G.                                     Landlord and Tenant, for their mutual benefit, wish to revise certain covenants and provisions of the Lease.

 

NOW, THEREFORE, In consideration of the covenants and provisions contained herein, and other good and valuable consideration, the sufficiency of which Landlord and Tenant hereby., acknowledge, Landlord and Tenant agree:

 

1.                                       Confirmation of Defined Terms.   Unless modified herein, all terms previously defined and capitalized in the Lease shall hold the same meaning for the purposes of this Third Amendment.

 

2.                                       Decrease in Size of Original Premises.

 

2.1                                Construction Area/Suite 220 .   On the later of March15, 2003 or the date that possession of Suite 220 (Construction Area) is delivered by Tenant to Landlord (the “Construction Area Surrender Date” ) Tenant agrees to relocate Tenant’s furniture, fixtures equipment and personal property from the Construction Area to the Suite 200 Portion and to tender possession of the Construction Area to Landlord, to accommodate Landlord’s construction of demising wall separating the Suite 200 Portion from the Construction Area and Landlord’s construction of certain other improvements in the Construction Area (Suite 220), pursuant to Exhibit B attached hereto and made a part hereof.  Landlord and Tenant agree to confirm the Construction Area Surrender Date by the execution a confirmation letter agreement to that effect.

 

2.2                                Surrender of Suite GL-15A/GL-9.   Tenant shall vacate Suite GL-15A/GL-9 on the Construction Area Surrender Date and shall tender possession thereof to Landlord in good condition and repair (reasonable wear and tear excepted), broom-clean, free of Tenant’s furniture , fixtures, equipment, personal property and debris.  If Tenant vacates GL-15A/GL-9 , but leaves any property, trash or debris therein, or if there is any damage to GL-15A/GL-9  beyond reasonable wear and tear, then the costs incurred by Landlord in the removal or repair of such items, as the case may be, shall be billed directly to Tenant as Additional Rent.

 

2.3                                Rentable Area of the Suite 200 Portion.   Effective on the Construction Area Surrender Date: (i) the Rentable Area of the Original Premises shall be decreased from approximately 27,043 square feet to approximately 16, 500 square feet; and (ii) the definition of the Original Premises shall be revised to exclude the Construction Area and Suite GL-15A/GL-9, and wherever in the Lease the word Premises is found, it shall thereafter refer to the suite 200 Portion.  The Base Rent and Tenant’s Percentage Share of increases of Property Taxes and Operating Expenses for the Suite 200 Portion shall be revised subject to the terms of Paragraphs 5. 6 and 7 of this Third Amendment.

 

2.4                                Surrender of the Suite 200 Portion.  In consideration of Landlord’s substantial completion of the Improvements for Suite 220 and Tenant’s obligation to take possession of Suite 220. Tenant shall vacate the Suite 200 Portion on or before the Suite 220 Effective Date (as defined iii Paragraph 3.2 below) and shall tender possession thereof to Landlord in good condition and repair (reasonable wear and tear excepted), broom-clean, free of Tenant’s furniture, fixtures_ equipment, personal property and debris. If Tenant vacates the Suite 200 Portion, but leaves any property, trash or debris therein, or if there is any damage to the Suite 200 Portion beyond reasonable wear and tear, then the costs incurred by Landlord in the removal or repair of such items, as the case maybe, shall be billed directly to Tenant as Additional Rent.

 

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2.5                                Re-measurement of Suite 220.

 

Since Suite 220 is not yet fully demised, once the exact location of the demising walls is established and Landlord substantially completes the Improvements as set forth in Exhibit B attached hereto and made a part hereof, Landlord and Tenant agree that a recalculation of the Rentable Area of the Suite 220 shall be made by Stevenson Systems, Inc., an independent planning firm, in accordance with the June, 1996 standards set forth by BOMA. Such determination shall be determinative unless patently unreasonable.

 

Landlord and Tenant further agree that the Rentable Area of Suite 220 shell be calculated on the basis of 1.2277 times the estimated Usable Area, regardless of what actual common areas of the Building may be, or whether they may be more or less than 22.77% of the total estimated Usable Area of the Building, and is provided solely to give a general basis for comparison and pricing of this space in relation to other spaces in the market area.

 

Landlord and Tenant further agree that once the Rentable Area and Usable Area of Suite 220 has been determined as specified hereinabove, even if later either party alleges that the actual Rentable Area or Usable Area of Suite 229 is more or less than the figures stated herein; and whether or not such figures are inaccurate, for all purposes of the Lease. The Rentable and Usable figures agreed upon shall be conclusively deemed to be the Rentable Area or Usable Area of Suite 220 as the case may be.

 

If the Rentable Area of Suite 220 is increased or decreased pursuant to this Paragraph 2.5, then effective as of the Suite 220 Effective Date, the initial Base Monthly Rent payable for Suite 220 shall be recalculated based on $3.30 per square foot of Rentable Ares, per month.

 

If the Rentable Area of Suite 220 is increased or decreased, pursuant to the provisions of this Paragraph 2.5, then the increases in Base Rent shall be appropriately increased or decreased to result in an increase in said Base Rent of three percent (3%) per annum, cumulative over the Suite 220 Term.

 

If the Usable Area of Suite 220 is increased or decreased pursuant to this Paragraph 2.3, then Tenant’s Percentage Share of Property Taxes and Operating Expenses shall be increased or decreased equally, by dividing the newly calculated Usable Area of Suite 220 by the Usable Area of the Building (approximately 265,105 square feet).

 

Notwithstanding anything to the contrary contained herein, if the Usable Area of Suite 220 is increased or decreased, pursuant to the provisions of this Paragraph 2.5 then the total number of parking permits to which Tenant shall be entitled shall be proportionately adjusted subject the Paragraph 7 below.

 

3.                                       Lease Term.

 

3.1                                Original Premises Acceleration of Original Expiration Date. The Original Expiration Date is hereby accelerated so that the Lease the Original Premises shall expire on the “Revised Expiration Date” which is defined as one (1)day prior to the Suite 220 Effective Date.

 

3.2                                Suite 220. The effective date of Tenant’s lease of Suite 220 shall be the first Monday after Landlord substantially completes the Emplacements contemplated tinder Exhibit B attached hereto and made a part hereof (the “Suite 220 Effective Date” ), and the term of

 

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Tenant’s lease of Suite 220 shall end unless sooner terminated as otherwise provided herein, at midnight on the last calendar day of the calendar month which occurs seven (7) years after the Suite 220. Effective Date (the “Suite 220 Term”). The anticipated Suite 220 Effective Date is June 15, 2003. Landlord and Tenant shall promptly execute an amendment to this Lease substantially in the form attached hereto as Exhibit C (the “Fourth Amendment”), confirming the revised Usable Area of Suite 220 per Paragraph 2.5 above, and confirming (i) the finalized Suite 220 Effective Date, (ii) the Suite 220 Term, and (iii) the actual dates upon which the changes in the monthly Base Rent payable for Suite 220 specified in Paragraph 5.2 below shall occur.

 

4.                                       Tenant Improvements for Suite 220.

 

4.1                                Tenant agrees to relocate Tenant’s furniture, fixtures, equipment and personal property from Suite 220 (i.e., the Construction Area), to accommodate Landlord’s construction of a demising wall separating the Suite 200 Portion from Suite 220 and Landlord’s construction of certain other improvements in Suite 220, pursuant to Exhibit B attached hereto and made a part hereof.

 

4.2                                For purposes of establishing the Suite 220 Effective Date, substantial completion shall be defined as that point in the construction process when (i) all of the structural, mechanical, plumbing and electrical work specified herein has been performed; (ii) the paint, carpet, hard flooring materials, base moldings, and millwork, if any, have been installed, and a majority of the other finish work specified in Tenant’s plans has been completed in such a manner that Tenant could. If it look possession of Suite 220, enjoy beneficial occupancy thereof, and (iii) a certificate of occupancy for Suite 220 has been issued by the governmental agency having authority therefore;

 

Tenant’s taking possession of Suite 220 and commencing Tenant’s normal business operations in Suite 220 shall be deemed conclusive evidence that, as of the Suite 220 Effective Date:

 

(a)                                  Landlord has substantially completed the Improvements contemplated hereunder, except for any minor punchlist items to be completed and items specified under Paragraph 7 of Exhibit B; and

 

(b)                                 Suite 220 is its good order and repair except for any items identified pursuant to Paragraph 7 of Exhibit B.

 

4.3                                Provided that Tenant does not delay Landlord’s completion of the improvements (as such terms are defined in Exhibit B). Tenant may enter Suite 220 up to three (3) weeks prior to the anticipated Suite 220 Effective Date, solely for the purpose of installing Tenant’s furniture, fixtures and equipment, computer and telephone cabling. Said early entry shall be subject to Tenant complying with alt of the provisions and covenants contained herein, except that Tenant shall not be obligated to pay the Base Rent or Additional Rent that Tenant is required to pay hereunder for Suite 220 until the Suite 220 Effective Date. If Tenant’s early entry does so delay completion of the Improvements, then the Suite 220 Effective Date shall be deemed to be the date that the Improvements would have been substantially completed had no such delay occurred.

 

4.4                                If for any reason (including Landlord’s inability to complete the improvements hereunder[, Landlord is unable to substantially complete the Improvements to Suite 220 prior to the anticipated Suite 220 Effective Date (except to the extent of Tenant delays as

 

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defined in Exhibit B), the provisions of this Third Amendment shall not be void or voidable, nor shall Landlord he liable to Tenant for any damage resulting from Landlord’s inability to substantially complete the Improvements. However, Tenant shall not be obligated to pay the Base Rent or Additional Rent that Tenant is required to pay pursuant to Paragraph 5 below until the Suite 220 Effective Date . Except for such delay in the commencement of Rent, Landlord’s failure to give possession on the anticipated Suite 220 Effective Date shall in no way affect Tenant’s obligations hereunder,

 

If for any reason, (except to the extent of Tenant delays as defined in Exhibit B), Landlord is unable to deliver possession of Suite 220 within one hundred and twenty (120) days after the Construction Surrender Date (the “Outside Date”), the provisions of this Third Amendment shall not be void or voidable, nor shall Landlord be liable to Tenant for any damage resulting from Landlord’s inability to tender possession of Suite 220; provided however, (i) Tenant may continue to occupy the Suite 200 Portion, after the Outside Date, and (ii) Tenant’s Base Rent and Additional Rent that Tenant is required to pay hereunder for the Suite 200 Portion alter the Outside Date, shall be the agreed upon sum of $39.600 per month until Landlord’s substantial completion of the Improvements in Suite 220. Except for such reduction in the Base Rent for the Suite 200 Portion as set forth above, Landlord’s failure to substantially complete the Improvements in Suite 220 prior to the Outside Date shall in no way affect Tenant’s obligations hereunder.

 

lf, due to “Force Majeure” (as defined in Lease Section 27.04), Landlord is unable to tender possession of Suite 220 within one hundred fifty (150) days after the anticipated Suite 220 Effective Date, then this Third Amendment, and the rights and obligations of Landlord and Tenant hereunder, shall be deemed null and void upon ten (10) days written notice to either party, without further liability by either party to the other, and without further documentation being required.

 

5.                                       Revision to Base Rent.

 

5.1                                The Suite 200 Portion.

 

Commencing on the Construction Area Surrender Date and continuing until the Suite 220 Effective Date, the Base Rent payable by Tenant for the Suite 200 Portion shall he $54,540.00 per month.

 

5.2                                Suite 220.  Subject to adjustment pursuant to Paragraph 2.5 above:

 

(a)                                  commencing on the Suite 220 Effective Date and continuing through the last calendar day of the twelfth (I2”) month of the Suite 220 Term, the Base Rent payable by Tenant for Suite 220 shall be $39,600 per month;

 

(b)                                 commencing the first calendar day of the thirteenth (13th) calendar month of the Suite 220 Term, and continuing through the last calendar day of the twenty-fourth (24th) calendar month of the Suite 220 Term, the Base Rent payable by Tenant for Suite 220 shall increase from 539,600.00 per month to $40,788.00 per month;

 

(c)                                  commencing the first calendar day of the twenty-fifth (25th) calendar month of the Suite 220 Term, and continuing through the last calendar day of the thirty-

 

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sixth (36’) calendar month of the Suite 220 Term, the Base Rent payable by Tenant for Suite 220 shall increase from $40,788.00 per month to $42,011,64 per month;

 

(d)                                 commencing the first calendar day of the thirty-seventh (37’h) calendar month of the Suite 220 Term, and continuing through the last calendar day of the Forty-eighth (48th) calendar month of the Suite 220 Term, the Base Rent payable by Tenant for Suite 220 shall increase from $42,011.64 per month to $43,271.99 per month;

 

(e)                                  commencing the first calendar day of the forty-ninth (4915) calendar month of the Suite 220 Term, and continuing through the last calendar day of the sixtieth (6001) calendar month of the Suite 220 Term, the Base Rent payable by Tenant for Suite 220 shall increase from 543.271.99 per month to $44,570.13 per month;

 

(f)                                    commencing the first calendar day of the sixty-first (61’ ) calendar month of the Suite 220 Term. and continuing through the last calendar day of the seventy-second (72nd) calendar month of the Suite 220 Term, the Base Rent payable by Tenant for Suite 220 shall increase from 544,570.15 per month to $45,907.25 per month; and

 

(g)                                 commencing the first calendar day of the seventy-third (73rd) calendar month of the Suite 220 Term, and continuing throughout the remainder of the Suite 220 Term, the Base Rent payable by Tenant for Suite 220 shall increase from 545,907.25 per month to 547,284.47 per month. Landlord and Tenant shall, in the Fourth Amendment, confirm the actual dates upon which the changes in Base Rent specified above shall occur.

 

5.3                                Suite 220 Rent Abatement.

 

Notwithstanding anything to the contrary in the Lease, Tenant shall be entitled to a rent abatement for Suite 220 of fifty percent(50%) of the monthly Base Rent due for the second (2’ 1, third (3’1), thirteenth (13th) and fourteenth (14”) months of the Suite 220 Term Except as otherwise stated, the entire monthly Base Rent for Suite 220 shall he due and payable, in advance, pursuant to Paragraph 5.2 above.

 

6.                                       Base Year.

 

6.1                                Suite 200 Portion. Effective as of the Construction Area Surrender Date, the Base Year, with respect to the Suite 200 Portion shall be changed to calendar year 2003.

 

6.2                                Suite 220. Effective as of the Suite 220 Effective Date, the Base Year, with respect the Suite 220 shall be changed to calendar year 2003.

 

7.                                       Tenant’s Percentage Share. Subject to adjustment pursuant to Paragraph 2.3 above, as of the Suite 220 Effective Date, Tenant’s Percentage Share for Suite 220 shall be approximately three point six- nine percent (3.69%).

 

8.                                       Parking.   As of the Suite 220 Effective Date and throughout the Suite 220 Term, and Tenant shall have the obligation to purchase and assign to its employees twenty-nine (29) unreserved parking permits, and two (2) reserved parking permits for a total of thirty-one (31) permits

 

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(“Tenant’s Parking Allotment”); provided further that throughout the Suite 220 Tern, Tenant shall be entitled to obtain one (1) unreserved parking permit and two (2) reserved parking permits out of “tenant’s Parking Allotment at no charge. Except as otherwise permitted by Landlord’s management tiger!! in its reasonable discretion, and based on the availability thereof, in no event shall Tenant he entitled to purchase more than Tenant’s Parking Allotment. If additional parking permits are available on a month-to-month basis, which determination shall be in the sole discretion of Landlord’s parking agent, Tenant shall be permitted to purchase one or more of said permits on a first-come, first-served basis,

 

The initial rates to be paid by Tenant for such permits shall he: S120.0(1 per single unreserved permit, per month for garage parking levels “P3” and “P4”; 5140.00 per single reserved permit, per month for garage parking level “P2”; $175.00 per single reserved permit. per month for garage parking level “Pl”; $175.00 per VIP Valet permit, per month; and $220.00 per single reserved permit, per month for garage parking level “PI”.

 

Said parking permits shall allow Tenant to park in the Building parking facility at the prevailing monthly parking rate then in effect, which rate may be thereafter changed from time to time, in Landlord’s sole discretion. Landlord shall retain reasonable discretion to designate the location of each parking space, and whether it shall be assigned, or unassigned, unless specifically agreed to otherwise in writing between Landlord and Tenant.

 

Guests and invitees of Tenant shall have the right to use, in common with guests and invitees of other tenants of the Building, the transient parking facilities of the Building at the then-posted parking rates and charges, or at such other rate or rates and charges as may be agreed upon from time to time between Landlord and Tenant in writing, Such rate(s) or charges may be changed by Landlord from time to time in Landlord’s sole discretion, and shall include, without limitation, one and all fees or taxes relating to parking assessed to Landlord for such parking facilities.

 

Tenant or Tenant’s agents, clients, contractors, directors, employees, invitees, licensees, officers, partners or shareholders continued use of said transient, as well as monthly parking, shall be contingent upon Tenant and Tenant’s agents, clients, contractors. directors, employees. invitees, licensees, officers, partners or shareholders continued compliance with the reasonable and non-discriminatory rules and regulations adopted by Landlord, which rules and regulations may change at any time or from time to time during the Term hereof in Landlord’s sole discretion.

 

9.                                       Security Deposit. Concurrent with Tenant’s execution and tendering of this Third Amendment Landlord, Tenant shall deposit the sum of $47,284.47 (the “Security Deposit”), which amount Tenant shall thereafter at all times maintain on deposit with Landlord as security for Tenant’s full and faithful observance and performance of its obligations under this Lease (expressly including, without limitation, the payment as and when due of the Base Rent, Additional Rent and any other sums or damages payable by Tenant hereunder and the payment of any and all other damages for which Tenant shall be liable by reason of any act or omission contrary to any of stud covenants or agreements). Landlord shall have the right to commingle the Security Deposit with its general assets and shall not be obligated to pay Tenant interest thereon.

 

If at any time Tenant defaults in the performance of any of its obligations under this Lease, after the expiration of notice and the opportunity to cure, then, Landlord may:

 

(a)                                   apply as much of the Security Deposit as may he necessary to cure Tenant’s non-payment of the Base Rent, Additional Rent and/or other sums or damages due from Tenant: and/or:

 

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(b)                                  if Tenant is in default of any of the covenants or agreements of this Lease; apply so much of the Security Deposit as may be necessary to reimburse all expenses incurred by Landlord in curing such default; or

 

(c)                                   if the Security Deposit is insufficient to pay the sums specified in Paragraph 9 (a) or {h), elect to apply the entire Security Deposit in partial payment thereof, and proceed against Tenant pursuant to the provisions of Article 15 herein.

 

If, as a result of Landlord’s application of any portion or all of the Security Deposit. the amount held by Landlord declines to less than $47,284.47, Tenant shall, within ten (10) days after demand therefor, deposit with Landlord additional cash sufficient to bring the then-existing balance held as the Security Deposit to the amount specified hereinabove Tenant’s failure to deposit said amount shall constitute a material breach of this Lease.

 

At the expiration or earlier termination of this Lease, Landlord shall deduct from the Security Deposit being held on behalf of Tenant any unpaid sums, costs, expenses or damages payable by Tenant pursuant to the provisions of this Lease; and/or any costs required to cure Tenant’s default or performance of any other covenant or agreement of this Lease, and shall, within thirty (30) days after the expiration or earlier termination of this Lease, return to Tenant, without interest. all or such part of the Security Deposit as then remains on deposit with Landlord.

 

10.                                Modification to Definitions.

 

10.1                         Business Hours. As of the Suite 220 Effective Date, Section 1.1 1 shall be deleted and the following inserted in place thereof

 

“The term ‘Business Hours’ shall mean 8:00 A.M. to 6;00 P.M., Monday through Friday, and 9:00 A.M. to 1-.00 P.M. on Saturday, any one or more Holiday(s) excepted. ‘Holidays’ are defined as any federally-recognized holiday and any other holiday specified herein, which are: New Years Day, Presidents’ Day, Memorial Day, the 4th of July, Labor Day, Thanksgiving Day, the day after Thanksgiving, and Christmas Day (each individually a ‘Holiday’).”

 

10.2                         Landlord’s Address for Notices. As of the full execution of this Third Amendment, Section 1.12 of the Lease shall be deleted and the following inserted in place thereof:

 

“The term Landlord’s Address for Notices shall mean:

 

BRIGHTON ENTPEPRISES, LLC,
c/o Douglas, Emmett and Company
Director of Property Management
808 Wilshire Boulevard, Suite 200
Santa Monica, California 90401”

 

11.                                Modification to Article 7 (Utilities and Services).

 

11.1                         Access.   As of the Suite 220 Effective Date, Section 7.01 (F) is inserted into the Lease as follows:

 

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“Subject to Force Majeure, Landlord shall provide Tenant with (i) access to and use of the parking facilities for persons holding valid parking permits, and (ii) access to and use of the elevators and Premises, twenty-four (24) hours per day, seven days per week”

 

11.2                         Security.   As of the Suite 220 Effective Date, Section 7.01 (G) is inserted into the Lease as follows:

 

“Tenant acknowledges that Landlord currently provides uniformed guard service to the Building on twenty-four (24) hours per day, seven (7) days per week basis, solely for the purposes of providing surveillance of, information and directional assistance to persons catering the Building.

 

Tenant acknowledges that such guard service shall not provide any measure of security or safety to the Building or the Premises, and that Tenant shall take such actions as it may deem necessary and reasonable to ensure the safety and security of Tenant’s property or person or the property or persons of Tenant’s agents, clients, contractors, directors, employees, invitees, licensees, officers, partners or shareholders. Tenant agrees and acknowledges that, except in the case of the gross negligence or willful misconduct of Landlord or its directors, employees, officers, partners or shareholders, Landlord shall not be liable to Tenant in any mariner whatsoever arising out of the failure of Landlord’s guard service to secure any person or property from harm,

 

Tenant agrees and acknowledges that Landlord, in Landlord’s reasonable discretion, shall have the option, but not the obligation to add, decrease, revise the hours or and/or change the level of services being provided by any guard company serving the Building. so long as the level of services so provided remains consistent with the level of services provided by landlords of comparable office projects in the Beverly Hills office markets. Tenant flintier agrees that Tenant shall not engage or hire any outside guard or security company without Landlord’s prior written consent, which shall be in Landlord’s sole discretion:.

 

12.                                Option to Extend the Suite 220 Term.

 

12.1                         Option to Extend Term. Provided Tenant is not in material default after the expiration of notice and the opportunity to cure on the date or at any time during the remainder of the Suite 220 Term after Tenant gives notice to Landlord of Tenant’s intent to exercise its rights pursuant to this Paragraph 12, Tenant is given the option to extend the term for an additional Five (5) year period (the “Second Extended Term’), commencing the next calendar day alter the expiration of the Suite 220 Term (the “Option”). The Option shall apply only to the entirety of the Premises, and Tenant shall have no right to exercise the Option as to only a portion of the Premises.

 

Tenant’s exercise of this Option is contingent upon Tenant giving written notice to Landlord (the “Option Notice”) of Tenant’s election to exercise its rights pursuant to this Option by Certified Mail, Return Receipt Requested, no more than twelve (12) and no less than nine (9) months prior to the Termination Date.

 

12.2                         Basic Monthly Rent Payable. The Basic Rent payable by Tenant during the Second Extended Term (“Option Rent”) shall be equal to the Fair Market Value of the Premises as of the commencement date of the Second Extended Term. The term “Fair Marker Value” shall be defined as the effective rent reasonably achievable by Landlord, and shall include but not he limited to, all economic benefits obtainable by Landlord, such as Basic

 

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Monthly Rent (including periodic adjustments), Additional Rent in the form of Operating Expense reimbursements, and any and all other monetary or non-monetary consideration that may be given in the market place to a non-renewal tenant, as is chargeable for a similar use of comparable space in the Beverly Hills area of the Premises. Said computation specifically be based on the Premises in its “as-is” condition,

 

Landlord and Tenant shall have thirty (30) days (the -Negotiation Period”) after Landlord receives the Option Notice in which to agree on the Fair Market Value. if Landlord and Tenant agree on the Fair Market Value during the Negotiation Period, they shall immediately execute an amendment to the Lease extending the Suite 220 Term and stating the Fair Market Value,

 

12.3                         Appraisers to Set Fixed Rent. If Landlord and Tenant are unable to agree on the lair Market Value during the Negotiation Period, then:

 

(a)                                  Landlord and Tenant, each at its own cost, shall select an independent real estate appraiser with at least ten (10) years full-time commercial appraisal experience in the area in which the Premises are located, and shall provide written notice to the other party of the identity and address of the appraiser so appointed. Landlord and Tenant shall make such selection within ten ( 10) days after the expiration of the Negotiation Period.

 

(b)                                 Within thirty (30) days of having been appointed to do so (the “Appraisal Period”), the two (2) appraisers so appointed shall meet and set the Fair Market Value for the Second Extended Term, in setting the Fair Market Value, the appraisers shall solely consider the use of the Premises for general office purposes.

 

12.4                         Failure by Appraisers to Set Fair Market Value. If the two (2) appointed appraisers arc unable to agree on the Fair Market Value within ten (10) days slier expiration of the Appraisal Period, they shall elect a third appraiser of like or better qualifications, and who has not previously acted in any capacity for either Landlord or Tenant. Landlord and Tenant shall each bear one half of the costs of the third appraiser’s fee.

 

Within thirty (30) days after the selection of the third appraiser (the “Second Appraisal Period” ) the Fair Market Value for the Second Extended Term shall be set by it majority of the appraisers now appointed.

 

If a majority of the appraisers are unable to set the Fair Market Value within the Second Appraisal Period, the three (3) appraisers shall individually render separate appraisals of the Fair Market Value, and their three (3) appraisals shall be added together, then divided by three (3); resulting in an average of the appraisals, which shall be the Fair Market Value during the Second Extended Tenn.

 

However, if the low appraisal or high appraisal vanes by more than ten percent 110%) from the middle appraisal, then one (1) or both shall be disregarded. If only one (1) appraisal is disregarded, the remaining two (2) appraisals shall be added together and their total divided by two (2), and the resulting average shall be the Fair Market Value. If both the low and high appraisal are disregarded, the middle appraisal shall be the Fair Market Value for the Premises during the Second Extended Term. The appraisers shall immediately notify Landlord and Tenant of the Fair Market Value so established, and

 

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