by the third (3rd) arbitrator. (e) The arbitrators shall have the right to consult experts and competent authorities with factual information or evidence pertaining to a determination of Fair Market Rent, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The arbitrators shall render their decision and award in writing with counterpart copies to each party. The arbitrators shall have no power to modify the provisions of the Lease.)

Arbitration of Fair Market Rent. If Tenant disputes the amount ------------------------------- claimed by Landlord as Base Rent pursuant to Paragraph 9(d) or Paragraph 10Fair Market Rent, and such dispute cannot be resolved by mutual agreement, the dispute shall be submitted to arbitration. The judgment or the award rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between the parties. The arbitration shall be conducted and determined in the County City of Alameda South San Francisco in accordance with the then then-prevailing commercial arbitration rules of the American Arbitration Association or its successor for arbitration of commercial disputes except to the extent that the procedures mandated by said rules shall be modified as follows: (a) Tenant shall make demand for arbitration in writing within the time period required thirty (30) days after service of Landlord's determination of Fair Market Rent given under Paragraph 9(d) or Paragraph 10, as applicable, aboveSection 3.03.(b), specifying therein the name and address of the person to act as the arbitrator on its behalf. The arbitrator shall be qualified as a real estate appraiser familiar with the Fair Market Rent of first-class commercial office space in the County of Alameda downtown San Francisco Financial District who would qualify as an expert witness over objection to give testimony addressed to the issue in a court of competent jurisdiction. Failure on the part of Tenant to make a timely and proper demand for such arbitration shall constitute a waiver of the right thereto. Within ten (10) business days after the service of Tenant’s 's demand for arbitration, Landlord shall have the right to give notice in writing to Tenant of Landlord’s 's adjusted determination of Fair Market Rent. Within ten (10) business days following Tenant’s 's receipt of such notice, if Tenant and Landlord have not agreed upon Fair Market Rent, Tenant shall notify Landlord in writing that Tenant desires to renew its demand for arbitration. Failure on the part of Tenant to give such notice shall constitute a waiver of the right to such arbitration, and Tenant shall be deemed to have accepted Landlord’s 's adjusted determination of Fair Market Rent. Within ten (10) business days after the receipt of such notice, Landlord shall give notice to Tenant, specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualified. If Landlord fails to notify Tenant of the appointment of its arbitrator, within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. (b) If two (2) arbitrators are chosen pursuant to Paragraph 12(aSection 7.09. (a) above, the arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed and, if within ten (10) business days after such first meeting the two (2) arbitrators shall be unable to agree promptly upon a determination of Fair Market Rent, they shall appoint a third (3rd) arbitrator, who shall be a competent and impartial person with qualifications similar to those required of the first two (2) arbitrators pursuant to Paragraph 12(a) aboveSection 7.09.(a). If they are unable to agree upon such appointment within five (5) business days after expiration of said ten (10) day period, the third (3rd) arbitrator shall be selected by the parties themselves, if they can agree thereon, within a further period of ten (10) business days. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by the then Chief Judge of the United States District Court having jurisdiction over the City and County of AlamedaSan Francisco, acting in his private non-judicial capacity. Request for appointment shall be made in writing with a copy given to the other party. Each party agrees that said Judge shall have the power to make the appointment, provided, however, if the Chief Judge does not make a determination within ten (10) days of request by either party for the appointment of a third arbitrator, appointment of such third arbitrator shall be made in accordance with the selection procedure of the commercial arbitration rules of the American Arbitration Association or its successor for arbitration of commercial disputes. The three (3) arbitrators shall decide the dispute, if it has not previously been resolved, by following the procedure set forth in 12(cSection 7.09.(c) below. (c) Where the issue cannot be resolved by agreement between the two (2) arbitrators selected by Landlord and Tenant or settlement between the parties during the course of arbitration, the issue shall be resolved by the three (3) arbitrators in accordance with the following procedure. The arbitrators selected by each of the parties shall state in writing his determination of the Fair Market Rent, supported by the reasons therefor with counterpart copies to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third (3rd) arbitrator shall be to select which of the two (2) proposed resolutions most closely approximates his determination of Fair Market Rent. The third (3rd) arbitrator shall have no right to propose a middle ground or any modification of either of the two (2) proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute the decision of the arbitrators and be final and binding upon the parties. (d) If any arbitrator fails, refuses or is unable to act, his successor shall be appointed by him, but in the case of the third (3rd) arbitrator, his successor shall be appointed in the same manner as provided for appointment of the third (3rd) arbitrator. The arbitrators shall attempt to decide the issue within ten (10) business days after the appointment of the third (3rd) arbitrator. Any decision in which the arbitrator appointed by Landlord and the arbitrator appointed by Tenant concur shall be binding and conclusive upon the parties. Each party shall pay the fees and costs of its own counsel. The losing party shall pay the fees and costs of the arbitrators and of the expert witnesses (if any) of the prevailing party as well as those of its expert witnesses. For purposes hereof, the losing party shall be that party whose selected arbitrator’s 's statement of Fair Market Rent was not selected by the third (3rd) arbitrator. (e) The arbitrators shall have the right to consult experts and competent authorities with factual information or evidence pertaining to a determination of Fair Market Rent, but any such consultation shall be made in the presence of both parties with full right on their part to cross-cross- examine. The arbitrators shall render their decision and award in writing with counterpart copies to each party. The arbitrators shall have no power to modify the provisions of the this Lease.

Arbitration of Fair Market Rent. If Tenant disputes disagrees with Xxxxxxxx's determination of the amount claimed by Fair Market Rent for the Option Term, Landlord as Base and Tenant shall confer for a period of thirty (30) days in an attempt to agree on the Fair Market Rent. In the event Landlord and Tenant fail to reach an agreement on the Fair Market Rent pursuant to Paragraph 9(dwithin such thirty (30) or Paragraph 10day period, and such dispute cannot be resolved by mutual agreement, then the dispute Fair Market Rent for the applicable Option Term shall be submitted to arbitration. The judgment or the award rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between the parties. The arbitration shall be conducted and determined in the County of Alameda in accordance with the then prevailing rules following procedure (the "Arbitration Procedure"), which Arbitration Procedure shall be binding upon the parties: Within fifteen (15) days after the expiration of the American Arbitration Association or its successor for arbitration of commercial disputes except to the extent that the procedures mandated by said rules shall be modified as follows: thirty (a30) day period described above, Landlord and Tenant shall make demand for arbitration in writing within the time period required under Paragraph 9(d) or Paragraph 10, as applicable, above, specifying therein the name and address of the person to act as the arbitrator on its behalf. The arbitrator shall be qualified as each select a licensed real estate appraiser familiar broker with the Fair Market Rent of commercial office space in the County of Alameda who would qualify as an expert witness over objection to give testimony addressed to the issue in a court of competent jurisdiction. Failure on the part of Tenant to make a timely and proper demand for such arbitration shall constitute a waiver of the right thereto. Within at least ten (10) business days after years' experience negotiating life science transactions in the service of Tenant’s demand for arbitration, Landlord shall have the right to give notice in writing to Tenant of Landlord’s adjusted determination of Fair Market Rent. Within ten (10) business days following Tenant’s receipt of such notice, if Tenant and Landlord have not agreed upon Fair Market Rent, Tenant shall notify Landlord in writing that Tenant desires to renew its demand for arbitration. Failure on the part of Tenant to give such notice shall constitute a waiver of the right to such arbitration, and Tenant shall be deemed to have accepted Landlord’s adjusted determination of Fair Market Rent. Within ten (10) business days after the receipt of such notice, Landlord shall give notice to Tenant, specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualifiedLos Angeles market. If Landlord fails the two brokers are unable to notify Tenant of the appointment of its arbitrator, within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. (b) If two (2) arbitrators are chosen pursuant to Paragraph 12(a) above, the arbitrators so chosen shall meet agree within ten (10) business days after the second arbitrator is appointed and, if within ten (10) business days after such first meeting the two (2) arbitrators shall be unable to agree promptly upon a determination of Fair Market Renttheir selection, they shall appoint select a similarly qualified third broker (3rdthe "Neutral Broker"). Within twenty (20) arbitrator, who shall be a competent and impartial person with qualifications similar to those required days after selection of the first two (2) arbitrators pursuant to Paragraph 12(a) above. If they are unable to agree upon such appointment within five (5) business days after expiration of said ten (10) day periodNeutral Broker, the third (3rd) arbitrator three brokers shall be selected by the parties themselves, if they can agree thereon, within a further period of ten (10) business days. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by the then Chief Judge of the United States District Court having jurisdiction over the County of Alameda, acting in his private non-judicial capacity. Request for appointment shall be made in writing with a copy given to the other party. Each party agrees that said Judge shall have the power to make the appointment. The three (3) arbitrators shall decide the dispute, if it has not previously been resolved, by following the procedure set forth in 12(c) below. (c) Where the issue cannot be resolved by agreement between the two (2) arbitrators selected by Landlord and Tenant or settlement between the parties during the course of arbitration, the issue shall be resolved by the three (3) arbitrators in accordance with the following procedure. The arbitrators selected by each of the parties shall state in writing his determination simultaneously exchange determinations of the Fair Market Rent, supported by . If the reasons therefor with counterpart copies to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third (3rd) arbitrator shall be to select which of the two (2) proposed resolutions most closely approximates his lowest determination of Fair Market Rent is not less than ninety-seven and one-half percent (97.5%) of the highest determination, then the three determinations shall be averaged and the result shall be the Fair Market Rent. The third If the lowest determination is less than ninety-seven and one-half percent (3rd97.5%) arbitrator shall have no right to propose a middle ground or any modification of either of the two (2) proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute highest determination, then the decision of the arbitrators and be final and binding upon the parties. (d) If any arbitrator fails, refuses or is unable to act, his successor Fair Market Rent shall be deemed the rate set forth in the determination submitted by a broker appointed by him, but a party that is closest in dollar amount to the case of determination submitted by the third (3rd) arbitrator, his successor shall be appointed in the same manner as provided for appointment of the third (3rd) arbitrator. The arbitrators shall attempt to decide the issue within ten (10) business days after the appointment of the third (3rd) arbitrator. Any decision in which the arbitrator appointed by Landlord and the arbitrator appointed by Tenant concur shall be binding and conclusive upon the partiesNeutral Broker. Each party shall pay the fees and costs cost of its own counselbroker and the parties shall share the cost of the Neutral Broker equally. The losing party If the Monthly Base Rent for an Option Term has not been determined by the commencement date of the Option Term, then until such Monthly Base Rent is determined, Tenant shall pay Monthly Base Rent to Landlord at the fees and costs rate in effect immediately preceding the Option Term. If the actual Monthly Base Rent for the Option Term is determined to be higher, then within fifteen (15) days after the determination of such higher Monthly Base Rent, Tenant shall pay to Landlord the difference for each month of the arbitrators Option Term for which Monthly Base Rent has already become due. If the actual Monthly Base Rent for the Option Term is determined to be lower, then within fifteen (15) days after the determination of such lower Monthly Base Rent, Tenant shall receive a credit against Monthly Base Rent next due and owing in an amount equal to the difference between the actual Monthly Base Rent determined for the Option Term and the amount for which Tenant has already paid during the Option Term. Tenant shall continue to pay Landlord as set forth in the Lease for Direct Expenses during the applicable Option Term. If Tenant was obligated to pay any amortized amounts under the Lease prior to the commencement of the expert witnesses (if any) of applicable Option Term and there remains useful life with respect to the prevailing party as well as those of its expert witnesses. For purposes hereofapplicable capital improvement, the losing party then Tenant shall be that party whose selected arbitrator’s statement of Fair Market Rent was not selected by the third (3rd) arbitrator. (e) The arbitrators shall have the right to consult experts and competent authorities with factual information or evidence pertaining to a determination of Fair Market Rent, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The arbitrators shall render their decision and award in writing with counterpart copies to each party. The arbitrators shall have no power to modify the provisions of the Lease.remain

Arbitration of Fair Market Rent. If Tenant disputes the amount ------------------------------- claimed by Landlord as Base Rent pursuant to Paragraph 9(d) or Paragraph 10Fair Market Rent, and such dispute cannot be resolved by mutual agreement, the dispute shall be submitted to arbitration. The judgment or the award rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between the parties. The arbitration shall be conducted and determined in the County City of Alameda South San Francisco in accordance with the then then-prevailing commercial arbitration rules of the American Arbitration Association or its successor for arbitration of commercial disputes except to the extent that the procedures mandated by said rules shall be modified as follows: (a) Tenant shall make demand for arbitration in writing within the time period required thirty (30) days after service of Landlord's determination of Fair Market Rent given under Paragraph 9(d) or Paragraph 10, as applicable, aboveSection 3.03.(b), specifying therein the name and address of the person to act as the arbitrator on its behalf. The arbitrator shall be qualified as a real estate appraiser familiar with the Fair Market Rent of first-class commercial office space in the County of Alameda downtown San Francisco Financial District who would qualify as an expert witness over objection to give testimony addressed to the issue in a court of competent jurisdiction. Failure on the part of Tenant to make a timely and proper demand for such arbitration shall constitute a waiver of the right thereto. Within ten (10) business days after the service of Tenant’s 's demand for arbitration, Landlord shall have the right to give notice in writing to Tenant of Landlord’s 's adjusted determination of Fair Market Rent. Within ten (10) business days following Tenant’s 's receipt of such notice, if Tenant and Landlord have not agreed upon Fair Market Rent, Tenant shall notify Landlord in writing that Tenant desires to renew its demand for arbitration. Failure on the part of Tenant to give such notice shall constitute a waiver of the right to such arbitration, and Tenant shall be deemed to have accepted Landlord’s 's adjusted determination of Fair Market Rent. Within ten (10) business days after the receipt of such notice, Landlord shall give notice to Tenant, specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualified. If Landlord fails to notify Tenant of the appointment of its arbitrator, within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. (b) If two (2) arbitrators are chosen pursuant to Paragraph 12(aSection 7.09. (a) above, the arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed and, if within ten (10) business days after such first meeting the two (2) arbitrators shall be unable to agree promptly upon a determination of Fair Market Rent, they shall appoint a third (3rd) arbitrator, who shall be a competent and impartial person with qualifications similar to those required of the first two (2) arbitrators pursuant to Paragraph 12(a) aboveSection 7.09.(a). If they are unable to agree upon such appointment within five (5) business days after expiration of said ten (10) day period, the third (3rd) arbitrator shall be selected by the parties themselves, if they can agree thereon, within a further period of ten (10) business days. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by the then Chief Judge of the United States District Court having jurisdiction over the City and County of AlamedaSan Francisco, acting in his private non-judicial capacity. Request for appointment shall be made in writing with a copy given to the other party. Each party agrees that said Judge shall have the power to make the appointment, provided, however, if the Chief Judge does not make a determination within ten (10) days of request by either party for the appointment of a third arbitrator, appointment of such third arbitrator shall be made in accordance with the selection procedure of the commercial arbitration rules of the American Arbitration Association or its successor for arbitration of commercial disputes. The three (3) arbitrators shall decide the dispute, if it has not previously been resolved, by following the procedure set forth in 12(cSection 7.09.(c) below. (c) Where the issue cannot be resolved by agreement between the two (2) arbitrators selected by Landlord and Tenant or settlement between the parties during the course of arbitration, the issue shall be resolved by the three (3) arbitrators in accordance with the following procedure. The arbitrators selected by each of the parties shall state in writing his determination of the Fair Market Rent, supported by the reasons therefor with counterpart copies to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third (3rd) arbitrator shall be to select which of the two (2) proposed resolutions most closely approximates his determination of Fair Market Rent. The third (3rd) arbitrator shall have no right to propose a middle ground or any modification of either of the two (2) proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute the decision of the arbitrators and be final and binding upon the parties. (d) If any arbitrator fails, refuses or is unable to act, his successor shall be appointed by him, but in the case of the third (3rd) arbitrator, his successor shall be appointed in the same manner as provided for appointment of the third (3rd) arbitrator. The arbitrators shall attempt to decide the issue within ten (10) business days after the appointment of the third (3rd) arbitrator. Any decision in which the arbitrator appointed by Landlord and the arbitrator appointed by Tenant concur shall be binding and conclusive upon the parties. Each party shall pay the fees and costs of its own counsel. The losing party shall pay the fees and costs of the arbitrators and of the expert witnesses (if any) of the prevailing party as well as those of its expert witnesses. For purposes hereof, the losing party shall be that party whose selected arbitrator’s 's statement of Fair Market Rent was not selected by the third (3rd) arbitrator. (e) The arbitrators shall have the right to consult experts and competent authorities with factual information or evidence pertaining to a determination of Fair Market Rent, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The arbitrators shall render their decision and award in writing with counterpart copies to each party. The arbitrators shall have no power to modify the provisions of the this Lease.

Arbitration of Fair Market Rent. If Tenant disputes the amount claimed by Landlord as Base Fair Market Rent, the parties shall attempt to agree on Fair Market Rent pursuant to Paragraph 9(dwithin thirty (30) or Paragraph 10, and days thereafter. If such dispute cannot be resolved by mutual agreement, the dispute shall may, at Xxxxxx's request, be submitted to arbitration. The judgment or the award rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between the parties. The arbitration shall be conducted and determined in the County City of Alameda Bellevue, Washington, in accordance accord with the then then-prevailing commercial arbitration rules of the American Arbitration Association or its successor for arbitration of commercial disputes except to the extent that the procedures mandated by said rules shall be modified as follows: (aA) Tenant shall make demand for arbitration in writing within the time period required under Paragraph 9(dthirty (30) or Paragraph 10, as applicable, above, specifying therein days after receipt of Landlord's determination of Fair Market Rent. Tenant's arbitration demand shall specify (a) the name and address of the person to act as the arbitrator on its behalf, and (b) Tenant's determination of Fair Market Rent. The arbitrator shall be qualified as a real estate appraiser familiar with the Fair Market Rent of at least five (5) years experience appraising first-class commercial office space in the County of Alameda Market Area who would qualify as an expert witness over objection to give testimony addressed to the issue in a court of competent jurisdiction. Failure on the part of Tenant to make a timely and proper demand for such arbitration shall constitute a waiver of the right theretoto arbitration. Within ten (10) business days after the service receipt of Tenant’s 's demand for arbitration, Landlord shall have the right to give notice in writing to Tenant of Landlord’s 's adjusted determination of Fair Market Rent. Within ten (10) business days following Tenant’s Xxxxxx's receipt of such notice, if Tenant and Landlord have not agreed upon Fair Market Rent, Tenant shall notify Landlord in writing that Tenant desires to renew its demand for arbitration. Failure on the part of Tenant to give such notice shall constitute a waiver of the right to such arbitration, and Tenant shall be deemed to have accepted Landlord’s adjusted 's determination of Fair Market Rent. Within ten (10) business days after the receipt of such noticea notice renewing the demand for arbitration, Landlord shall give notice to Tenant, specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualified. If Landlord fails to notify Tenant of the appointment of its arbitrator, within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. (bB) If two (2) arbitrators are chosen pursuant to Paragraph 12(a) abovethe preceding Section, the arbitrators so chosen shall meet within ten (10) business days after the second arbitrator is appointed and, if within ten (10) business days after such first meeting the two (2) arbitrators shall be unable to agree promptly have not agreed upon a determination of Fair Market Rent, they shall appoint a third (3rd) arbitrator, who shall be a competent and impartial person with qualifications similar to those required of the first two (2) arbitrators pursuant to Paragraph 12(a) abovearbitrators. If they are unable to agree upon such appointment within five (5) business days after expiration of said ten (10) day period, the third (3rd) arbitrator shall be selected by the parties themselves, themselves if they can agree thereon, within a further period of ten (10) business days. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by the then Chief Judge a court of the United States District Court having jurisdiction over the State of Washington sitting in King County of Alameda, acting in his private non-judicial capacitypursuant to RCW 7.04.050. Request for appointment shall be made in writing with a copy given to the other party. Each party agrees that said Judge court shall have the power to make the appointment; provided, however, if -------- ------- the court does not make a determination within ten (10) days of request by either party for the appointment of a third arbitrator, appointment of such third arbitrator shall be made in accordance with the selection procedure of the commercial arbitration rules of the American Arbitration Association or its successor for arbitration of commercial disputes. The three (3) arbitrators shall decide the dispute, if it has not previously been resolved, by following the procedure set forth in 12(c) below. (cC) Where the issue cannot be resolved by agreement between the two (2) arbitrators selected by Landlord and Tenant or settlement between the parties during the course of arbitration, the issue shall be resolved by the three (3) arbitrators in accordance with the following procedure. The arbitrators arbitrator selected by each of the parties shall state in writing his or her determination of the Fair Market Rent, supported by the reasons therefor with counterpart copies therefor, and shall deliver a copy to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third (3rd) arbitrator shall be to select which of the two (2) proposed resolutions most closely approximates his or her determination of Fair Market Rent. The third (3rd) arbitrator shall have no right to propose a middle ground or any modification of either of the two (2) proposed resolutions. The resolution he or she chooses as most closely approximating his or her determination of Fair Market Rent shall constitute the decision of the arbitrators and shall be final and binding upon the parties. (dD) If any arbitrator fails, refuses or is unable to act, his or her successor shall be appointed by him, but in the case of the third (3rd) arbitrator, his or her successor shall be appointed in the same manner as provided for appointment of the third (3rd) arbitrator. The arbitrators shall attempt to decide the issue within ten (10) business days after the appointment of the third (3rd) arbitrator. Any decision in which the arbitrator appointed by Landlord and the arbitrator appointed by Tenant Xxxxxx concur shall be binding and conclusive upon the parties. Each party shall pay the fees and costs of its own counsel. The losing party shall pay the fees and costs of the arbitrators and of the expert witnesses (if any) of the prevailing party as well as those of its expert witnesses. For purposes hereof, the losing party shall be that party whose selected arbitrator’s 's statement of Fair Market Rent was not selected by the third arbitrator. In the event a third arbitrator is not required, each party shall pay the fees and costs of its own appointed arbitrator and expert witnesses (3rd) arbitratorif any). (eE) The arbitrators shall have the right to consult experts and competent authorities with factual information or evidence pertaining to a determination of Fair Market Rent, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The arbitrators shall render their decision and award in writing with counterpart and shall deliver copies to each party. The arbitrators shall have no power to modify the provisions of the this Lease.