Common use of Determination of Fair Rental Value Clause in Contracts

Determination of Fair Rental Value. In the event Tenant timely and appropriately exercises an Extension Option, Landlord shall notify Tenant of Landlord’s determination of the Option Rent on or before the date that occurs six (6) months prior to the Lease Expiration Date (or expiration of the first Option Term, as applicable). If Tenant, on or before the date which is thirty (30) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement on or before the date that occurs four (4) months before the commencement of the applicable Option Term, of if Tenant exercises its right in Section 1.4.4.2 to have the Fair Rental Value of any Availability Premises determined by arbitration (as applicable, the “Outside Agreement Date”), then each party shall make a separate determination of the Option Rent, within five (5) business days following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3. 7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have accepted Landlord’s determination of Option Rent. 2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be, at the option of the appointing party, a real estate broker, appraiser or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the leasing or appraisal, as the case may be, of commercial office properties in the Financial District and South of Market areas of San Francisco, California. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent (or Fair Rental Value of the Availability Space, as applicable) is the closest to the actual Option Rent (or Fair Rental Value of the Availability Space, as applicable), taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.” 2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel. 2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent (or Fair Rental Value of the Availability Space, as applicable), and shall notify Landlord and Tenant thereof. 2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant. 2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Francisco County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator. 2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Francisco County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator. 2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally. 2.2.3.8 In the event that the Option Rent (or Fair Rental Value of the Availability Space, as applicable) shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term ( or the Availability Premises Rent Commencement Date for any Availability Space, as applicable), Tenant shall be required to pay the Option Rent (or Fair Rental Value of the Availability Space, as applicable) initially provided by Landlord to Tenant, and upon the final determination of the Option Rent (or Fair Rental Value of the Availability Space, as applicable), the payments made by Tenant shall be reconciled with the actual amounts of Option Rent (or Fair Rental Value of the Availability Space, as applicable) due, and the appropriate party shall make any corresponding payment to the other party.

Determination of Fair Rental Value. In the event that Tenant has timely and appropriately exercises an delivered the Extension OptionNotice, then within ten days after Tenant has given such notice to Landlord, Landlord and Tenant shall notify meet in an effort to negotiate, in good faith, the Fair Rental Value. If Landlord and Tenant of Landlord’s determination of have not agreed upon the Option Rent Fair Rental Value on or before the date that occurs six 30 days after Tenant has given to Landlord the Extension Notice, the Fair Rental Value shall be determined by the following method: (6i) months prior to the Lease Expiration Date (or expiration of the first Option Term, as applicable). If Tenant, on or before the date which is thirty (30) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt in good faith to agree upon a single appraiser not later than the Option Rent using their best good-faith effortsdate 40 days after Tenant has given to Landlord the Extension Notice. If Landlord and Tenant fail are unable to reach agreement on or before the date that occurs four (4) months before the commencement of the applicable Option Term, of if Tenant exercises its right in Section 1.4.4.2 to have the Fair Rental Value of any Availability Premises determined agree upon a single appraiser by arbitration (as applicable, the “Outside Agreement Date”)such date, then each party shall make a separate determination of the Option Rent, within five (5) business days following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3. 7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have accepted Landlord’s determination of Option Rent. 2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who appraiser, by written notice to the other party, not later than the date 45 days after Tenant has given to Landlord the Extension Notice. Such notice shall becontain the name, at the option address and telephone number of the appointing party, a real estate broker, appraiser so appointed. On or attorney who shall have been active over the five (5) year period ending on before the date of such appointment in the leasing or appraisal, as the case may be, of commercial office properties in the Financial District and South of Market areas of San Francisco, California. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent (or Fair Rental Value of the Availability Space, as applicable) is the closest to the actual Option Rent (or Fair Rental Value of the Availability Space, as applicable), taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) five days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.” 2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last second appraiser, the two appointed Advocate Arbitrator to agree upon and appraisers shall appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by appraiser as follows: Both Landlord’s counsel and Tenant’s counsel. 2.2.3.3 The three arbitrators shall, within thirty (30) days appraisers shall meet and exchange a list of up to ten appraisers that are qualified as specified in Section 3.3.5(c). Each of the appointment lists will be prioritized numerically. Provided an appraiser is named on both lists, the chosen appraiser shall be the appraiser with the lowest arithmetically combined ranking. If two appraisers have the same combined ranking, the appraiser shall be determined to be the appraiser with the most years of professional experience. For example, in the Neutral Arbitratorfollowing lists, reach a decision as to whether Able would be the parties shall use Landlord’s or Tenant’s submitted Option Rent first choice, followed by Xxxxx and Xxxxx (or Fair Rental Value who would be ranked by years of the Availability Space, as applicableprofessional experience), followed by Xxxxx and shall notify Landlord and Tenant thereofXxx: List A List B 1. Able 1. Zulu 2. Xxxxx (12 years’ experience) 2. X-ray 3. Charlie 3. Xxxxxx 4. Delta 4. 2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant. 2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Francisco County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator. 2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Francisco County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator. 2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally. 2.2.3.8 In the event that the Option Rent (or Fair Rental Value of the Availability Space, as applicable) shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term ( or the Availability Premises Rent Commencement Date for any Availability Space, as applicable), Tenant shall be required to pay the Option Rent (or Fair Rental Value of the Availability Space, as applicable) initially provided by Landlord to Tenant, and upon the final determination of the Option Rent (or Fair Rental Value of the Availability Space, as applicable), the payments made by Tenant shall be reconciled with the actual amounts of Option Rent (or Fair Rental Value of the Availability Space, as applicable) due, and the appropriate party shall make any corresponding payment to the other party.

Determination of Fair Rental Value. In the event Tenant timely and appropriately exercises an Extension Optionoption to extend the term of the Lease, Landlord shall notify Tenant of Landlord’s determination of the Option Rent on or before the date that occurs six (6) months prior to the Lease Expiration Date (or expiration commencement of the first Option Term, as applicable). If Tenant, on or before the date which is thirty (30) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement on or before within thirty (30) days following Tenant’s objection to the date that occurs four Option Rent (4) months before the commencement of the applicable Option Term, of if Tenant exercises its right in Section 1.4.4.2 to have the Fair Rental Value of any Availability Premises determined by arbitration (as applicable, the “Outside Agreement Date”), then each party shall make a separate determination of the Option Rent, Rent within five (5) business days following the Outside Agreement Datedays, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 3.2.3.1 through 2.2.3. 73.2.3.7, below. If Notwithstanding the terms set forth in Sections 3.2.3.1 through 3.2.3.7 below, in the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant fails to object to shall pay Landlord’s submitted Option Rent until a final determination is made pursuant to the arbitration. Following the arbitration, in the event Tenant’s submitted Option Rent is selected, then (i) Landlord shall make a retroactive adjustment to the Option Rent and credit against Tenant’s next rent due the difference between Landlord’s submitted Option Rent and the arbitrators’ final determination of the Option Rent within the time period set forth hereinRent, and (ii) if Landlord’s fails to credit such amount against Tenant’s next rent due, then Tenant shall be deemed thereafter have the right to have accepted Landlord’s determination of Option Rentdeduct such amount from its rent due under the Lease, as amended). 2.2.3.1 3.2.3.1 Landlord and Tenant shall each appoint one (1) arbitrator who shall be, at the option of the appointing party, be a real estate broker, appraiser or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the leasing or appraisal, as the case may be, of commercial office properties in the Financial District and South of Market areas of North San FranciscoDiego, California. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent (or Fair Rental Value of the Availability Space, as applicable) is the closest to the actual Option Rent (or Fair Rental Value of as determined by the Availability Space, as applicable)arbitrators, taking into account the requirements of Section 2.2.2 3.2.2 of this Lease, as determined by the arbitratorsFifth Amendment. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.” 2.2.3.2 3.2.3.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators(2) arbitrators, except that neither and the third arbitrator shall not have represented either Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with during the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counselfive (5) year period immediately preceding the Outside Agreement Date. 2.2.3.3 3.2.3.3 The three (3) arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent (or Fair Rental Value of the Availability Space, as applicable), and shall notify Landlord and Tenant thereof. 2.2.3.4 3.2.3.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant. 2.2.3.5 3.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant. 3.2.3.6 If the two (2) arbitrators fail to agree upon and appoint a third arbitrator within such ten (10)-day period aforesaid, or if both parties fail to appoint an arbitrator within such fifteen (15)-day period aforesaid, then either party may petition the presiding judge of the Superior Court of San Francisco County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator. 2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Francisco Diego County to appoint the Neutral Arbitratorthird arbitrator, subject to criteria in Section 2.2.3.2 3.2.3.1 of this LeaseFifth Amendment, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator. 2.2.3.7 3.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally. 2.2.3.8 In the event that the Option Rent (or Fair Rental Value of the Availability Space, as applicable) shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term ( or the Availability Premises Rent Commencement Date for any Availability Space, as applicable), Tenant shall be required to pay the Option Rent (or Fair Rental Value of the Availability Space, as applicable) initially provided by Landlord to Tenant, and upon the final determination of the Option Rent (or Fair Rental Value of the Availability Space, as applicable), the payments made by Tenant shall be reconciled with the actual amounts of Option Rent (or Fair Rental Value of the Availability Space, as applicable) due, and the appropriate party shall make any corresponding payment to the other party.

Determination of Fair Rental Value. In the event Tenant timely and appropriately exercises an Extension Optionoption to extend the term of the Lease, Landlord shall notify Tenant of Landlord’s determination of the Option Rent on or before the date that occurs six (6) months prior to the Lease Expiration Date (or expiration commencement of the first Option Term, as applicable). If Tenant, on or before the date which is thirty (30) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement on or before within thirty (30) days following Tenant’s objection to the date that occurs four Option Rent (4) months before the commencement of the applicable Option Term, of if Tenant exercises its right in Section 1.4.4.2 to have the Fair Rental Value of any Availability Premises determined by arbitration (as applicable, the “Outside Agreement Date”), then each party shall make a separate determination of the Option Rent, Rent within five (5) business days following the Outside Agreement Datedays, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 3.2.3.1 through 2.2.3. 73.2.3.7, below. If Notwithstanding the terms set forth in Sections 3.2.3.1 through 3.2.3.7 below, in the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant fails to object to shall pay Landlord’s submitted Option Rent until a final determination is made pursuant to the arbitration. Following the arbitration, in the event Tenant’s submitted Option Rent is selected, then (i) Landlord shall make a retroactive adjustment to the Option Rent and credit against Tenant’s next rent due the difference between Landlord’s submitted Option Rent and the arbitrators’ final determination of the Option Rent within the time period set forth hereinRent, and (ii) if Landlord’s fails to credit such amount against Tenant’s next rent due, then Tenant shall be deemed thereafter have the right to have accepted Landlord’s determination of Option Rentdeduct such amount from its rent due under the Lease, as amended). 2.2.3.1 3.2.3.1 Landlord and Tenant shall each appoint one (1) arbitrator who shall be, at the option of the appointing party, be a real estate broker, appraiser or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the leasing or appraisal, as the case may be, of commercial office properties in the Financial District and South of Market areas of North San FranciscoDiego, California. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent (or Fair Rental Value of the Availability Space, as applicable) is the closest to the actual Option Rent (or Fair Rental Value of as determined by the Availability Space, as applicable)arbitrators, taking into account the requirements of Section 2.2.2 3.2.2 of this Lease, as determined by the arbitratorsThird Amendment. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.” 2.2.3.2 3.2.3.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators(2) arbitrators, except that neither and the third arbitrator shall not have represented either Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with during the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counselfive (5) year period immediately preceding the Outside Agreement Date. 2.2.3.3 3.2.3.3 The three (3) arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent (or Fair Rental Value of the Availability Space, as applicable), and shall notify Landlord and Tenant thereof. 2.2.3.4 3.2.3.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant. 2.2.3.5 3.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant. 3.2.3.6 If the two (2) arbitrators fail to agree upon and appoint a third arbitrator within such ten (10)-day period aforesaid, or if both parties fail to appoint an arbitrator within such fifteen (15)-day period aforesaid, then either party may petition the presiding judge of the Superior Court of San Francisco County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator. 2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Francisco Diego County to appoint the Neutral Arbitratorthird arbitrator, subject to criteria in Section 2.2.3.2 3.2.3.1 of this LeaseThird Amendment, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator. 2.2.3.7 3.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally. 2.2.3.8 In the event that the Option Rent (or Fair Rental Value of the Availability Space, as applicable) shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term ( or the Availability Premises Rent Commencement Date for any Availability Space, as applicable), Tenant shall be required to pay the Option Rent (or Fair Rental Value of the Availability Space, as applicable) initially provided by Landlord to Tenant, and upon the final determination of the Option Rent (or Fair Rental Value of the Availability Space, as applicable), the payments made by Tenant shall be reconciled with the actual amounts of Option Rent (or Fair Rental Value of the Availability Space, as applicable) due, and the appropriate party shall make any corresponding payment to the other party.