Common use of Determination of Fair Market Rental Value Clause in Contracts

Determination of Fair Market Rental Value. Promptly after receiving Tenant’s Extension Notice pursuant to Section 16.1 above, Landlord shall provide Tenant with Landlord’s good faith estimate of the Fair Market Rental Value (as defined in Section 16.3 below) of the Premises for the upcoming Extended Term, but in no event shall Landlord be required to deliver such estimate sooner than eleven (11) months prior to the expiration of the Term then in effect. If Tenant is unwilling to accept Landlord’s estimate of the Fair Market Rental Value as set forth in Landlord’s notice referred to above, and the parties are unable to reach agreement thereon within thirty (30) days after the delivery of such notice by Landlord, then either party may submit the determination of the Fair Market Rental Value of the Premises to arbitration by giving notice to the other party naming the initiating party’s arbitrator within ten (10) days after the expiration of such thirty (30) day period. Within fifteen (15) days after receiving a notice of initiation of arbitration, the responding party shall appoint its own arbitrator by notifying the initiating party of the responding party’s arbitrator. If the second arbitrator shall not have been so appointed within such fifteen (15) day period, the Fair Market Rental Value of the Premises shall be determined by the initiating party’s arbitrator. If the second arbitrator shall have been so appointed, the two arbitrators thus appointed shall, within fifteen (15) days after the responding party’s notice of appointment of the second arbitrator, appoint a third arbitrator. If the two initial arbitrators are unable timely to agree on the third arbitrator, then either may, on behalf of both, request such appointment by the Boston office of JAMS, Inc., or its successor, or, on its failure, refusal or inability to act, by a court of competent jurisdiction. The Fair Market Rental Value of the Premises for the Extended Term shall be determined by the method commonly known as Baseball Arbitration, whereby Landlord’s selected arbitrator and Tenant’s selected arbitrator shall each set forth its respective determination of the Fair Market Rental Value of the Premises, and the third arbitrator must select one or the other (it being understood that the third arbitrator shall be expressly prohibited from selecting a compromise figure). Landlord’s selected arbitrator and Tenant’s selected arbitrator shall deliver their determinations of the Fair Market Rental Value of the Premises to the third arbitrator within five (5) Business Days of the appointment of the third arbitrator and the third arbitrator shall render his or her decision within ten (10) days after receipt of both of the other two determinations of the Fair Market Rental Value of the Premises. The third arbitrator’s decision shall be binding on both Landlord and Tenant. The third arbitrator shall be a commercial real estate broker who is independent from the parties and who has not worked for either party or their affiliates in the prior five (5) years and who has at least ten (10) years’ experience in Comparable Buildings. Each party shall pay the fees of its own arbitrator, and the fees of the third arbitrator shall be shared equally by the parties. In the event Tenant initiates the aforesaid arbitration process and as of the commencement of the Extended Term the amount of the Basic Rent for the Extended Term has not been determined, Tenant shall pay the amount determined by Landlord for the Premises and when the determination has actually been made, an appropriate retroactive adjustment shall be made as of the commencement of the Extended Term if necessary. In the event that such determination shall result in an overpayment by Tenant of any Basic Rent, such overpayment shall be paid by Landlord to Tenant promptly after such determination has been made, and if such determination shall result in an underpayment by Tenant of any Basic Rent, Tenant shall pay any such amounts to Landlord promptly following such determination.

Determination of Fair Market Rental Value. Promptly Within thirty (30) days after receiving receipt of Tenant’s Extension Notice pursuant to Section 16.1 aboveExercise Notice, Landlord shall provide notify Tenant with Landlord’s good faith estimate of the Fair Market Rental Value (as defined in Section 16.3 below) of the Premises for the upcoming Extended Term, but in no event shall Landlord be required to deliver such estimate sooner than eleven (11) months prior to the expiration of the Term then in effect. If Tenant is unwilling to accept Landlord’s estimate of the Fair Market Rental Value for the Premises, as set forth in determined below, for determining monthly Base Rent during the ensuing Extension Term; provided, however, if Tenant’s Exercise Notice is given more than fifteen (15) months before the Expiration Date, then Landlord may, at Landlord’s sole discretion, defer giving its estimate of Fair Market Rental Value until any date which is at least fifteen (15) months before the Expiration Date. Within thirty (30) days after receipt of such notice referred from Landlord, Tenant shall notify Landlord in writing that it: (i) agrees with such rental rate; (ii) disagrees with such rental rate; or (iii) withdraws its Exercise Notice, provided, however, Tenant shall only have the right to above, and withdraw its Exercise Notice after the parties are unable to reach agreement thereon within earlier of (A) the date which is thirty (30) days after the date of Landlord’s estimate of the Fair Market Rental Value, or (B) the date which is twelve (12) months prior to the then applicable Expiration Date (which means that Tenant will have no right to revoke Tenant’s Exercise Notice if Tenant’s Exercise Notice is not given more than thirteen (13) months prior to the then applicable Expiration Date). Tenant’s failure to respond within such thirty (30) day period shall constitute Tenant’s disagreement with such rental rate. If Tenant disagrees with Landlord’s estimate of Fair Market Rental Value for the Premises (either by timely written notice to Landlord or by failing to respond within the thirty (30) day period described above), then the parties shall meet and endeavor to agree within fifteen (15) days after (i) Landlord Tenant give notice that it disagrees with the rental rate or (ii) the expiration of the thirty (30) day period described above if Tenant fails to respond. If the parties cannot agree upon the Fair Market Rental Value within said fifteen (15) day period, then the parties shall submit the matter to binding appraisal in accordance with the following procedure except that in any event neither party shall be obligated to start such procedure sooner than twelve (12) months before the expiration of the Term. Within fifteen (15) days of the conclusion of the period during which the two parties fail to agree (but not sooner than twelve (12) months before the expiration of the Term), the parties shall either (i) jointly appoint an appraiser for this purpose, in which case that single appraiser shall determine Fair Market Rental Value and the determination of that appraiser shall be binding and conclusive upon the parties; or (ii) failing this joint action, each separately designate a disinterested appraiser. No person shall be appointed or designated an appraiser unless such person has at least five (5) years’ experience immediately prior to the date in question in either (a) appraising major commercial property or (b) leasing commercial office space in San Mateo County and is a member of a recognized society of real estate appraisers or brokers. Within thirty (30) days after the appointment, each of the two appraisers shall simultaneously submit to the other a sealed envelope containing such appraisers determination of the Fair Market Rental Value for the Premises. If the determinations agree on the Fair Market Rental Value for the Premises, such determinations shall be binding and conclusive upon the parties. If the two determinations do not agree, and the two appraisers cannot reach agreement on the Fair Market Rental Value for the Premises within ten (10) days after delivery of such notice by Landlordsealed envelopes,, then either party may submit the appraisers thus appointed shall appoint a third disinterested appraiser having like qualifications within five (5) days. Within thirty (30) days after the appointment of the third appraiser, such appraiser shall select which of the two determinations it believes is closest to the Fair Market Rental Value of the Premises, and the determination of so selected shall be deemed to be the Fair Market Rental Value of the Premises and shall be binding and conclusive upon the parties. Each party shall pay the fees and expenses of the appraiser appointed by it and shall share equally the fees and expenses of the third appraiser. If the two appraisers appointed by the parties cannot agree on the appointment of the third appraiser, they or either of them shall give notice of such failure to arbitration by giving notice agree to the other party naming parties and if the initiating party’s arbitrator parties fail to agree upon the selection of such third appraiser within ten (10) days after the expiration of such thirty (30) day period. Within fifteen (15) days after receiving a notice of initiation of arbitration, the responding party shall appoint its own arbitrator by notifying the initiating party of the responding party’s arbitrator. If the second arbitrator shall not have been so appraisers appointed within such fifteen (15) day period, the Fair Market Rental Value of the Premises shall be determined by the initiating party’s arbitrator. If the second arbitrator shall have been so appointed, the two arbitrators thus appointed shall, within fifteen (15) days after the responding party’s notice of appointment of the second arbitrator, appoint a third arbitrator. If the two initial arbitrators are unable timely to agree on the third arbitratorparties give such notice, then either mayof the parties, on behalf of bothupon notice to the other party, may request such appointment by the Boston office of JAMS, Inc., or its successor, American Arbitration Association or, on its failure, refusal or inability to act, by a court of competent jurisdiction. The Fair Market Rental Value may apply for such appointment to the presiding judge of the Premises for the Extended Term shall be determined by the method commonly known as Baseball ArbitrationSuperior Court of San Mateo County, whereby Landlord’s selected arbitrator and Tenant’s selected arbitrator shall each set forth its respective determination of the Fair Market Rental Value of the Premises, and the third arbitrator must select one or the other (it being understood that the third arbitrator shall be expressly prohibited from selecting a compromise figure). Landlord’s selected arbitrator and Tenant’s selected arbitrator shall deliver their determinations of the Fair Market Rental Value of the Premises to the third arbitrator within five (5) Business Days of the appointment of the third arbitrator and the third arbitrator shall render his or her decision within ten (10) days after receipt of both of the other two determinations of the Fair Market Rental Value of the Premises. The third arbitrator’s decision shall be binding on both Landlord and Tenant. The third arbitrator shall be a commercial real estate broker who is independent from the parties and who has not worked for either party or their affiliates in the prior five (5) years and who has at least ten (10) years’ experience in Comparable Buildings. Each party shall pay the fees of its own arbitrator, and the fees of the third arbitrator shall be shared equally by the parties. In the event Tenant initiates the aforesaid arbitration process and as of the commencement of the Extended Term the amount of the Basic Rent for the Extended Term has not been determined, Tenant shall pay the amount determined by Landlord for the Premises and when the determination has actually been made, an appropriate retroactive adjustment shall be made as of the commencement of the Extended Term if necessary. In the event that such determination shall result in an overpayment by Tenant of any Basic Rent, such overpayment shall be paid by Landlord to Tenant promptly after such determination has been made, and if such determination shall result in an underpayment by Tenant of any Basic Rent, Tenant shall pay any such amounts to Landlord promptly following such determinationCalifornia.

Determination of Fair Market Rental Value. Promptly after receiving Tenant’s Provided Tenant has timely delivered an Extension Notice hereunder to extend the Term of this Lease pursuant to Section 16.1 aboveabove and the conditions for Tenant’s exercise have been satisfied, Landlord shall provide Tenant Tenant, at least nine (9) months prior to the then expiration of the Term of this Lease, with Landlord’s good faith estimate of the Fair Market Rental Value (as defined in Section 16.3 below) of the Premises for the upcoming Extended Term, but in no event shall Landlord be required to deliver such estimate sooner than eleven (11) months prior to the expiration of the Term then in effect. If Tenant is unwilling to accept disagrees with Landlord’s estimate of the Fair Market Rental Value as set forth in Landlord’s notice referred to above, Tenant shall notify Landlord within ten (10) Business Days after its receipt of Landlord’s notice setting forth Tenant’s estimate of the Fair Market Rental Value of the Premises and the parties agree to act in good faith to attempt to reach agreement on the Fair Market Rental Value of the Premises for the Extended Term. If Tenant fails to notify Landlord that Tenant disagrees with Landlord’s estimate and setting forth Tenant’s Fair Market Rental Value estimate within such ten (10) Business Day period then Tenant will be deemed to have accepted Landlord’s estimate of the Fair Market Rental Value for the Premises during the Extended Term. If Tenant has timely given its dispute notice and the parties are unable to reach agreement thereon within thirty (30) days after the delivery of such notice by LandlordTenant, then either party may submit the determination of the Fair Market Rental Value of the Premises to arbitration by giving notice to the other party naming the initiating party’s arbitrator within ten (10) days Business Days after the expiration of such thirty (30) day period. Within fifteen (15) days after receiving a notice of initiation of arbitration, the responding party shall appoint its own arbitrator by notifying the initiating party of the responding party’s arbitrator. If the second arbitrator shall not have been so appointed within such fifteen (15) day period, the Fair Market Rental Value initiating party shall deliver written notice of such failure to the Premises responding party and the responding party shall be determined by have a period of ten (10) days after receipt of such notice to appoint its arbitrator and deliver written notice thereof to the initiating party’s arbitrator. If the responding party fails to notify the initiating party of its designated arbitrator within the foregoing additional ten (10) day period, then the second arbitrator shall have been so appointedbe chosen in the same manner as described below with respect to the selection of the third arbitrator. Upon the selection (or appointment, as the case may be) of the second arbitrator, the two arbitrators thus appointed shall, within fifteen (15) days after the responding party’s notice of appointment of the second arbitrator, appoint a third arbitrator. If the two initial arbitrators are unable timely to agree on the third arbitrator, then either may, on behalf of both, request such appointment by the Boston office of JAMS, Inc.the American Arbitration Association, or its successor, or, on its failure, refusal or inability to act, by a court of competent jurisdiction. The Fair Market Rental Value of the Premises for the Extended Term shall be determined by the method commonly known as Baseball Arbitration“baseball arbitration”, whereby Landlord’s selected arbitrator and Tenant’s selected arbitrator shall each set forth its respective determination of the Fair Market Rental Value of the Premises, and the third arbitrator must select one or the other (it being understood that the third arbitrator shall be expressly prohibited from selecting a compromise figure). Landlord’s selected arbitrator and Tenant’s selected arbitrator shall deliver their determinations of the Fair Market Rental Value of the Premises to the third arbitrator within five (5) Business Days of the appointment of the third arbitrator and the third arbitrator shall render his or her decision within ten (10) days after receipt of both of the other two determinations of the Fair Market Rental Value of the Premises. The third arbitrator’s decision shall be binding on both Landlord and Tenant. The third arbitrator shall be a commercial real estate broker who is independent from the parties and who has not worked for either party or their affiliates in the prior five (5) years and who has at least ten (10) years’ experience in Comparable Buildings. Each party shall pay the fees of its own arbitrator, and the fees of the third arbitrator shall be shared equally by the parties. In the event Tenant initiates the aforesaid arbitration process and as of the commencement of the Extended Term the amount of the Basic Rent for the Extended Term has not been determined, Tenant shall pay the amount determined by Landlord for the Premises and when the determination has actually been made, an appropriate retroactive adjustment shall be made as of the commencement of the Extended Term if necessary. In the event that such determination shall result in an overpayment by Tenant of any Basic Rent, such overpayment shall be paid by Landlord to Tenant promptly after such determination has been made, and if such determination shall result in an underpayment by Tenant of any Basic Rent, Tenant shall pay any such amounts to Landlord promptly following such determination.ACTIVE/91437610.6

Determination of Fair Market Rental Value. Promptly after receiving Tenant’s Extension Notice pursuant to Section 16.1 above, Landlord shall provide Tenant with Landlord’s good faith estimate of the The "Fair Market Rental Value (Value" will be either as defined Landlord and Tenant will agree or, in the event that Landlord and Tenant cannot agree, as determined by appraisal pursuant to this Section 16.3 below) 17.3. In all cases, whether determined by agreement of the Premises for the upcoming Extended Term, but in no event shall Landlord be required and Tenant or determined by appraisal pursuant to deliver such estimate sooner than eleven (11) months prior to the expiration of the Term then in effect. If Tenant is unwilling to accept Landlord’s estimate of the Fair Market Rental Value as set forth in Landlord’s notice referred to above, and the parties are unable to reach agreement thereon within thirty (30) days after the delivery of such notice by Landlord, then either party may submit the determination of the Fair Market Rental Value of the Premises to arbitration by giving notice to the other party naming the initiating party’s arbitrator within ten (10) days after the expiration of such thirty (30) day period. Within fifteen (15) days after receiving a notice of initiation of arbitration, the responding party shall appoint its own arbitrator by notifying the initiating party of the responding party’s arbitrator. If the second arbitrator shall not have been so appointed within such fifteen (15) day periodthis Section 17.3, the Fair Market Rental Value of the Premises shall will be determined by (a) as of the initiating party’s arbitrator. If date which is twelve (12) months prior to the second arbitrator shall have been so appointed, commencement of the two arbitrators thus appointed shall, within fifteen Renewal Term; (15b) days assuming that this Lease will continue in full force and effect for an additional five (5) years from and after the responding party’s notice of appointment commencement of the second arbitratorRenewal Term, appoint a third arbitrator. If the two initial arbitrators are unable timely with an annual Base Rent equal to agree on the third arbitrator, then either may, on behalf of both, request such appointment by the Boston office of JAMS, Inc., or its successor, or, on its failure, refusal or inability to act, by a court of competent jurisdiction. The Fair Market Rental Value of the Premises for the Extended Term shall be determined by the method commonly known as Baseball Arbitration, whereby Landlord’s selected arbitrator and Tenant’s selected arbitrator shall each set forth its respective determination of the Fair Market Rental Value Value, and with terms, provisions and conditions comparable to this Lease; (c) assuming that Tenant is then, and will remain for the balance of such assumed additional five (5)-year term, of the Premises, and same financial creditworthiness as it is on the third arbitrator must select one or day which is twelve (12) months prior to the other (it being understood that the third arbitrator shall be expressly prohibited from selecting a compromise figure). Landlord’s selected arbitrator and Tenant’s selected arbitrator shall deliver their determinations commencement of the Fair Market Rental Value subject Renewal Term; (d) based on renewal rental rates for other properties comparable in quality, size, condition, age and location to the Premises; and (e) based on the permitted use of the Premises to the third arbitrator within five (5) Business Days of the appointment of the third arbitrator and the third arbitrator shall render his or her decision hereunder Initially, within ten (10) days after Landlord's receipt of both of the other two determinations of Tenant's Renewal Inquiry Notice under Section 17.2 hereof, Landlord and Tenant will meet to negotiate, in good faith, the Fair Market Rental Value of the Premises. The If Landlord and Tenant are unable to agree on the Fair Market Rental Value within ten (10) days after Landlord's receipt of Tenant's Renewal Inquiry Notice, then the determination thereof will be determined by appraisal pursuant to this Section 17.3. If Landlord and Tenant are unable to agree on the Fair Market Rental Value within the aforesaid ten (10)-day period, then within five (5) days thereafter, each of Landlord and Tenant will designate an independent M.A.I. appraiser and will notify each other in writing of such designation. Within the next five (5) days, such appraisers will designate a third arbitrator’s decision shall independent M.A.I. appraiser and will notify Landlord and Tenant in writing of such designation. After their appointment, all three such appraisers will be binding on directed to determine, independently, the Fair Market Rental Value of the Premises in accordance with this Section 17.3. Within twenty (20) days after the designation of the third appraiser, each of the three appraisers will submit its written determination of the Fair Market Rental Value, in accordance with this Section 17.3, to both Landlord and Tenant. The third arbitrator shall If the Fair Market Rental Value determined by any two or all three of such appraisers is identical, then the Fair Market Rental Value for purposes of the Renewal Term will be a commercial real estate broker who such identical amount. If the Fair Market Rental Value as determined by each such appraiser is independent different from the parties and who has not worked for either party or their affiliates in the prior others, but two of such determinations are within five percent (5%) years of each other, then the Fair Market Rental Value will be arithmetic mean of such two amounts. In all other cases, the highest and who has at least ten (10) years’ experience in Comparable Buildings. Each party shall pay the fees lowest of its own arbitratorsuch determinations will be disregarded, and the fees of Fair Market Rental Value will be equal to the middle (or remaining) determination. Landlord will pay all costs associated with the appraiser designated by Landlord; Tenant will pay all costs associated with the appraiser designated by Tenant; and Landlord and Tenant will share equally all costs associated with the third arbitrator shall appraiser. All such appraisers will be shared equally by the parties. In the event Tenant initiates the aforesaid arbitration process reputable, independent M.A.I. real estate appraisers, each of whom will be knowledgeable and as of the commencement of the Extended Term the amount of the Basic Rent for the Extended Term has not been determined, Tenant shall pay the amount determined by Landlord for the Premises and when experienced in the determination has actually been madeof office facility rental rates in the DuPage County, an appropriate retroactive adjustment shall be made as of the commencement of the Extended Term if necessary. In the event that such determination shall result in an overpayment by Tenant of any Basic Rent, such overpayment shall be paid by Landlord to Tenant promptly after such determination has been made, and if such determination shall result in an underpayment by Tenant of any Basic Rent, Tenant shall pay any such amounts to Landlord promptly following such determinationIllinois area.

Determination of Fair Market Rental Value. Promptly Within thirty (30) days after receiving receipt of Tenant’s Extension Notice pursuant to Section 16.1 aboveExercise Notice, Landlord shall provide notify Tenant with Landlord’s good faith estimate of the Fair Market Rental Value (as defined in Section 16.3 below) of the Premises for the upcoming Extended Term, but in no event shall Landlord be required to deliver such estimate sooner than eleven (11) months prior to the expiration of the Term then in effect. If Tenant is unwilling to accept Landlord’s estimate of the Fair Market Rental Value for the Premises, as set forth in determined below, for determining monthly Base Rent during the ensuing Extension Term; provided, however, if Tenant’s Exercise Notice is given more than nineteen (19) months before the Expiration Date, then Landlord may, at Landlord’s sole discretion, defer giving its estimate of Fair Market Rental Value until any date which is at least eighteen (18) months before the Expiration Date. Within thirty (30) days after receipt of such notice referred from Landlord, Tenant shall notify Landlord in writing that it: (i) agrees with such rental rate; (ii) disagrees with such rental rate; or (iii) withdraws it’s Exercise Notice, provided, however, Tenant shall only have the right to withdraw its Exercise Notice after the earlier of (A) the date which is thirty (30) days after the date of Landlord’s estimate of the Fair Market Rental Value, or (B) the date which is sixteen (16) months prior to the then applicable Expiration Date (which means that Tenant will have no right to revoke Tenant’s Exercise Notice if Tenant’s Exercise Notice is not given more than seventeen (17) months prior to the then applicable Expiration Date). Tenant’s failure to respond within such thirty (30) day period shall constitute Tenant’s disagreement with such rental rate. If Tenant disagrees with Landlord’s estimate of Fair Market Rental Value for the Premises (either by timely written notice to Landlord or by failing to respond within the thirty (30) day period described above), then the parties shall meet and endeavor to agree within fifteen (15) days after (i) Landlord Tenant give notice that it disagrees with the rental rate or (ii) the expiration of the thirty (30) day period described above if Tenant fails to respond. If the parties cannot agree upon the Fair Market Rental Value within said fifteen (15) day period, then the parties shall submit the matter to binding appraisal in accordance with the following procedure except that in any event neither party shall be obligated to start such procedure sooner than eighteen (18) months before the expiration of the Term. Within fifteen (15) days of the conclusion of the period during which the two parties fail to agree (but not sooner than eighteen (18) months before the expiration of the Term), the parties shall either (i) jointly appoint an appraiser for this purpose, in which case that single appraiser shall determine Fair Market Rental Value and the parties are unable determination of that appraiser shall be binding and conclusive upon the parties; or (ii) failing this joint action, each separately designate a disinterested appraiser. No person shall be appointed or designated an appraiser unless such person has at least five (5) years experience immediately prior to reach agreement thereon the date in question in either (a) appraising major commercial property or (b) leasing commercial office space in Santa Xxxxx County and is a member of a recognized society of real estate appraisers or brokers. If within thirty (30) days after the delivery of such notice by Landlordappointment, then either party may submit the determination of two appraisers reach agreement on the Fair Market Rental Value of for the Premises to arbitration by giving notice to Premises, that value shall be binding and conclusive upon the other party naming the initiating party’s arbitrator within ten (10) days after the expiration of such thirty (30) day period. Within fifteen (15) days after receiving a notice of initiation of arbitration, the responding party shall appoint its own arbitrator by notifying the initiating party of the responding party’s arbitratorparties. If the second arbitrator shall two appraisers thus appointed cannot have been so appointed within such fifteen (15) day period, reach agreement on the Fair Market Rental Value of for the Premises within thirty (30) days after their appointment, then the appraisers thus appointed shall be determined by the initiating party’s arbitratorappoint a third disinterested appraiser having like qualifications within five (5) days. If the second arbitrator shall have been so appointed, the two arbitrators thus appointed shall, within fifteen thirty (1530) days after the responding party’s notice of appointment of the second arbitrator, appoint third appraiser a third arbitrator. If majority of the two initial arbitrators are unable timely to appraisers agree on the third arbitrator, then either may, on behalf of both, request such appointment by the Boston office of JAMS, Inc., or its successor, or, on its failure, refusal or inability to act, by a court of competent jurisdiction. The Fair Market Rental Value of the Premises for the Extended Term shall be determined by the method commonly known as Baseball Arbitration, whereby Landlord’s selected arbitrator and Tenant’s selected arbitrator shall each set forth its respective determination of the Fair Market Rental Value of the Premises, that value shall be binding and conclusive upon the parties. If within thirty (30) days after the appointment of the third arbitrator must select one or appraiser a majority of the other (it being understood that the third arbitrator shall be expressly prohibited from selecting a compromise figure). Landlord’s selected arbitrator and Tenant’s selected arbitrator shall deliver their determinations of appraisers cannot reach agreement on the Fair Market Rental Value for the Premises, then the three appraisers shall each simultaneously submit their independent appraisal to the parties, the appraisal farthest from the median of the three appraisals shall be disregarded, and the mean average of the remaining two appraisals shall be deemed to be the Fair Market Rental Value for the Premises to and shall be binding and conclusive upon the parties. Each party shall pay the fees and expenses of the appraiser appointed by it and shall share equally the fees and expenses of the third arbitrator within five (5) Business Days of appraiser. If the two appraisers appointed by the parties cannot agree on the appointment of the third arbitrator appraiser, they or either of them shall give notice of such failure to agree to the parties and if the parties fail to agree upon the selection of such third arbitrator shall render his or her decision appraiser within ten (10) days after receipt of both the appraisers appointed by the parties give such notice, then either of the parties, upon notice to the other two determinations party, may request such appointment by the American Arbitration Association or, on it failure, refusal or inability to act, may apply for such appointment to the presiding judge of the Fair Market Rental Value Superior Court of the Premises. The third arbitrator’s decision shall be binding on both Landlord and Tenant. The third arbitrator shall be a commercial real estate broker who is independent from the parties and who has not worked for either party or their affiliates in the prior five (5) years and who has at least ten (10) years’ experience in Comparable Buildings. Each party shall pay the fees of its own arbitratorSanta Xxxxx County, and the fees of the third arbitrator shall be shared equally by the parties. In the event Tenant initiates the aforesaid arbitration process and as of the commencement of the Extended Term the amount of the Basic Rent for the Extended Term has not been determined, Tenant shall pay the amount determined by Landlord for the Premises and when the determination has actually been made, an appropriate retroactive adjustment shall be made as of the commencement of the Extended Term if necessary. In the event that such determination shall result in an overpayment by Tenant of any Basic Rent, such overpayment shall be paid by Landlord to Tenant promptly after such determination has been made, and if such determination shall result in an underpayment by Tenant of any Basic Rent, Tenant shall pay any such amounts to Landlord promptly following such determinationCalifornia.