Common use of Determination of Prevailing Market Rent Clause in Contracts

Determination of Prevailing Market Rent. Within thirty (30) days after Landlord’s receipt of the Notice of Exercise, if Base Rent is to be determined with reference to Prevailing Market Rent, Landlord shall provide Tenant with its good faith estimate of the Prevailing Market Rent. If, within thirty (30) days after Tenant’s receipt of Landlord’s estimate, Tenant shall not have notified Landlord of its objection to Landlord’s estimate and of Tenant’s estimate of Prevailing Market Rent, the estimate of Prevailing Market Rent quoted by Landlord shall be deemed to be the Prevailing Market Rent for the Offering Space. If Tenant so notifies Landlord of its objection, the parties shall discuss the matter in good faith for thirty (30) days after Tenant’s objection notice. If within such thirty (30) day period the parties have not agreed on the Prevailing Market Rent rate in writing, then Landlord and Tenant shall, during the ensuing fifteen (15) days, attempt to agree on an arbitrator not affiliated with either party (and if they are unable to do so, either party may request that the President of the American Arbitration Association in Boston choose an arbitrator, as promptly as possible, meeting the criteria set forth below; provided, however, the parties shall have the right during the ten (10) day period following the end of the fifteen (15) day period to submit the names of not more than two (2) potential arbitrators meeting the said criteria and if the parties or either of them makes such a submission, the choice of the President of the American Arbitration Association shall be made from the arbitrators so submitted). Such arbitrator shall have a period of thirty (30) days to determine which of Landlord’s estimate of Prevailing Market Rent or Tenant’s estimate of Prevailing Market Rent hereunder more closely corresponds to the Prevailing Market Rent and the estimate of Prevailing Market Rent which more closely corresponds to the arbitrator’s estimate of Prevailing Market Rent shall be the Prevailing Market Rent for purposes hereof with respect to the subject Offering Space and the determination shall be binding upon the parties. The arbitrator must choose either the Prevailing Market Rent estimate submitted by Landlord or the Prevailing Market Rent Estimate submitted by Tenant. Such arbitrator shall have at least ten (10) years’ experience in the valuation and appraisal of first-class office rents for real estate in the City of Boston, be experienced with leasing transactions exceeding 100,000 square feet within the downtown Boston area, and have no then contractual relationship with either Landlord or Tenant. The expenses of the arbitrator shall be borne equally by the Landlord and the Tenant.

Determination of Prevailing Market Rent. Within thirty (30a) days after Landlord’s receipt If at the end of the Notice Negotiation Period pursuant to Section 39.1(b) (in the case of Exercisean Option to Extend) or Section 39.4(a) (in the case of a Right of First Offer), if Base Rent is to be determined with reference to Lessee elects arbitration of Prevailing Market Rent, Landlord then Lessor and Lessee shall provide Tenant with its good faith estimate each select one Appraiser to determine the Prevailing Market Rent Each such Appraiser shall arrive at a determination of the Prevailing Market Rent. If, Rent and submit his or her conclusions to Lessor and Lessee within thirty (30) days after Tenant’s receipt the expiration of Landlord’s estimatethe thirty (30) day Negotiation Period described in Section 39.1(b) or 39.4(a), Tenant shall not have notified Landlord of its objection to Landlord’s estimate and of Tenant’s estimate of Prevailing Market Rentas the case may be. (b) If only one appraisal is submitted within the requisite time period, the estimate of Prevailing Market Rent quoted by Landlord it shall be deemed to be the Prevailing Market Rent for the Offering SpaceRent. If Tenant both appraisals are submitted within such time period, and if the two appraisals so notifies Landlord submitted differ by less than ten (10) percent of its objectionthe higher of the two, the parties average of the two shall discuss be the matter in good faith for Prevailing Market Rent. If the two appraisals differ by more than ten (10) percent of the higher of the two, then the two Appraisers shall immediately select a third Appraiser who will within thirty (30) days after Tenant’s objection notice. If within such thirty (30) day period the parties have not agreed on the Prevailing Market Rent rate in writing, then Landlord and Tenant shall, during the ensuing fifteen (15) days, attempt to agree on an arbitrator not affiliated with either party (and if they are unable to do so, either party may request that the President of the American Arbitration Association in Boston choose an arbitrator, as promptly as possible, meeting the criteria set forth below; provided, however, the parties shall have the right during the ten (10) day period following the end his or her selection make a determination of the fifteen (15) day period to submit the names of not more than two (2) potential arbitrators meeting the said criteria and if the parties or either of them makes such a submission, the choice of the President of the American Arbitration Association shall be made from the arbitrators so submitted). Such arbitrator shall have a period of thirty (30) days to determine which of Landlord’s estimate of Prevailing Market Rent or Tenant’s estimate of Prevailing Market Rent hereunder more closely corresponds to the Prevailing Market Rent and submit such determination to Lessor and Lessee. This third appraisal will then be averaged with the estimate closer of Prevailing Market Rent which more closely corresponds to the arbitrator’s estimate of Prevailing Market Rent two previous appraisals and the result shall be the Prevailing Market Rent for Rent. (c) For purposes hereof with respect to the subject Offering Space and the determination of this Section 39.2, “Appraiser” shall be binding upon either (i) an appraiser who is a member of the parties. The arbitrator must choose either American Institute of Real Estate Appraisers with not less than five (5) years experience appraising office and industrial properties in the Prevailing Market Rent estimate submitted by Landlord Denver metropolitan area; or the Prevailing Market Rent Estimate submitted by Tenant. Such arbitrator shall have (ii) a commercial realtor with at least ten twelve (1012) years’ years experience in the valuation Denver metropolitan area. Each party shall pay the cost of the appraiser selected by such party and appraisal one-half of firstthe cost of the third appraiser plus one-class office rents for real estate half of any other costs incurred in the City of Boston, be experienced with leasing transactions exceeding 100,000 square feet within the downtown Boston area, and have no then contractual relationship with either Landlord or Tenant. The expenses of the arbitrator shall be borne equally by the Landlord and the Tenantdetermination.

Determination of Prevailing Market Rent. Within thirty (30) days after Landlord’s receipt of the Notice of Exercise, if Base Rent is to be determined with reference to Prevailing Market Rent, Landlord shall provide Tenant with its good faith estimate of the Prevailing Market Rent. If, within thirty (30) days after Tenant’s receipt of Landlord’s estimate, Tenant shall not have notified Landlord of its objection to Landlord’s estimate and of Tenant’s estimate of Prevailing Market Rent, the estimate of Prevailing Market Rent quoted by Landlord shall be deemed to be the Prevailing Market Rent for the Offering Space. If Tenant so notifies Landlord of its objection, the parties shall discuss the matter in good faith for thirty (30) days after Tenant’s objection notice. If within such thirty (30) day period the parties have not agreed on the Prevailing Market Rent rate in writing, then Landlord and Tenant shall, during the ensuing fifteen (15) days, attempt to agree on an arbitrator not affiliated with either party (and if they are unable to do so, either party may request that the President of the American Arbitration Association in Boston choose an arbitrator, as promptly as possible, meeting the criteria set forth below; provided, however, the parties shall have the right during the ten (10) day period following the end of the fifteen (15) day period to submit the names of not more than two (2) potential arbitrators meeting the said criteria and if the parties or either of them makes such a submission, the choice of the President of the American Arbitration Association shall be made from the arbitrators so submitted). Such arbitrator shall have a period of thirty (30) days to determine which of Landlord’s estimate of Prevailing Market Rent or Tenant’s estimate of Prevailing Market Rent hereunder more closely corresponds to the Prevailing Market Rent and the estimate of Prevailing Market Rent which more closely corresponds to the arbitrator’s estimate of Prevailing Market Rent shall be the Prevailing Market Rent for purposes hereof with respect to the subject Offering Space and the determination shall be binding upon the parties. The arbitrator must choose either the Prevailing Market Rent estimate submitted by Landlord or the Prevailing Market Rent Estimate submitted by Tenant. Such arbitrator shall have at least ten (10) years’ experience in the valuation and appraisal of first-class office rents for real estate in the City of Boston, be experienced with leasing transactions exceeding 100,000 square feet within the downtown Boston area, and have no then contractual relationship with either 8740051.13 Landlord or Tenant. The expenses of the arbitrator shall be borne equally by the Landlord and the Tenant.

Determination of Prevailing Market Rent. If Tenant shall have exercised a Renewal Option, then within fifteen (15) days after the Outside Option Exercise Date, Landlord shall advise Tenant in writing of the amount of Prevailing Market Rent for the Renewal Term. Within thirty (30) days after Landlord’s receipt of the Notice of Exercise, if Base Rent is to be determined with reference to Prevailing Market RentOutside Option Exercise Date, Landlord and Tenant shall provide Tenant with its meet and attempt in good faith estimate of the Prevailing Market Rent. If, within thirty (30) days after Tenant’s receipt of Landlord’s estimate, Tenant shall not have notified Landlord of its objection to Landlord’s estimate and of Tenant’s estimate of Prevailing Market Rent, the estimate of Prevailing Market Rent quoted by Landlord shall be deemed to be the mutually determine Prevailing Market Rent for the Offering Spacepurposes of the foregoing. If Tenant so notifies Landlord of its objection, the parties shall discuss the matter in good faith for thirty (30) days after Tenant’s objection notice. If have not reached agreement on Prevailing Market Rent within such thirty (30) day period, as such initial thirty (30) day period may be extended by the mutual agreement in writing of the parties have (the “Initial Rent Determination Period”), then each party shall appoint a real estate broker and shall give to the other party the identity of the broker no later than the date that is five (5) days after the expiration of the Initial Rent Determination Period. The two brokers shall either (i) agree upon Prevailing Market Rent or (ii) mutually appoint a commercial real estate broker with qualifications and experience appropriate to determine Prevailing Market Rent (the “Appraiser Expert”). If the brokers cannot agreed reach agreement on the Prevailing Market Rent rate or the appointment of the Appraiser Expect by the date that is twenty (20) days after the end of the Initial Rent Determination Period then either Landlord or Tenant may file a declaratory relief action or other appropriate proceeding in writingthe Colorado State Court having jurisdiction for the immediate determination and designation of the Appraiser Expert, then Landlord who shall be a commercial real estate broker with qualifications and Tenant shall, during experience appropriate to resolve matters as to which the ensuing parties do not agree and with not less than ten (10) years experience in commercial office leasing for properties similar to the Project in the relevant area. The broker for each party shall make a written presentation to the Appraiser Expert within fifteen (15) days, attempt to agree on an arbitrator not affiliated with either party (and if they are unable to do so, either party may request that the President days after designation of the American Arbitration Association in Boston choose an arbitratorAppraiser Expert, as promptly as possible, meeting the criteria set forth below; provided, however, the parties shall have the right during the ten (10) day period following the end of the and within fifteen (15) day period to submit days after such presentations the names of not more than two (2) potential arbitrators meeting Appraiser Expert shall determine the said criteria and if the parties or either of them makes such a submission, the choice of the President of the American Arbitration Association shall be made from the arbitrators so submitted). Such arbitrator shall have a period of thirty (30) days to determine which of Landlord’s estimate amount of Prevailing Market Rent or Tenant’s estimate of Prevailing Market Rent hereunder more closely corresponds to the Prevailing Market Rent and the estimate of Prevailing Market Rent Rent, which more closely corresponds to the arbitrator’s estimate of Prevailing Market Rent shall be the Prevailing Market Rent for purposes hereof with respect to the subject Offering Space final and the determination shall be binding upon the parties. The arbitrator must choose either Each party shall pay the fees and expenses of the broker designated by it plus fifty percent (50%) of the cost of the Appraiser Expert. Each of Landlord and Tenant shall strictly comply with the time period set forth in this Paragraph and in all other respects shall use diligent and good faith efforts to agree upon or obtain a determination of Prevailing Market Rent estimate submitted by Landlord or the Prevailing Market Rent Estimate submitted by Tenant. Such arbitrator shall have at least as soon as practicable and, in any event, within one hundred ten (10110) years’ experience in days following the valuation and appraisal of first-class office rents for real estate in the City of Boston, be experienced with leasing transactions exceeding 100,000 square feet within the downtown Boston area, and have no then contractual relationship with either Landlord or Tenant. The expenses of the arbitrator shall be borne equally by the Landlord and the TenantOutside Option Exercise Date.

Determination of Prevailing Market Rent. Within thirty (30) days after Landlord’s receipt of the Notice of Exercise, if Base Rent is to be determined with reference to “Prevailing Market Rent” shall be determined based on the use of the Premises as first class office space utilizing properties of a similar character in comparable first-class office buildings within the Market Area. Within 30 days after receipt of Tenant’s Extension Notice, Landlord shall provide Tenant with its good faith estimate designate the Annual Fixed Rent payable in respect of the Extended Term in question (“Landlord’s Determination”), but Landlord shall not be required to make such designation more than seventeen (17) months prior to the commencement of the Extended Term in question. The Annual Fixed Rent for the first Extended Term shall be equal to 95% of the Prevailing Market Rent. If, within thirty (30) days after Tenant’s receipt The Annual Fixed Rent for the second Extended Term shall be equal to 100% of Landlord’s estimate, Tenant shall not have notified Landlord of its objection to Landlord’s estimate and of Tenant’s estimate of the Prevailing Market Rent, the estimate of Prevailing Market Rent quoted by Landlord shall be deemed to be the Prevailing Market Rent for the Offering Space. If Tenant so notifies Landlord of its objectiondisagrees with Landlord’s Determination, the parties shall discuss the matter negotiate in good faith for thirty (30) days after Tenant’s objection notice(“Negotiation Period”) to reach agreement on the Prevailing Market Rent. If within such thirty (30) day period the parties have not agreed reached an agreement on the Prevailing Market Rent rate in writing, then Landlord and Tenant shall, during the ensuing fifteen (15) days, attempt to agree on an arbitrator not affiliated with either party (and if they are unable to do so, either party may request that the President of the American Arbitration Association in Boston choose an arbitrator, as promptly as possible, meeting the criteria set forth below; provided, however, the parties shall have the right during the ten (10) day period following by the end of the fifteen Negotiation Period, then Tenant shall have the right, within five (155) day period to submit days after the names of not more than two (2) potential arbitrators meeting the said criteria and if the parties or either of them makes such a submission, the choice expiration of the President Negotiation Period, to (i) give Landlord a written notice (“Broker Determination Notice”) requesting a broker determination (the “Broker Determination”) of the American Arbitration Association shall be made from the arbitrators so submitted). Such arbitrator shall have a period of thirty (30) days to determine which of Landlord’s estimate of Prevailing Market Rent or Tenant’s estimate of Prevailing Market Rent hereunder more closely corresponds to the Prevailing Market Rent and the estimate of Prevailing Market Rent which more closely corresponds to the arbitrator’s estimate of Prevailing Market Rent shall be the Prevailing Market Rent for purposes hereof with respect such Extended Term, which Broker Determination shall be made in the manner set forth in Exhibit G, or (ii) to rescind its Extension Notice by delivering written notice thereof (a “Rescission Notice”) to Landlord. If Tenant fails timely to request the subject Offering Space Broker Determination or timely to issue a Rescission Notice, then the Term of the Lease shall be extended for the applicable Extended Term and the determination Annual Fixed Rent for such Extended Term shall be binding upon the parties. The arbitrator must choose either the Prevailing Market Rent estimate submitted by Landlord or the Prevailing Market Rent Estimate submitted by Tenant. Such arbitrator shall have at least ten (10) years’ experience in the valuation and appraisal of first-class office rents for real estate in the City of Boston, be experienced with leasing transactions exceeding 100,000 square feet within the downtown Boston area, and have no then contractual relationship with either Landlord or Tenant. The expenses of the arbitrator shall be borne equally by the Landlord and the Tenantequal to Landlord’s Determination.

Determination of Prevailing Market Rent. Within thirty (30) days after In the event Tenant exercises an option to extend but objects to Landlord’s receipt determination of the Notice of Exercise, if Base prevailing market rent set forth in the Option Rent is to be determined with reference to Prevailing Market RentNotice, Landlord and Tenant shall provide Tenant with its attempt to agree in good faith estimate of upon the Prevailing Market Rentprevailing market rent for the applicable extension period. If, If Landlord and Tenant fail to reach agreement within thirty (30) days after following Tenant’s receipt of Landlord’s estimate, Tenant shall not have notified Landlord delivery of its objection to Landlord’s estimate the Option Rent Notice (the “Outside Agreement Date”), then each party shall make a separate determination of the prevailing market rent, and of Tenant’s estimate of Prevailing Market Rent, within ten (10) business days after the estimate of Prevailing Market Rent quoted by Landlord Outside Agreement Date the parties will concurrently exchange such determinations and such determinations shall be deemed submitted to be the Prevailing Market Rent for the Offering Spacearbitration in accordance with Sections 1 through 5 below. 1. If Tenant so notifies Landlord of its objection, the parties shall discuss the matter in good faith for thirty (30) days after Tenant’s objection notice. If within such thirty (30) day period the parties have not agreed on the Prevailing Market Rent rate in writing, then Landlord and Tenant shallshall mutually agree upon and appoint one arbitrator who shall by profession be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the leasing of comparable research and development (R&D) properties in the vicinity of the Project. The determination of the arbitrator shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted prevailing market rent is the closest to the actual prevailing market rent, during as determined by the ensuing arbitrator, taking into account the requirements of this Addendum 4. The arbitrator shall be appointed within fifteen (15) daysbusiness days after the applicable Outside Agreement Date, attempt and in the event the parties are unable to agree on an arbitrator not affiliated with either party (and if they are unable to do soarbitrator, then either party may request that petition to the President presiding judge of the American Arbitration Association in Boston choose Alameda County Superior Court to appoint an arbitrator, as promptly as possible, arbitrator meeting the criteria requirements set forth below; provided, however, the parties above. 2. The arbitrator shall have the right during the within ten (10) day period following the end business days of the fifteen (15) day period his or her appointment reach a decision as to submit the names of not more than two (2) potential arbitrators meeting the said criteria and if whether the parties or either of them makes such a submission, the choice of the President of the American Arbitration Association shall be made from the arbitrators so submitted). Such arbitrator shall have a period of thirty (30) days to determine which of use Landlord’s estimate of Prevailing Market Rent or Tenant’s estimate of Prevailing Market Rent hereunder more closely corresponds to the Prevailing Market Rent submitted prevailing market rent and the estimate of Prevailing Market Rent which more closely corresponds to the arbitrator’s estimate of Prevailing Market Rent shall be the Prevailing Market Rent for purposes hereof with respect to the subject Offering Space notify Landlord and the determination shall be binding upon the partiesTenant thereof. The arbitrator must choose either between the Prevailing Market Rent estimate submitted by Landlord Landlord’s proposal and the Tenant’s proposal and may not compromise between the two, average or the Prevailing Market Rent Estimate submitted by Tenant. Such arbitrator shall have at least ten (10) years’ experience in the valuation and appraisal of first-class office rents for real estate in the City of Boston, be experienced with leasing transactions exceeding 100,000 square feet within the downtown Boston area, and have no then contractual relationship with either Landlord or Tenantselect some other amount. 3. The expenses decision of the arbitrator shall be borne equally by the binding upon Landlord and the Tenant. 4. The arbitration will be conducted pursuant to the provisions of the American Arbitration Association, but subject to the instructions set forth in this Addendum 4. 5. The cost of arbitration shall be paid by Landlord and Tenant equally.