Carbonite 2011 Annual Report Download - page 111

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Confidential Treatment Requested by Carbonite, Inc.
1.8.2 Arbitration Procedure. Within ten (10) business days after Tenant’s delivery to Landlord of Tenant’s Datacenter Expansion Exercise
Notice, pursuant to which Tenant elects to have Base Rent determined pursuant to Fair Market Rent Arbitration (the
“ Appointment Deadline ”), each
party shall give written notice to the other setting forth the name and address of the Disinterested Expert selected by such party, who has agreed to act in
such capacity, to determine the Prevailing Base Rent for the Datacenter Expansion Area. If either party shall fail to select a Disinterested Expert within
the required time period, then the Disinterested Expert selected by the other party shall determine the Prevailing Base Rent. Each Disinterested Expert
shall thereupon independently make its determination of the Prevailing Base Rent within thirty calendar (30) days after the Appointment Deadline (each,
an “ Initial Expert Determination ”). If either Disinterested Expert shall fail to make an Initial Expert Determination of the Prevailing Base Rent
within thirty (30) days after the Appointment Deadline, then the Initial Expert Determination of the other Disinterested Expert (to the extent that such
Disinterested Expert makes such Initial Expert Determination within such thirty (30) day period) shall be deemed the Prevailing Base Rent. If the two
(2) Disinterested Experts’
Initial Expert Determination are not the same, but the higher of such two (2) values is not more than [***] percent ([***]%) of
the lower of such values, then the Prevailing Base Rent shall be deemed to be the average of the two (2) values. If, however, the higher of such two
(2) values is more than [***] percent ([***]%) of the lower of such values, then the two (2) Disinterested Experts shall jointly appoint a third (3
) Disinterested Expert (the “ 3 Expert ”) within ten (10) days after the second (2nd) of the two (2) Initial Expert Determinations has been rendered
and delivered to the other party. The 3 Expert shall independently choose which of the Initial Expert Determinations is the more accurate with regard
to Prevailing Base Rent, and the Initial Expert Determination chosen by the 3
Expert shall be deemed to be the Prevailing Base Rent for the Datacenter
Expansion Area. The 3 Expert shall only choose from between the Initial Expert Determinations provided by each of the other Disinterested Experts
and shall not be afforded the opportunity to render an independent Initial Expert Determination. For the purposes hereof, “ Disinterested Expert ” shall
mean a broker who has been regularly engaged in the business of datacenter leasing in the Market Area for at least the five (5) years immediately
preceding such person’s appointment hereunder. Each party shall pay for the cost of its Disinterested Expert and one-half of the cost of any 3
Expert. If
the Base Rent for the Datacenter Expansion Area shall not have been determined prior to the Commencement Date with respect to such Datacenter
Expansion Area, then Tenant shall commence to pay Base Rent with respect to such Datacenter Expansion Area based upon Landlord’s initial
determination of the Prevailing Base Rent, and after such Base Rent is determined by arbitration, then either (i)Tenant shall, within thirty (30) calendar
days after billing, pay to Landlord any underpayment of Base Rent, or (ii) Landlord shall credit to Tenant’s account any overpayment of Base Rent.
1.9 Licenses and Permits . Landlord shall, at Landlord’s cost, obtain all licenses, approvals, permits and authorizations required by applicable
federal, state, and local laws and regulations that Landlord is required to have in order to perform the Landlord’s Essential Services and to perform
Landlord’s Installations. Landlord shall provide Tenant with all such licenses, approvals, permits and authorizations within ten (10) business days after
Landlord’s receipt of Tenant’s request therefore.
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11
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[***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential Treatment has been requested
with respect to the omitted portions.
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