Common use of Excess Rent Clause in Contracts

Excess Rent. Should Tenant, with or without Landlord's consent, Assign this Lease, Tenant hereby assigns to Landlord and Landlord shall be entitled to receive, all consideration payable to or received by Tenant pursuant to such Assignment which exceeds the Minimum Rent payable by Tenant under this Lease: it being the intent that all increased rents or leasehold bonus value relating to any interest in the Premises shall accrue to Landlord. If there is any question as to whether consideration received represents rent or leasehold bonus value consideration or not, the amount of such consideration to which Landlord shall be entitled shall be based on the difference between the current Minimum Rent payable by Tenant under the Lease and the then fair market rental value of the Premises, including the average of Minimum Rent and Percentage Rent for a thirty-six (36) month period ended immediately prior to the date the fair market rental value of the Premises is determined. If Landlord and Tenant are unable to agree on the fair market rental value of the Premises, such fair market rental value shall be determined in accordance with the following: The Premises shall be appraised by an M.A.I. Appraiser chosen by Landlord ("First Appraiser"). If the appraisal determined by the First Appraiser is deemed unacceptable by Tenant, then Tenant shall so advise Landlord in writing within ten (10) working days after receipt of the appraisal by the First Appraiser and Tenant shall have the right to engage an M.A.I. Appraiser ("Second Appraiser"), at Tenant’s sole expense, to appraise the Premises. In the event Landlord shall deem the appraisal by the Second Appraiser to be unacceptable, then Landlord shall advise Tenant within ten (10) working days after receipt of the appraisal by the Second Appraiser, and the First Appraiser and Second Appraiser shall together choose an M.A.I. Appraiser ("Third Appraiser"). The cost of the Second and Third Appraisers shall be borne by Tenant. If the appraisal determined by the Third Appraiser is greater than the highest appraisal or lower than the lowest appraisal given by the First Appraiser and Second Appraiser, then the appraisal shall be the average of the first two (2) appraisals. If the appraisal determined by the Third Appraiser is not greater than the highest appraisal nor lower than the lowest appraisal determined by the First Appraiser and Second Appraiser, then the appraisal shall be the sum of the appraisals of the First Appraiser, Second Appraiser and Third Appraiser, divided by three (3). The appraisal process shall commence not later than forty-five (45) days prior to the effective date of the Assignment and be concluded within thirty (30) days after the start of such forty-five (45) day period. The appraisal shall be limited to the then prevailing fair market rental value of the Premises.

Excess Rent. Should Tenant, with or without Landlord's consent, Assign this Lease7.5.1 If Landlord approves a Transfer, Tenant hereby assigns shall pay to Landlord and Landlord shall be entitled to receiveLandlord, all consideration payable to or as Additional Rent, fifty percent (50%) of any Excess Rent received by Tenant pursuant to such Assignment which exceeds Tenant. The term “Excess Rent” means all rent, additional rent, and other consideration paid by a Transferee in excess of the Minimum Rent payable by Tenant under this Lease: it being Lease (on a rentable square foot basis, if less than the intent entire Premises is transferred), after deducting Permitted Transfer Costs. As used herein, “Permitted Transfer Costs” means the actual costs incurred and paid by Tenant for (a) any third party leasing commissions that all increased rents or leasehold bonus value relating are reasonable and customary for the market in which the Premises are located and (b) any tenant improvement allowance paid by Tenant to any interest the Transferee for improvements made in the Premises with Landlord’s approval. For purposes of the foregoing calculation, the leasing commissions and any tenant improvement allowance shall accrue be amortized on a straight-line basis over the term of the applicable assignment or sublease. If part of the consideration for such Transfer shall be payable other than in cash, Landlord’s share of such non-cash consideration shall be in such form as is reasonably satisfactory to Landlord. If there is any question as to whether consideration received represents rent or leasehold bonus value consideration or notTenant shall enter into multiple Transfers, the amount of such consideration to which Landlord Excess Rent shall be entitled calculated independently with respect to each Transfer. The Excess Rent due Landlord hereunder shall be based on the difference between the current Minimum Rent payable by Tenant under the Lease earned and the then fair market rental value of the Premisespaid monthly, including the average of Minimum Rent and Percentage Rent for a thirty-six within five (365) month period ended immediately prior to the date the fair market rental value of the Premises is determined. If Landlord and Tenant are unable to agree on the fair market rental value of the Premises, such fair market rental value shall be determined in accordance with the following: The Premises shall be appraised by an M.A.I. Appraiser chosen by Landlord ("First Appraiser"). If the appraisal determined by the First Appraiser is deemed unacceptable by Tenant, then Tenant shall so advise Landlord in writing within ten (10) working days after receipt Tenant receives any Excess Rent from the Transferee. Landlord or its authorized representatives shall have the right at all reasonable times to audit the books, records and papers of the appraisal by the First Appraiser Tenant relating to any Transfer, and Tenant shall have the right to engage an M.A.I. Appraiser ("Second Appraiser"), at Tenant’s sole expense, to appraise the Premises. In the event Landlord shall deem the appraisal by the Second Appraiser to be unacceptable, then Landlord shall advise Tenant within ten (10) working days after receipt of the appraisal by the Second Appraiser, and the First Appraiser and Second Appraiser shall together choose an M.A.I. Appraiser ("Third Appraiser"). The cost of the Second and Third Appraisers shall be borne by Tenantmake copies thereof. If the appraisal determined by the Third Appraiser is greater than the highest appraisal or lower than the lowest appraisal given by the First Appraiser and Second Appraiser, then the appraisal Excess Rent respecting any Transfer shall be the average of the first two (2) appraisals. If the appraisal determined by the Third Appraiser is not greater than the highest appraisal nor lower than the lowest appraisal determined by the First Appraiser and Second Appraiserfound to be understated, then the appraisal Tenant shall be the sum of the appraisals of the First Appraiser, Second Appraiser and Third Appraiser, divided by three (3). The appraisal process shall commence not later than forty-five (45) days prior to the effective date of the Assignment and be concluded within thirty (30) days after demand pay the start deficiency, and if understated by more than three percent (3%), Tenant shall pay Landlord’s costs of such forty-five (45) day period. The appraisal shall be limited to the then prevailing fair market rental value of the Premisesaudit.

Excess Rent. Should Tenant, with or without Landlord's consent, Assign this LeaseIf Landlord approves a Transfer, Tenant hereby assigns shall pay to Landlord and Landlord shall be entitled to receiveLandlord, all consideration payable to or as Additional Rent, fifty percent (50%) of any Excess Rent received by Tenant pursuant to such Assignment which exceeds Tenant. The term "Excess Rent" means all rent, additional rent, and other consideration paid by a Transferee in excess of the Minimum Rent payable by Tenant under this Lease: it being Lease (on a rentable square foot basis, if less than the intent entire Premises is transferred), after deducting Permitted Transfer Costs. As used herein, "Permitted Transfer Costs" means the actual costs incurred and paid by Tenant for (a) any third party leasing commissions that all increased rents are reasonable and customary for the market in which the Premises are located, (b) any tenant improvement costs incurred by Tenant or leasehold bonus value relating allowance paid by Tenant to any interest the Transferee for improvements made in the Premises with Landlord's approval. For purposes of the foregoing calculation, the leasing commissions and any tenant improvement allowance shall accrue be amortized on a straight-line basis over the term of the applicable assignment or sublease. If part of the consideration for such Transfer shall be payable other than in cash, Landlord's share of such non-cash consideration shall be in such form as is reasonably satisfactory to Landlord. If there is any question as to whether consideration received represents rent or leasehold bonus value consideration or notTenant shall enter into multiple Transfers, the amount of such consideration to which Landlord Excess Rent shall be entitled calculated independently with respect to each Transfer. The Excess Rent due Landlord hereunder shall be based on the difference between the current Minimum Rent payable by Tenant under the Lease earned and the then fair market rental value of the Premisespaid monthly, including the average of Minimum Rent and Percentage Rent for a thirty-six within five (365) month period ended immediately prior to the date the fair market rental value of the Premises is determined. If Landlord and Tenant are unable to agree on the fair market rental value of the Premises, such fair market rental value shall be determined in accordance with the following: The Premises shall be appraised by an M.A.I. Appraiser chosen by Landlord ("First Appraiser"). If the appraisal determined by the First Appraiser is deemed unacceptable by Tenant, then Tenant shall so advise Landlord in writing within ten (10) working days after receipt Tenant receives any Excess Rent from the Transferee. Landlord or its authorized representatives shall have the right at all reasonable times to audit the books, records and papers of the appraisal by the First Appraiser Tenant relating to any Transfer, and Tenant shall have the right to engage an M.A.I. Appraiser ("Second Appraiser"), at Tenant’s sole expense, to appraise the Premises. In the event Landlord shall deem the appraisal by the Second Appraiser to be unacceptable, then Landlord shall advise Tenant within ten (10) working days after receipt of the appraisal by the Second Appraiser, and the First Appraiser and Second Appraiser shall together choose an M.A.I. Appraiser ("Third Appraiser"). The cost of the Second and Third Appraisers shall be borne by Tenantmake copies thereof. If the appraisal determined by the Third Appraiser is greater than the highest appraisal or lower than the lowest appraisal given by the First Appraiser and Second Appraiser, then the appraisal Excess Rent respecting any Transfer shall be the average of the first two (2) appraisals. If the appraisal determined by the Third Appraiser is not greater than the highest appraisal nor lower than the lowest appraisal determined by the First Appraiser and Second Appraiserfound to be understated, then the appraisal Tenant shall be the sum of the appraisals of the First Appraiser, Second Appraiser and Third Appraiser, divided by three (3). The appraisal process shall commence not later than forty-five (45) days prior to the effective date of the Assignment and be concluded within thirty (30) days after demand pay the start deficiency, and if understated by more than three percent (3%), Tenant shall pay Landlord's costs of such forty-five (45) day periodaudit. The appraisal provisions of this Section 7.5 shall be limited not apply to the then prevailing fair market rental value of the Premisesa Permitted Transfer.

Excess Rent. Should Tenant, If Tenant shall assign this Lease or sublet the Premises ----------- (other than to a Portfolio Occupant or in connection with any other assignment or without sublease for which Landlord's consentconsent is not needed), Assign this Leaseor any part thereof, Tenant hereby assigns to Landlord at a rental or for other consideration in excess of the Rent or pro rata portion thereof due and Landlord shall be entitled to receive, all consideration payable to or received by Tenant pursuant to such Assignment which exceeds the Minimum Rent payable by Tenant under this Lease: it being the intent that all increased rents or leasehold bonus value relating to any interest in the Premises shall accrue to Landlord. If there is any question as to whether consideration received represents rent or leasehold bonus value consideration or not, the amount Lease (after netting out Tenant's cost of such consideration to which Landlord shall be entitled shall be based on the difference between the current Minimum Rent payable by Tenant under the Lease and the then fair market rental value of the Premises, including the average of Minimum Rent and Percentage Rent for a thirty-six (36) month period ended immediately prior to the date the fair market rental value of the Premises is determined. If Landlord and Tenant are unable to agree on the fair market rental value of the Premises, such fair market rental value shall be determined in accordance with the following: The Premises shall be appraised by an M.A.I. Appraiser chosen by Landlord ("First Appraiser"transaction). If the appraisal determined by the First Appraiser is deemed unacceptable by Tenant, then Tenant shall so advise pay to Landlord as additional Rent 50% of any such excess rent or other monetary consideration immediately upon receipt under any such assignment or, in writing within ten the case of a sublease (10other than to a Portfolio Occupant or in connection with any other assignment or sublease for which Landlord's consent is not needed), (x) working days after receipt on the first day of each month during the term of any sublease 50% of the appraisal excess of all rent and other consideration due from the subtenant for such month over the Rent then payable to Landlord pursuant to the provisions of this Lease for said month (or if only a portion of -the Premises is being sublet, 50% of the excess of all rent and other consideration due from the subtenant for such month over the portion of the Rent then payable to Landlord pursuant to the provisions of this Lease for said month which is allocable on a square footage basis to the space sublet) and (y) immediately upon receipt thereof, 50% of any other consideration realized by the First Appraiser and Tenant from such subletting; it being agreed, however, that Landlord shall not be responsible for any deficiency if Tenant shall have assign this Lease or sublet the right to engage Premises or any part thereof at a rental less than that provided for herein. It is agreed that rental paid by an M.A.I. Appraiser (INITIAL HERE: Landlord: Tenant: DK RP --------- -------- assignee or subtenant which is an affiliate of Tenant which is a "Second Appraiser"), at Tenant’s sole expense, to appraise bookkeeping entry" only without the Premises. In the event Landlord shall deem the appraisal by the Second Appraiser to be unacceptable, then Landlord shall advise Tenant within ten (10) working days after receipt actual exchange of the appraisal by the Second Appraiser, and the First Appraiser and Second Appraiser shall together choose an M.A.I. Appraiser ("Third Appraiser"). The cost of the Second and Third Appraisers shall be borne by Tenant. If the appraisal determined by the Third Appraiser is greater than the highest appraisal or lower than the lowest appraisal given by the First Appraiser and Second Appraiser, then the appraisal shall be the average of the first two (2) appraisals. If the appraisal determined by the Third Appraiser funds is not greater than deemed rental for the highest appraisal nor lower than the lowest appraisal determined by the First Appraiser and Second Appraiser, then the appraisal shall be the sum purpose of the appraisals of the First Appraiser, Second Appraiser and Third Appraiser, divided by three (3). The appraisal process shall commence not later than forty-five (45) days prior to the effective date of the Assignment and be concluded within thirty (30) days after the start of such forty-five (45) day period. The appraisal shall be limited to the then prevailing fair market rental value of the Premisesthis Section 10.3.

Excess Rent. Should Tenant, with or without Landlord's consent, Assign If Landlord consents to any assignment of this Lease, Tenant hereby assigns agrees to pay to Landlord, as additional rent, fifty percent (50%) of all sums and other consideration payable to and for the benefit of Tenant by the assignee on account of the assignment, as and when such sums and other consideration are due and payable by the assignee to or for the benefit of Tenant (or, if Landlord so requires, and without any release of Tenant’s liability for the same, Tenant agrees to instruct the assignee to pay such sums and other consideration directly to Landlord). If for any sublease, Tenant receives rent or other consideration, either initially or over the term of the sublease, in excess of the rent fairly allocable to the portion of the Premises which is subleased based on square footage, Tenant agrees to pay to Landlord and as additional rent fifty percent (50%) of the excess of each such payment of rent or other consideration received by Tenant promptly after its receipt. In calculating excess rent or other consideration which may be payable to Landlord shall under this Subparagraph, Tenant will be entitled to receiverecapture, all consideration payable on an amortized basis over the term of the sublease or assignment, any commercially reasonably third party brokerage commissions and legal fees paid by Tenant in connection with the subletting or assignment and any improvement allowance paid by Tenant to the subtenant or assignee (collectively the “Assignment or Subletting Costs”), provided that, as a condition to Tenant recapturing the Assignment or Subletting Costs, Tenant shall provide to Landlord, within ninety (90) days of Landlord’s execution of Landlord’s consent to the assignment or subletting, a detailed accounting of the Assignment or Subletting Costs and supporting documents, such as receipts and construction invoices. To effect the foregoing, Tenant shall deduct from the monthly amounts received by Tenant pursuant to such Assignment which exceeds from the Minimum subtenant or assignee as rent or consideration (i) the Monthly Base Rent payable by Tenant under this Lease: it being to Landlord for the intent that all increased rents or leasehold bonus value relating to any interest in subject space and (ii) the Premises shall accrue to Landlord. If there is any question as to whether consideration received represents rent or leasehold bonus value consideration or notincremental amount, the amount of such consideration to which Landlord shall be entitled shall be based on the difference between the current Minimum Rent payable by Tenant under the Lease and the then fair market rental value of the Premisesan amortized basis, including the average of Minimum Rent and Percentage Rent for a thirty-six (36) month period ended immediately prior to the date the fair market rental value of the Premises is determined. If Landlord and Tenant are unable to agree on the fair market rental value of the Premises, such fair market rental value shall be determined in accordance with the following: The Premises shall be appraised by an M.A.I. Appraiser chosen by Landlord ("First Appraiser"). If the appraisal determined by the First Appraiser is deemed unacceptable by Tenant, then Tenant shall so advise Landlord in writing within ten (10) working days after receipt of the appraisal by the First Appraiser and Tenant shall have the right to engage an M.A.I. Appraiser ("Second Appraiser"), at Tenant’s sole expense, to appraise the Premises. In the event Landlord shall deem the appraisal by the Second Appraiser to be unacceptable, then Landlord shall advise Tenant within ten (10) working days after receipt of the appraisal by the Second Appraiser, and the First Appraiser and Second Appraiser shall together choose an M.A.I. Appraiser ("Third Appraiser"). The cost of the Second and Third Appraisers shall be borne by Tenant. If the appraisal determined by the Third Appraiser is greater than the highest appraisal or lower than the lowest appraisal given by the First Appraiser and Second Appraiser, then the appraisal shall be the average of the first two (2) appraisals. If the appraisal determined by the Third Appraiser is not greater than the highest appraisal nor lower than the lowest appraisal determined by the First Appraiser and Second Appraiser, then the appraisal shall be the sum of the appraisals of the First Appraiser, Second Appraiser and Third Appraiser, divided by three (3). The appraisal process shall commence not later than forty-five (45) days prior to the effective date of the Assignment or Subletting Costs, and be concluded within thirty fifty (3050%) days after of the start of such forty-five (45) day period. The appraisal then remaining sum shall be limited paid promptly to the then prevailing fair market rental value of the PremisesLandlord.

Excess Rent. Should If Landlord approves an assignment or subletting as herein provided, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the Transfer Profits (as hereinafter defined), as evidenced by written records satisfactory to Landlord. As used herein, "Transfer Profits" means the difference, if any, between (1) the Base Rent plus Additional Rent allocable to that part of the Premises affected by such assignment or sublease pursuant to the provisions of this Lease, and (2) the rent and any additional rent payable by the assignee or sublessee to Tenant, less actual leasing commissions and reasonable attorneys' fees, if any, incurred by Tenant in connection with such assignment or sublease, and actual tenant improvement costs paid by Tenant in improving the Premises for the applicable assignee or subtenant up to an aggregate of five dollars ($5.00) per square foot of space subject to the assignment or sublease transaction. The assignment or sublease agreement, as the case may be, after approval by Landlord, shall not be amended without Landlord's prior written consent, Assign which consent shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by the assignee or subtenant of Tenant's obligations under this LeaseLease and shall contain a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord that Tenant is in default under this Lease with respect to. the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant hereby assigns to Landlord and Landlord shall be entitled to receive, all consideration payable to or received by Tenant pursuant to such Assignment which exceeds the Minimum Rent payable by Tenant under this Lease: it being the intent that all increased rents or leasehold bonus value relating to collects any interest in the Premises shall accrue to Landlord. If there is any question as to whether consideration received represents rent or leasehold bonus value consideration other sums from the assignee or not, the amount of such consideration to which Landlord shall be entitled shall be based on the difference between the current Minimum Rent payable by Tenant under the Lease and the then fair market rental value of the Premises, including the average of Minimum Rent and Percentage Rent for a thirty-six (36) month period ended immediately prior to the date the fair market rental value of the Premises is determined. If Landlord and Tenant are unable to agree on the fair market rental value of the Premises, such fair market rental value shall be determined in accordance with the following: The Premises shall be appraised by an M.A.I. Appraiser chosen by Landlord ("First Appraiser"). If the appraisal determined by the First Appraiser is deemed unacceptable by Tenantsubtenant, then Tenant shall so advise hold such sums in trust for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in writing within ten (10) working days after receipt no way relieve Tenant of the appraisal by the First Appraiser any liability under this Lease. Any assignment or subletting without Landlord's consent shall be void, and Tenant shall have the right to engage an M.A.I. Appraiser ("Second Appraiser")shall, at Tenant’s sole expensethe option of Landlord, to appraise the Premises. In the event Landlord shall deem the appraisal by the Second Appraiser to be unacceptable, then Landlord shall advise Tenant within ten (10) working days after receipt of the appraisal by the Second Appraiser, and the First Appraiser and Second Appraiser shall together choose an M.A.I. Appraiser ("Third Appraiser"). The cost of the Second and Third Appraisers shall be borne by Tenant. If the appraisal determined by the Third Appraiser is greater than the highest appraisal or lower than the lowest appraisal given by the First Appraiser and Second Appraiser, then the appraisal shall be the average of the first two (2) appraisals. If the appraisal determined by the Third Appraiser is not greater than the highest appraisal nor lower than the lowest appraisal determined by the First Appraiser and Second Appraiser, then the appraisal shall be the sum of the appraisals of the First Appraiser, Second Appraiser and Third Appraiser, divided by three (3). The appraisal process shall commence not later than forty-five (45) days prior to the effective date of the Assignment and be concluded within thirty (30) days after the start of such forty-five (45) day period. The appraisal shall be limited to the then prevailing fair market rental value of the Premisesconstitute a Default under this Lease.

Excess Rent. Should If Landlord approves an assignment or subletting as herein provided, Tenant shall pay to Landlord, as Additional Rent, fifty percent (50%) of the Transfer Profits (as hereinafter defined), as evidenced by written records satisfactory to Landlord. As used herein, "Transfer Profits" means the difference, if any, between (1) the Base Rent plus Additional Rent allocable to that part of the Premises affected by such assignment or sublease pursuant to the provisions of this Lease, and (2) the rent and any additional rent payable by the assignee or sublessee to Tenant, less actual leasing commissions and reasonable attorneys' fees, if any, incurred by Tenant in connection with such assignment or sublease, and actual tenant improvement costs paid by Tenant in improving the Premises for the applicable assignee or subtenant up to an aggregate of five dollars ($5.00) per square foot of space subject to the assignment or sublease transaction. The assignment or sublease agreement, as the case may be, after approval by Landlord, shall not be amended without Landlord's prior written consent, Assign which consent shall not be unreasonably withheld, conditioned or delayed, shall contain an express assumption by the assignee or subtenant of Tenant's obligations under this LeaseLease and shall contain a provision directing the assignee or subtenant to pay the rent and other sums due thereunder directly to Landlord upon receiving written notice from Landlord that Tenant is in default under this Lease with respect to the payment of Rent. In the event that, notwithstanding the giving of such notice, Tenant hereby assigns to Landlord and Landlord shall be entitled to receive, all consideration payable to or received by Tenant pursuant to such Assignment which exceeds the Minimum Rent payable by Tenant under this Lease: it being the intent that all increased rents or leasehold bonus value relating to collects any interest in the Premises shall accrue to Landlord. If there is any question as to whether consideration received represents rent or leasehold bonus value consideration other sums from the assignee or not, the amount of such consideration to which Landlord shall be entitled shall be based on the difference between the current Minimum Rent payable by Tenant under the Lease and the then fair market rental value of the Premises, including the average of Minimum Rent and Percentage Rent for a thirty-six (36) month period ended immediately prior to the date the fair market rental value of the Premises is determined. If Landlord and Tenant are unable to agree on the fair market rental value of the Premises, such fair market rental value shall be determined in accordance with the following: The Premises shall be appraised by an M.A.I. Appraiser chosen by Landlord ("First Appraiser"). If the appraisal determined by the First Appraiser is deemed unacceptable by Tenantsubtenant, then Tenant shall so advise hold such sums in trust for the benefit of Landlord and shall immediately forward the same to Landlord. Landlord's collection of such rent and other sums shall not constitute an acceptance by Landlord of attornment by such assignee or subtenant. A consent to one assignment, subletting, occupation or use shall not be deemed to be a consent to any other or subsequent assignment, subletting, occupation or use, and consent to any assignment or subletting shall in writing within ten (10) working days after receipt no way relieve Tenant of the appraisal by the First Appraiser any liability under this Lease. Any assignment or subletting without Landlord's consent shall be void, and Tenant shall have the right to engage an M.A.I. Appraiser ("Second Appraiser")shall, at Tenant’s sole expensethe option of Landlord, to appraise the Premises. In the event Landlord shall deem the appraisal by the Second Appraiser to be unacceptable, then Landlord shall advise Tenant within ten (10) working days after receipt of the appraisal by the Second Appraiser, and the First Appraiser and Second Appraiser shall together choose an M.A.I. Appraiser ("Third Appraiser"). The cost of the Second and Third Appraisers shall be borne by Tenant. If the appraisal determined by the Third Appraiser is greater than the highest appraisal or lower than the lowest appraisal given by the First Appraiser and Second Appraiser, then the appraisal shall be the average of the first two (2) appraisals. If the appraisal determined by the Third Appraiser is not greater than the highest appraisal nor lower than the lowest appraisal determined by the First Appraiser and Second Appraiser, then the appraisal shall be the sum of the appraisals of the First Appraiser, Second Appraiser and Third Appraiser, divided by three (3). The appraisal process shall commence not later than forty-five (45) days prior to the effective date of the Assignment and be concluded within thirty (30) days after the start of such forty-five (45) day period. The appraisal shall be limited to the then prevailing fair market rental value of the Premisesconstitute a Default under this Lease.