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(4) Each party shall pay the fees and costs of its arbitrator, and the parties shall share equally the fees and costs of the third arbitrator. (5) In the event of a failure, refusal, or inability of any arbitrator to act, his or her successor shall be appointed by him or her, but in the case of the third arbitrator, his or her successor shall be appointed in the same manner as that set forth herein with respect to the appointment of the original third arbitrator. The third arbitrator shall make its determination within thirty (30) business days after the appointment of the third arbitrator. Any decision in which the arbitrator appointed by Landlord and the arbitrator appointed by Tenant concur shall be binding and conclusive upon the parties, except that such arbitrators shall not attempt by themselves to mutually ascertain the Fair Market Rental and any such determination in a manner other than that provided for in Section 3.4(B)(ii)(2) and (3) hereof shall not be binding on the parties. (6) The arbitrators shall have the right to consult experts and competent authorities for factual information or evidence pertaining to a determination of Fair Market Rental, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The arbitrators shall render the decision and award in writing with counterpart copies to each party. The arbitrators shall have no power to modify the provisions of this Lease. (iii) The provisions of this Section 3.4 to the contrary notwithstanding, in no event shall the Percentage Rent rate for any Extension Term be less than five percent (5 %) or greater than seven percent (7 %). LEASE BETWEEN CITY OF SAN LEANDRO AND SAN FRANCISCO BAY CONFERENCE RESORT PAGE 21 2574001\313983.8