Common use of Fair Market Rent Determination Clause in Contracts

Fair Market Rent Determination. The Fair Market Rent shall be determined as follows: i. In the event Lessor and Lessee are unable to agree upon a mutually acceptable Fair Market Rent by the date that is six (6) months prior to the expiration of the Initial Lease Term (the “Fair Market Deadline”), Lessor shall, within fifteen (15) days following the Fair Market Deadline, appoint an appraiser to complete an appraisal of the Fair Market Rent within thirty (30) days after the appointment of Lessor’s appraiser and Lessor shall deliver a copy thereof to Lessee promptly upon receipt by Lessor (“Lessor Appraisal”). ii. If Lessee delivers notice to Lessor of Lessee’s disapproval of the Lessor Appraisal within fifteen (15) business days after Lessee’s receipt of the Lessor Appraisal, then Lessee shall have fifteen (15) days to select an appraiser to deliver an additional appraisal of the Fair Market Rent (the “Lessee Appraisal”). The Lessee Appraisal shall be delivered within thirty (30) days after the appointment of Lessee’s appraiser and Lessee shall deliver a copy thereof to Lessor promptly upon receipt by Lessee. iii. If Lessor delivers notice to Lessee of Lessor’s disapproval of the Lessee Appraisal within fifteen (15) business days after Lessor’s receipt of the Lessee Appraisal, then Lessor and Lessee shall each cause their respective appraisers to jointly select a third appraiser, who shall be an independent appraiser of similar qualifications (the “Joint Appraiser”). If the two appraisers fail to select a Joint Appraiser within thirty (30) days following the date that Lessee received Lessor’s notice of disapproval of the Lessee Appraisal, either Lessor or Lessee may petition a court of competent jurisdiction to appoint a third appraiser. The Joint Appraiser shall, within fifteen (15) days after appointment, select either the Lessor Appraisal or the Lessee Appraisal as the Final Appraisal. iv. Notwithstanding anything to the contrary herein, the Fair Market Rent for the Renewal Term shall not be less than the Base Rent in place at the expiration of the Initial Term and shall be either (i) the Fair Market Rent as expressed in either the Lessor Appraisal or the Lessee Appraisal, or (ii) the Fair Market Rent reflected in the Final Appraisal, as selected by the Joint Appraiser. v. All appraisers appointed hereunder shall be, at the time of their appointment, members of good standing of the American Institute of Real Estate Appraisers. The party whose appraisal the Joint Appraiser did not select shall be responsible for the cost of the Joint Appraiser’s services, otherwise, the cost of the Lessor Appraisal shall be borne by Lessor and the cost of the Lessee Appraisal shall be borne by the Lessee.

Fair Market Rent Determination. The In the event a Retriggering Event has occurred or will occur, Landlord and Tenant shall meet and attempt to agree upon the amount of such Fair Market Rent for the portion of the Property affected by the Retriggering Event. If Landlord and Tenant reach agreement with respect to the Fair Market Rent within thirty (30) days (the “Outside Agreement Date”), then the parties shall be determined as follows: i. execute and deliver an amendment to this Lease to reflect such agreed upon Fair Market Rent. In the event Lessor and Lessee the parties are unable to agree upon a mutually acceptable as to the appropriate amount of the Fair Market Rent by on or before the date that is six (6) months prior Outside Agreement Date, then each party shall submit to the expiration of the Initial Lease Term (the “Fair Market Deadline”), Lessor shall, within fifteen (15) days following the Fair Market Deadline, appoint an appraiser to complete an appraisal other party a separate written determination of the Fair Market Rent within thirty (30) days after the appointment of Lessor’s appraiser Outside Agreement Date, and Lessor such determinations shall deliver a copy thereof be submitted to Lessee promptly upon receipt by Lessor (“Lessor Appraisal”). iiappraisal in accordance with the provisions set forth below. If Lessee delivers notice to Lessor appraisal is required, the following shall apply: (1) Landlord and Tenant shall each appoint one appraiser who shall by profession be an independent MAI certified appraiser who shall have been active over the five (5) year period ending on the date of Lessee’s disapproval such appointment in the appraising of similar properties in Southern California. The determination of the Lessor Appraisal within fifteen (15) business days after Lessee’s receipt appraisers shall be limited solely to the issue of the Lessor Appraisal, then Lessee shall have fifteen (15) days to select an appraiser to deliver an additional appraisal of the actual Fair Market Rent (as determined by the “Lessee Appraisal”)appraisers, taking into account the requirements set forth above in this Section 3.4. The Lessee Appraisal Each such appraiser shall be delivered appointed within thirty (30) days after the Outside Agreement Date. (2) The two (2) appraisers so appointed shall within forty-five (45) days after the date of the appointment of Lessee’s the last appointed appraiser proceed to determine the Fair Market Rent and Lessee shall deliver a copy written report thereof to Lessor promptly each of Landlord, Tenant and the other appraiser; provided, however, that if either Landlord or Tenant fails to appoints its appraiser within the time permitted, or if two (2) appraisers shall have been appointed but only one such appraiser shall have made such determination and delivered a written report thereof to each of Landlord, Tenant and the other appraiser within such forty-five (45) day period, then the determination of such sole appraiser shall be final and binding upon receipt by LesseeLandlord and Tenant. iii(3) If the two (2) appraisers shall have been appointed and shall have made their determinations within the requisite periods set forth above, and if the difference between the amounts so determined shall not exceed five percent (5%) of the lesser of such amounts, then the Fair Market Rent shall be an amount equal to fifty percent (50%) of the sum of the amounts so determined, and shall be final and binding upon Landlord and Tenant. If Lessor delivers notice to Lessee of Lessor’s disapproval the difference between the amounts so determined shall exceed five percent (5%) of the Lessee Appraisal lesser of such amounts, then within fifteen ten (1510) business days after Lessor’s receipt the determination of the Lessee Appraisal, then Lessor and Lessee shall each cause their respective appraisers to jointly select a third appraiser, who shall be an independent appraiser of similar qualifications (the “Joint Appraiser”). If the two appraisers fail to select a Joint Appraiser within thirty (30) days following the date that Lessee received Lessor’s notice of disapproval of the Lessee Appraisal, either Lessor or Lessee may petition a court of competent jurisdiction to appoint a third appraiser. The Joint Appraiser shall, within fifteen (15) days after appointment, select either the Lessor Appraisal or the Lessee Appraisal as the Final Appraisal. iv. Notwithstanding anything to the contrary herein, the Fair Market Rent for by the Renewal Term shall not be less than the Base Rent in place at the expiration last of the Initial Term and shall be either (i) the Fair Market Rent as expressed in either the Lessor Appraisal or the Lessee Appraisal, or (ii) the Fair Market Rent reflected in the Final Appraisal, as selected by the Joint Appraiser. v. All appraisers appointed hereunder shall be, at the time of their appointment, members of good standing of the American Institute of Real Estate Appraisers. The party whose appraisal the Joint Appraiser did not select shall be responsible for the cost of the Joint Appraiser’s services, otherwise, the cost of the Lessor Appraisal shall be borne by Lessor and the cost of the Lessee Appraisal shall be borne by the Lessee.two

Fair Market Rent Determination. The Fair Market Rent for the Extension Term shall be determined as follows: i. In (1) Landlord shall notify Tenant of its initial proposal of Fair Market Rent for the event Lessor Premises for the Extension Term not less than thirty (30) days after receipt of Tenant's Extension Notice. Within thirty (30) days after receipt of Landlord's notice, Tenant shall notify Landlord in writing either that (1) Tenant accepts Landlord's proposal of Fair Market Rent or (ii) Tenant wishes to negotiate Fair Market Rent for the Extension Term. If Tenant does nor. give Landlord any notice within said Thirty (30) day period, Landlord's proposal of Fair Market Rent for the Extension Term shall be binding upon Tenant. If Tenant elects to negotiate Fair Market Rent, Landlord and Lessee Tenant shall negotiate in good faith in an attempt to determine Fair Market Rent for the Extension Term. If Landlord and Tenant are able to agree within twenty (20) days after the date of Tenant notice to Landlord (or if Tenant accepts Landlord's initial proposal), then the amount determined shall constitute a determination of Fair market Rent for purposes of this Section, and the parties shall immediately execute an amendment to this Lease stating the Basic Rent for the Extension Term. (2) If Landlord and Tenant are unable to agree upon a mutually acceptable Fair Market Rent by within twenty (20) days after the date that is six (6) months prior of Tenant's notice to the expiration of the Initial Lease Term (the “Fair Market Deadline”)Landlord, Lessor shall, Tenant will within fifteen (15) days following thereafter at its election in writing to Landlord allow the Fair Market Deadlinelease expire or elect to pursue binding arbitration, appoint an appraiser to complete an appraisal of the Fair Market Rent within thirty with twenty (3020) days after Tenant's election, the appointment of Lessor’s appraiser and Lessor shall deliver a copy thereof to Lessee promptly upon receipt by Lessor (“Lessor Appraisal”). ii. If Lessee delivers notice to Lessor of Lessee’s disapproval of the Lessor Appraisal within fifteen (15) business days after Lessee’s receipt of the Lessor Appraisal, then Lessee shall have fifteen (15) days to select an appraiser to deliver an additional appraisal of the Fair Market Rent (the “Lessee Appraisal”). The Lessee Appraisal shall be delivered within thirty (30) days after the appointment of Lessee’s appraiser and Lessee shall deliver a copy thereof to Lessor promptly upon receipt by Lessee. iii. If Lessor delivers notice to Lessee of Lessor’s disapproval of the Lessee Appraisal within fifteen (15) business days after Lessor’s receipt of the Lessee Appraisal, then Lessor and Lessee parties shall each cause their respective appraisers to jointly select appoint as an arbitrator a third appraiser, real estate appraiser who shall be an independent appraiser of similar qualifications (the “Joint Appraiser”). If the two appraisers fail to select a Joint Appraiser within thirty (30) days following the date that Lessee received Lessor’s notice of disapproval of the Lessee Appraisal, either Lessor or Lessee may petition a court of competent jurisdiction to appoint a third appraiser. The Joint Appraiser shall, within fifteen (15) days after appointment, select either the Lessor Appraisal or the Lessee Appraisal as the Final Appraisal. iv. Notwithstanding anything to the contrary herein, the Fair Market Rent for the Renewal Term shall not be less than the Base Rent in place at the expiration of the Initial Term and shall be either (i) the Fair Market Rent as expressed in either the Lessor Appraisal or the Lessee Appraisal, or (ii) the Fair Market Rent reflected in the Final Appraisal, as selected by the Joint Appraiser. v. All appraisers appointed hereunder shall be, at the time of their appointment, members of good standing member of the American Institute of Real Estate AppraisersAppraisers (or its successor organization) with at least ton (10) years experience in appraising of office properties and leasehold interests therein, including at least five (5) years experience with the markets in the Cities of Walnut Creek, San Xxxxx and Pleasanton, California. If either Landlord or Tenant shall fail timely to appoint an arbitrator, the other may apply to the San Francisco office of the American Arbitration Association (the "AAA" for such appointment of such arbitrator fifteen (15) days after notice that such arbitrator has not been appointed. The party whose appraisal two arbitrators shall attempt to agree on the Joint Appraiser did not select Fair Market Rent. If they fail to agree within ten (10) days, the two arbitrators shall within twenty (20) days after appointment of the second arbitrator, appoint an independent third arbitrator who shall be responsible similarly qualified. if the two arbitrators are unable to agree timely on the selection of the third arbitrator, then either arbitrator on behalf of both may request such appointment from the San Francisco office of the AAA. The two arbitrators selected by the parties shall independently determine and submit to the third arbitrator a written determination of the Fair Market Rent for the Premises, supported by the reasons therefor. The third arbitrator shall select the determination of either Landlord's arbitrator or Tenant's arbitrator as the Fair Market Rent. The role of the third arbitrator shall be limited solely to the issue of whether the determination of Landlord's arbitrator or Tenant's arbitrator is closest to the actual Fair Market Rent and shall have no right to propose a middle ground or to modify either of the two determinations or the provisions of this Lease. The decision of the third arbitrator shall be binding upon Landlord and Tenant. The cost of the Joint Appraiser’s servicesarbitration (exclusive of each party's witness and attorneys' fees, otherwise, the cost of the Lessor Appraisal which shall be paid by such party) shall be borne by Lessor and the cost of the Lessee Appraisal shall be borne equally by the Lesseeparties.

Fair Market Rent Determination. The Fair Market In the event Tenant exercises its right to extend the Term through the first Option Term, then, effective on the first day of the Option Term (the "Option Commencement Date"), Base Rent shall be the then fair market rent of the Premises as of the Option Commencement Date, as reasonably determined as follows: i. In by Landlord, but not less than the event Lessor and Lessee are unable to agree upon a mutually acceptable Fair Market Base Rent by payable for the date that is six (6) months period immediately preceding the Option Commencement Date. Landlord shall notify Tenant of the fair market rent determination prior to the expiration of the Initial Lease Term (the “Fair Market Deadline”), Lessor shall, within fifteen (15) days following the Fair Market Deadline, appoint an appraiser to complete an appraisal of the Fair Market Rent within applicable Option Commencement Date. Within thirty (30) days after receipt of Tenant's notice to exercise the appointment of Lessor’s appraiser and Lessor Option, Landlord shall deliver a copy thereof to Lessee promptly upon receipt by Lessor (“Lessor Appraisal”). ii. If Lessee delivers Tenant written notice to Lessor of Lessee’s disapproval of the Lessor Appraisal within fifteen (15) business days after Lessee’s receipt of the Lessor Appraisal, then Lessee shall have fifteen (15) days to select an appraiser to deliver an additional appraisal Landlord's initial determination of the Fair Market Rent (the “Lessee Appraisal”)Rent. The Lessee Appraisal shall be delivered within thirty (30) days after the appointment of Lessee’s appraiser and Lessee shall deliver a copy thereof to Lessor promptly upon receipt by Lessee. iii. If Lessor delivers notice to Lessee of Lessor’s disapproval of the Lessee Appraisal within fifteen (15) business days after Lessor’s receipt of the Lessee Appraisal, then Lessor and Lessee shall each cause their respective appraisers to jointly select a third appraiser, who shall be an independent appraiser of similar qualifications (the “Joint Appraiser”). If the two appraisers fail to select a Joint Appraiser within thirty (30) days following the date that Lessee received Lessor’s notice of disapproval of the Lessee Appraisal, either Lessor or Lessee may petition a court of competent jurisdiction to appoint a third appraiser. The Joint Appraiser Tenant shall, within fifteen (15) days after appointmentreceipt of Landlord's notice, select either notify Landlord in writing whether Tenant accepts or rejects Landlord's determination of the Lessor Appraisal Fair Market Rent. If Tenant fails to respond with its acceptance or the Lessee Appraisal as the Final Appraisal. iv. Notwithstanding anything to the contrary herein, rejection of the Fair Market Rent for within the Renewal Term required 15-day period, Tenant shall not be less than the Base Rent in place at the expiration deemed to have rejected Landlord's determination of Fair Market Rent. If Tenant notifies Landlord that it rejects Landlord's determination of the Initial Term and shall be either (i) Fair Market Rent, or if Tenant is deemed to have rejected Landlord's determination of the Fair Market Rent as expressed pursuant to the foregoing sentence, the parties will work together in either good faith to agree upon the Lessor Appraisal Fair Market Rent; provided, however, that if the parties fail to do so within thirty (30) days following any rejection or the Lessee Appraisal, or (ii) deemed rejection of the Fair Market Rent reflected by Tenant, Tenant's exercise of the Option shall be deemed null and void and the Term shall end as originally stated. For purposes of this Option, "Fair Market Rent" shall mean the arm's length fair market annual rental rate per square foot under renewal amendments entered into on or about the date on which the Fair Market Rent is being determined hereunder for space comparable to the Premises in the Final AppraisalRetail Project and multi-tenant retail projects similar to the Retail Project in age, as selected by class, use and size within the Joint Appraiser. v. All appraisers appointed hereunder Minneapolis, Minnesota area. The determination of Fair Market Rent shall be, at take into consideration any reasonably anticipated changes in the Fair Market Rent rate from the time of their appointment, members of good standing of the American Institute of Real Estate Appraisers. The party whose appraisal the Joint Appraiser did not select shall be responsible for the cost of the Joint Appraiser’s services, otherwise, the cost of the Lessor Appraisal shall be borne by Lessor such rate is being determined and the cost of time such rate will become effective under the Lessee Appraisal shall be borne by the LesseeLease.