Common use of Determination of Appraised Value Clause in Contracts

Determination of Appraised Value. For purposes of this Article 7 and Section 6.05, the appraised value (“Appraised Value”) of the assets of the Company shall be determined by one (1) or more independent Qualified Appraisers. The Non-Defaulting Member shall select one (1) Qualified Appraiser and shall include such selection in the Default Notice. Within fifteen (15) days following the Effective Date of the Default Notice, the Defaulting Member shall either agree to the Qualified Appraiser selected by the Non-Defaulting Member or select a second (2nd) Qualified Appraiser and give written notice to the Non-Defaulting Member of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint a Qualified Appraiser within the time period specified and after the expiration of five (5) days following the Effective Date of written demand that a Qualified Appraiser be appointed, the Qualified Appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser shall proceed to make the appraisal as herein set forth, and the determination thereof shall be conclusive on all the Members. (1) The Qualified Appraiser or two (2) Qualified Appraisers, as the case may be, shall promptly fix a time for the completion of the appraisal, which shall not be later than thirty (30) days from the Effective Date of the appointment of the last Qualified Appraiser. (2) The Qualified Appraiser(s) shall determine the Appraised Value by determining the fair market value of the assets of the Company, such being the fairest price estimated in the terms of money which the Company could obtain if the assets of the Company were sold, for all cash, in the open market allowing a reasonable time to find a purchaser. (3) Upon submission of the appraisals setting forth the opinions as to the Appraised Value of the assets of the Company, the average of the two (2) appraisals shall constitute the Appraised Value of the assets of the Company for purposes of this Article 7.

Determination of Appraised Value. For Within thirty (30) days after the date of this Agreement, Appraiser shall deliver to Purchaser and Seller an appraisal report including its proposed determination of the Appraised Value (a “Proposed Appraised Value”). Within ten (10) Business Days after receipt of such appraisal report from Appraiser, Seller shall notify Purchaser in writing whether Seller accepts or rejects Appraiser’s Proposed Appraised Value. If Seller timely notifies Purchaser that Seller accepts Appraiser’s Proposed Appraised Value or fails to notify Purchaser of its acceptance or rejection of the Appraiser’s Proposed Appraised Value within such ten (10) Business Day period, then such Proposed Appraised Value shall be the Appraised Value for purposes of this Article 7 and Section 6.05Agreement. If Seller rejects Appraiser’s Proposed Appraised Value within such ten (10) Business Day period, the appraised value (“Appraised Value”) Seller shall be deemed to have elected to arbitrate as of the assets last day of the Company ten (10) Business Day period, and the determination of Appraised Value shall be determined by one (1) or more independent Qualified Appraisersarbitration in accordance with the following provisions of this paragraph. The Non-Defaulting Member Purchaser and Seller shall select one (1) Qualified Appraiser and shall include such selection in the Default Notice. Within fifteen (15) days following the Effective Date each appoint a local appraiser who is a member of the Default NoticeAmerican Institute of Real Estate Appraisers, the Defaulting Member shall either agree to the Qualified Appraiser selected by the Non-Defaulting Member or select if one is not available, a second (2nd) Qualified Appraiser and give written notice to the Non-Defaulting Member member of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint most nearly comparable organization, who has a Qualified Appraiser within the time period specified and after the expiration minimum of five (5) days following years’ experience in the Effective Date West Virginia commercial real estate market, is licensed by the State of written demand that West Virginia, and is not affiliated with either party or involved in an active transaction in which either party is also involved. Each party shall notify the other as to the name and address of the appraiser selected within five (5) Business Days after the arbitration election date. Each appraiser shall, within the next twenty (20) Business Days, notify both parties of their Proposed Appraised Value. If the two appraisers agree upon a Qualified Appraiser Proposed Appraised Value, such determination shall be appointedthe Appraised Value for purposes of this Agreement. If the appraisers fail to agree upon a Proposed Appraised Value within such twenty (20) Business Day period, the Qualified Appraiser duly appointed by two appraisers shall select a third appraiser, who shall satisfy the Member making such demand to appoint such Qualified Appraiser shall proceed to make the appraisal as herein same professional qualification requirements set forthforth above, and the appraisers will then notify Purchaser and Seller of such appraiser’s name, address and selection within five (5) Business Days following the failure to agree upon an Appraised Value. The third appraiser will select one or the other of the two Proposed Appraised Values submitted by the other two appraisers and will notify the parties and the appraisers within ten (10) Business Days of being selected. The determination thereof of the third appraiser shall be conclusive final and binding on all Purchaser and Seller and the Members. (1) Proposed Appraised Value so selected shall be the Appraised Value for purposes of this Agreement. The Qualified Appraiser or two (2) Qualified Appraisers, as the case may be, shall promptly fix a time for the completion costs of the appraisal, which Appraiser shall be shared equally by Purchaser and Seller. The cost of any other appraisers shall be borne by the Party whose appraisal is not be later than thirty (30) days from the Effective Date of the appointment of the last Qualified Appraiser. (2) The Qualified Appraiser(s) shall determine accepted as the Appraised Value by determining the fair market value of the assets of the Company, such being the fairest price estimated in the terms of money which the Company could obtain if the assets of the Company were sold, for all cash, in the open market allowing a reasonable time to find a purchaserthird appraiser. (3) Upon submission of the appraisals setting forth the opinions as to the Appraised Value of the assets of the Company, the average of the two (2) appraisals shall constitute the Appraised Value of the assets of the Company for purposes of this Article 7.

Determination of Appraised Value. For purposes of this Article 7 and Section 6.057, the appraised value (“Appraised Value”) of the assets of the Company shall be determined by one (1) or more independent Qualified Appraisers. The Non-Defaulting Member shall select one (1) Qualified Appraiser and shall include such selection in the Default Notice. Within fifteen (15) days following the Effective Date of the Default Notice, the Defaulting Member shall either agree to the Qualified Appraiser selected by the Non-Defaulting Member or select a second (2nd) Qualified Appraiser and give written notice to the Non-Defaulting Member of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint a Qualified Appraiser within the time period specified and after the expiration of five (5) days following the Effective Date of written demand that a Qualified Appraiser be appointed, the Qualified Appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser shall proceed to make the appraisal as herein set forth, and the determination thereof shall be conclusive on all the Members. (1) . The Qualified Appraiser or the two (2) Qualified Appraisers, as the case may be, shall promptly fix a time for the completion of the appraisal, which shall not be later than thirty (30) days from the Effective Date of the appointment of the last Qualified Appraiser. (2) . The Qualified Appraiser(s) shall determine the Appraised Value by determining the fair market value of the assets of the Company, such being the fairest price estimated in the terms of money which the Company could obtain if the assets of the Company were sold, for all cash, in the open market allowing a reasonable time to find a purchaser. (3) . Upon submission of the appraisals setting forth the opinions as to the Appraised Value of the assets of the Company, the average of the two (2) appraisals shall constitute the Appraised Value of the assets of the Company for purposes of this Article 7.

Determination of Appraised Value. For purposes of this Article 7 and Section 6.05, the appraised value (“Appraised Value”) of the assets of the Company shall be determined by one (1) or more independent Qualified Appraisers. The Non-Defaulting Member shall select one (1) Qualified Appraiser and shall include such selection in the Default Notice. Within fifteen (15) days following the Effective Date of the Default Notice, the Defaulting Member shall either agree to the Qualified Appraiser selected by the Non-Defaulting Member or select a second (2nd) Qualified Appraiser and give written notice to the Non-Defaulting Member of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint a Qualified Appraiser within the time period specified and after the expiration of five (5) days following the Effective Date of written demand given after the expiration of the fifteen (15) day period specified immediately above that a Qualified Appraiser be appointed, the Qualified Appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser shall proceed to make the appraisal as herein set forth, and the determination thereof shall be conclusive on all the Members. (1) The Qualified Appraiser or two (2) Qualified Appraisers, as the case may be, shall promptly fix a time for the completion of the appraisal, which shall not be later than thirty (30) days from the Effective Date of the appointment of the last Qualified Appraiser. (2) The Qualified Appraiser(s) shall determine the Appraised Value by determining the fair market value of the assets of the Company, such being the fairest price estimated in the terms of money which the Company could obtain if the assets of the Company were sold, for all cash, in the open market allowing a reasonable time to find a purchaser. (3) Upon submission of the appraisals setting forth the opinions as to the Appraised Value of the assets of the Company, the average of the two (2) appraisals shall constitute the Appraised Value of the assets of the Company for purposes of this Article 7.

Determination of Appraised Value. For purposes of this Article 7 and Section 6.05VII, the appraised value (“"Appraised Value”") of the assets of the Company shall be determined as follows: The Appraised Value shall be determined by one (1) or more independent Qualified Appraisersqualified M.A.I. appraisers with at least five (5) years' experience appraising industrial real estate projects. The Non-Defaulting Member shall select one (1) Qualified Appraiser appraiser and shall include such selection in the Default Notice. Within fifteen (15) days Business Days following the Effective Date effective date of the Default Notice, the Defaulting Member shall either agree to the Qualified Appraiser appraiser selected by the Non-Defaulting Member or select a second (2nd) Qualified Appraiser appraiser and give written notice to the Non-Defaulting Member of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint a Qualified Appraiser such an appraiser within the time period specified and after the expiration of five (5) days Business Days following the Effective Date effective date of written demand that a Qualified Appraiser an appraiser be appointed, then the Qualified Appraiser appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser appraiser shall proceed to make the appraisal as herein set forth, and the determination thereof shall be conclusive on all both of the Members. (1) The Qualified Appraiser or . If two (2) Qualified Appraisersappraisers are selected, then such selected appraisers shall thereafter appoint a third (3rd) appraiser. If the two (2) selected appraisers fail to appoint a third (3rd) appraiser within ten (10) Business Days following the effective date of written notice from the Defaulting Member notifying the Non-Defaulting Member of the selection of the second (2nd) appraiser, then any Member may petition a court of competent jurisdiction to appoint a third (3rd) appraiser, in the same manner as provided for the appointment of an arbitrator pursuant to California Code of Civil Procedure Section 1281.6. The appraiser or three (3) appraisers, as the case may be, shall promptly fix determine a time date for the completion of the appraisal, which shall not be later than thirty sixty (3060) days from the Effective Date effective date of the appointment of the last Qualified Appraiser. (2) appraiser. The Qualified Appraiser(sappraiser(s) shall determine the Appraised Value by determining the fair market value of the assets of the Company, such fair market value being the fairest price estimated in the terms of money which the Company could obtain if the such assets of the Company were sold, for all cash, sold in the open market allowing a reasonable time to find a purchaser. (3) purchaser who purchases with knowledge of the business of the Company at the time of the occurrence of the Default Event. Upon submission of the appraisals setting forth the opinions as to the Appraised Value of the assets of the Company, the two (2) such appraisals which are nearest in amount shall be retained, and the third (3rd) appraisal shall be discarded. The average of the two (2) retained appraisals shall constitute the Appraised Value of the assets of the Company for purposes of this Article 7VII; unless one (1) appraisal is the mean of the other two (2) appraisals, in which case such appraisal shall constitute the Appraised Value of the assets of the Company for purposes of this Article VII.

Determination of Appraised Value. For purposes of this Article 7 and Section 6.05Agreement, the appraised value (“Appraised Value”) of the assets of the Company shall be determined by one (1) or more independent Qualified Appraisers. The Non-Defaulting Member shall select one (1) Qualified Appraiser and shall include such selection in the Default Notice. Within fifteen (15) days following the Effective Date of the Default Notice, the Defaulting Member shall either agree to the Qualified Appraiser selected by the Non-Defaulting Member or select a second (2nd) Qualified Appraiser and give written notice to the Non-Defaulting Member of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint a Qualified Appraiser within the time period specified and after the expiration of five (5) days following the Effective Date of written demand that a Qualified Appraiser be appointed, the Qualified Appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser shall proceed to make the appraisal as herein set forth, and the determination thereof shall be conclusive on all the Members. (1) The Qualified Appraiser or two (2) Qualified Appraisers, as the case may be, shall promptly fix a time for the completion of the appraisal, which shall not be later than thirty (30) days from the Effective Date of the appointment of the last Qualified Appraiser. (2) The Qualified Appraiser(s) shall determine the Appraised Value by determining the fair market value of the assets of the Company, such being ” means the fairest price estimated in the terms of money which the Company could obtain if the its assets of the Company were sold, for all cash, sold in bulk in the open market allowing a reasonable time to find a purchaser. (3) Upon submission purchaser who purchases with knowledge of the appraisals setting forth uses for which such assets in their then condition are adapted and for which such assets are capable of being used. The Appraised Value of the opinions assets of the Company shall be determined as of the date of the Election Notice by one or more real estate appraisers selected as hereafter provided, all of whom shall be members of The Appraisal Institute with not less than five (5) years experience in the real estate appraisal business and be familiar with real estate values in the geographic region in which the Property is located. The Electing Member shall select one (1) appraiser and shall notify the Non-Electing Member in writing of the appraiser so selected within fifteen (15) days after giving the Election Notice. The Non-Electing Member shall select a second appraiser within fifteen (15) days after receipt of that notice and shall notify the Electing Member of the person so selected. If only one (1) appraiser shall have been so selected within twenty (2 0) days after the Electing Member’s notice to the Non-Electing Member of the appraiser selected by the Electing Member, or if two (2) appraisers shall have been so selected but only one (I) such appraiser shall have determined the Appraised Value of the assets of the CompanyCompany within thirty (30) days after the appointment of the second appraiser, then the determination of such appraiser shall be final and binding upon the parties. If two (2) appraisers shall have been appointed and shall have made their determinations of the Appraised Value of the assets of the Company within thirty (30) days after the appointment of the second appraiser and if the difference between the appraised values so determined shall not exceed five percent (5%) of the lesser of such appraised values, then the Appraised Value shall be the average of the amounts so determined. If, however, the difference between the amounts so determined shall exceed five percent (5%) of the lesser of such amounts, then such two (2) appraisers shall have twenty (20) days to select a third appraiser, but if such appraisers fail to do so, then either Member may request the American Arbitration Association or any successor organization thereto to appoint a third appraiser within twenty (20) days of such request, and the Members shall be bound by any such selection within such twenty (20) days. If no such appraiser shall have been selected by the American Arbitration Association within such twenty (20) days, either Member may apply to any court having jurisdiction to make such selection. Any appraiser selected by the original appraisers, by the American Arbitration Association or by such court shall be instructed to determine the Appraised Value in accordance with the terms of this Agreement within thirty (30) days after its appointment. If there is a third appraisal, the Appraised Value shall be the average of the two (2) appraisals shall constitute the nearest in value. All such determinations of Appraised Value shall be final and binding upon the Members. This provision for determination by appraisal shall be specifically enforceable to the extent such remedy is available under applicable law, and any determination hereunder shall be final and binding upon the Members. Except as hereinafter set forth, each Member shall pay for the services of the assets appraiser appointed by such Member. The cost of the Company for purposes services of this Article 7the third appraiser, if any, shall be paid one-half (1/2) by each Member. If only one appraiser is used, the cost of the services of such appraiser shall be paid one-half (1/2) by each Member.

Determination of Appraised Value. For purposes of this Article 7 and Section 6.05, the appraised value (“The Appraised Value”) Value of the assets of the Company Remaining Interests shall be determined as follows: (A) The Appraised Value shall be determined by one a nationally-recognized business appraiser with at least five (15) or more independent Qualified Appraisersyears’ experience appraising businesses similar to the Business of the Company. The Non-Defaulting Member Company shall select one (1) Qualified Appraiser appraiser and shall include such selection in the Default Appraisal Notice. Within fifteen ten (1510) days following the Effective Date effective date of the Default Noticesuch notice, the Defaulting Terminating Member shall either agree to the Qualified Appraiser appraiser selected by the Non-Defaulting Member Company or select a second (2nd) Qualified Appraiser appraiser and give written notice to the Non-Defaulting Member Company of the person so selected. If either In the Non-Defaulting event of the failure of the Terminating Member or the Defaulting Member fails to appoint a Qualified Appraiser such an appraiser within the time period specified and after the expiration of five (5) days following the Effective Date of written demand that a Qualified Appraiser be appointedspecified, the Qualified Appraiser appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser Company shall proceed to make the appraisal as herein set forth, and the determination thereof of such appraiser shall be conclusive on all the MembersCompany and the Terminating Member. (1B) The Qualified Appraiser appraiser or two (2) Qualified Appraisersappraisers, as the case may be, shall promptly fix a time for the completion of the appraisal, which shall not be later than thirty (30) days from the Effective Date effective date of the appointment of the last Qualified Appraiserappraiser. (2C) The Qualified Appraiser(sappraiser(s) shall determine the Appraised Value by determining taking into account all circumstances, including, but not limited to, the fair market value fact that the Remaining Interests are restricted in their transfer and the departure of the assets of Terminating Member from the Company, such being the fairest price estimated in the terms of money which the Company could obtain if the assets of the Company were sold, for all cash, in the open market allowing a reasonable time to find a purchaser. (3D) Upon submission of the appraisals appraisal(s) setting forth the opinions as to the Appraised Value of the assets Remaining Interests, if the appraisals prepared by the two (2) appraisers are the same or differ by an amount that does not exceed 20% of the Companyhigher of the two appraisals, the Appraised Value shall be the average of the two appraisals (the “Average Value”). If the two appraisals differ by more than 20% of the higher of the two appraisals, then such selected appraisers shall appoint a third (3rd) appraiser. If the two (2) appraisals selected appraisers fail to appoint a third (3rd) appraiser within ten (10) days following the completion of the two appraisals, then either the Company or the Terminating Member may request that the American Arbitration Association select the third appraiser. (E) The third appraiser shall constitute promptly fix a time for the completion of the appraisal, which shall not be later than thirty (30) days from the effective date of appointment of the third appraiser. The appraisal setting forth the opinion of the third appraiser as to the Appraised Value of the assets Remaining Interests shall be determinative; unless such determined Appraised Value is higher than the higher of the two initial appraisals or lower than the lower of the two initial appraisals, in which case the Average Value shall be the Appraised Value. (F) Following determination of the Appraised Value pursuant to this Section 10.6(d)(iv), the Company for purposes shall have the right, but not the obligation, to purchase the Remaining Interests from the Terminating Member at the Appraised Value by delivering a Repurchase Notice to the Terminating Member at any time within twelve (12) months of such determination (the “Appraisal Expiration Date”). Thereafter, if and to the extent the Company has not repurchased the Remaining Interests from the Terminating Member, its option to purchase the Remaining Interests shall automatically renew and it may re-execute the option by delivering an Offer Notice to the Terminating Member at any time following the termination of such twelve (12)-month period, at which time the provisions of this Article 710.6(d) shall govern the procedure to be followed by the parties. The Company’s option hereunder shall continuously renew in accordance with this subsection (F) upon each Appraisal Expiration Date unless and until all of the Remaining Interests are purchased by the Company from the Terminating Member. (G) If the Company purchases any of the Remaining Interests based upon the Appraised Value, all costs related to the appraisal process described in this Section 10.6(d)(iv) shall be shared equally by the Company and the Terminating Member. If the Company does not purchase any of the Remaining Interests based upon the Appraised Value, then the costs related to the appraisal process described in this Section 10.6(d)(iv) with respect to the particular appraisal which determined such Appraised Value shall be borne by the Company.

Determination of Appraised Value. For purposes of this Article 7 and Section 6.05Agreement, the appraised value (“Appraised Value”) of the assets of the Company shall be determined by one (1) or more independent Qualified Appraisers. The Non-Defaulting Member shall select one (1) Qualified Appraiser and shall include such selection in the Default Notice. Within fifteen (15) days following the Effective Date of the Default Notice, the Defaulting Member shall either agree to the Qualified Appraiser selected by the Non-Defaulting Member or select a second (2nd) Qualified Appraiser and give written notice to the Non-Defaulting Member of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint a Qualified Appraiser within the time period specified and after the expiration of five (5) days following the Effective Date of written demand that a Qualified Appraiser be appointed, the Qualified Appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser shall proceed to make the appraisal as herein set forth, and the determination thereof shall be conclusive on all the Members. (1) The Qualified Appraiser or two (2) Qualified Appraisers, as the case may be, shall promptly fix a time for the completion of the appraisal, which shall not be later than thirty (30) days from the Effective Date of the appointment of the last Qualified Appraiser. (2) The Qualified Appraiser(s) shall determine the Appraised Value by determining the fair market value of the assets of the Company, such being ” means the fairest price estimated in the terms of money which the Company could obtain if the its assets of the (other than cash then in Company bank accounts) were sold, for all cash, sold in bulk in the open market allowing a reasonable time to find a purchaser. (3) Upon submission purchaser who purchases with knowledge of the appraisals setting forth uses for which such assets in their then condition are adapted and for which such assets are capable of being used. The Appraised Value of the opinions assets of the Company shall be determined as of the date of the Election Notice by one or more real estate appraisers selected as hereafter provided, all of whom shall be members of The Appraisal Institute with not less than five (5) years experience in the real estate appraisal business and be familiar with real estate values in the geographic region in which the Property is located. The Electing Member shall select one (1) appraiser and shall notify the Non-Electing Member in writing of the appraiser so selected within fifteen (15) days after giving the Election Notice. The Non-Electing Member shall select a second appraiser within fifteen (15) days after receipt of that notice and shall notify the Electing Member of the person so selected. If only one (1) appraiser shall have been so selected within twenty (20) days after the Electing Member’s notice to the Non-Electing Member of the appraiser selected by the Electing Member, or if two (2) appraisers shall have been so selected but only one (1) such appraiser shall have determined the Appraised Value of the assets of the CompanyCompany within thirty (30) days after the appointment of the second appraiser, then the determination of such appraiser shall be final and binding upon the parties. If two (2) appraisers shall have been appointed and shall have made their determinations of the Appraised Value of the assets of the Company within thirty (30) days after the appointment of the second appraiser and if the difference between the appraised values so determined shall not exceed five percent (5%) of the lesser of such appraised values, then the Appraised Value shall be the average of the amounts so determined. If, however, the difference between the amounts so determined shall exceed five percent (5%) of the lesser of such amounts, then such two (2) appraisers shall have twenty (20) days to select a third appraiser, but if such appraisers fail to do so, then either Member may request the American Arbitration Association or any successor organization thereto to appoint a third appraiser within twenty (20) days of such request, and the Members shall be bound by any such selection within such twenty (20) days. If no such appraiser shall have been selected by the American Arbitration Association within such twenty (20) days, either Member may apply to any court having jurisdiction to make such selection. Any appraiser selected by the original appraisers, by the American Arbitration Association or by such court shall be instructed to determine the Appraised Value in accordance with the terms of this Agreement within thirty (30) days after its appointment. If there is a third appraisal, the Appraised Value shall be the average of the two (2) appraisals shall constitute the nearest in value. All such determinations of Appraised Value shall be final and binding upon the Members. This provision for determination by appraisal shall be specifically enforceable to the extent such remedy is available under applicable law, and any determination hereunder shall be final and binding upon the Members. Except as hereinafter set forth, each Member shall pay for the services of the assets appraiser appointed by such Member. The cost of the Company for purposes services of this Article 7the third appraiser, if any, shall be paid one-half (1/2) by each Member. If only one appraiser is used, the cost of the services of such appraiser shall be paid one-half (1/2) by each Member.

Determination of Appraised Value. For purposes of this Article 7 and Section 6.05VII, the appraised value (“"Appraised Value”") of the assets of the Company shall be determined as follows: The Appraised Value shall be determined by one (1) or more independent Qualified Appraisersqualified M.A.I. appraisers with at least five (5) years' experience appraising industrial real estate projects. The Non-Defaulting Member shall select one (1) Qualified Appraiser appraiser and shall include such selection in the Default Notice. Within fifteen (15) days Business Days following the Effective Date effective date of the Default Notice, the Defaulting Member shall either agree to the Qualified Appraiser appraiser selected by the Non-Defaulting Member or select a second (2nd) Qualified Appraiser appraiser and give written notice to the Non-Defaulting Member of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint a Qualified Appraiser such an appraiser within the time period specified and after the expiration of five (5) days Business Days following the Effective Date effective date of written demand that a Qualified Appraiser an appraiser be appointed, then the Qualified Appraiser appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser appraiser shall proceed to make the appraisal as herein set forth, and the determination thereof shall be conclusive on all both of the Members. (1) The Qualified Appraiser or . If two (2) Qualified Appraisersappraisers are selected, then such selected appraisers shall thereafter appoint a third (3rd) appraiser. If the two (2) selected appraisers fail to appoint a third (3rd) appraiser within ten (10) Business Days following the effective date of written notice from the Defaulting Member notifying the Non-Defaulting Member of the selection of the second (2nd) appraiser, then any Member may petition a court of competent jurisdiction to appoint a third (3rd) appraiser, in the same manner as provided for the appointment of an arbitrator pursuant to California Code of Civil Procedure Section 1281.6. The appraiser or three (3) appraisers, as the case may be, shall promptly fix determine a time date for the completion of the appraisal, which shall not be later than thirty sixty (3060) days from the Effective Date effective date of the appointment of the last Qualified Appraiser. (2) appraiser. The Qualified Appraiser(sappraiser(s) shall determine the Appraised Value by determining the fair market value of the assets of the Company, such fair market value being the fairest price estimated in the terms of money which the Company could obtain if the such assets of the Company were sold, for all cash, sold in the open market allowing a reasonable time to find a purchaser. (3) purchaser who purchases with knowledge of the business of the Company at the time of the occurrence of the Default Event. Upon submission of the appraisals setting forth the opinions as to the Appraised Value of the assets of the Company, the two (2) such appraisals which are nearest in amount shall be retained, and the third (3rd) appraisal shall be discarded. The average of the two (2) retained appraisals shall constitute the Appraised Value of the assets of the Company for purposes of this Article 7.VII; unless one (1) appraisal is the mean of the other two (2) appraisals, in which case such appraisal shall constitute the Appraised Value of the assets of the Company for purposes of this Article VII. 1116763.08/OC 373745-00002/0-0-00/pdo/agt 30 54430-10898/2652216.4

Determination of Appraised Value. For purposes of this Article 7 and Section 6.05, (i) In order to determine the appraised value of a Common Share, the Requester and the Company (“acting with the consent of the majority of the members of the Board who are not affiliated with the Requester) shall each retain an independent investment banking firm of national reputation (such Persons being referred to herein as an "Appraiser"), to determine in good faith through any reasonable valuation method the purchase price expected to be paid for one Common Share in a transaction between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of all relevant facts, in a single transaction or series of related transactions involving the sale or transfer of all of the Company's issued and outstanding Capital Securities and Convertible Securities, with no discount or premium of any type being applied on account of control or lack thereof, marketability or other factors unique to particular Member or group of Members (such value being referred to as the "Common Appraised Value”"). (ii) The Company shall select an Appraiser within five days of its receipt of an Appraisal Notice (such Appraiser being referred to as the assets of "Company Appraiser"), and the Company shall be determined by one (1) or more independent Qualified Appraisers. The Non-Defaulting Member shall select one (1) Qualified engage the Company Appraiser and shall include such selection in the Default Requester Appraiser for purposes of determining the Common Appraised Value as contemplated herein within ten days of the Company's receipt of the Appraisal Notice. Within fifteen If the Company (15) days following acting on the Effective Date authority of the Default majority of the members of the Board who are affiliated with the Requester) for any reason fails to designate a Company Appraiser and engage both the Company Appraiser and Requester Appraiser within ten Business Days of its receipt of an Appraisal Notice, then the Defaulting Member Requester may, at the Company's expense, engage an Appraiser to determine the Common Appraised Value within twenty days of its engagement, and such Appraiser shall either agree to be the Qualified sole Appraiser selected by the Non-Defaulting Member or select a second (2nd) Qualified Appraiser for purposes hereof and give written notice to the Non-Defaulting Member its determination of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint a Qualified Appraiser within the time period specified and after the expiration of five (5) days following the Effective Date of written demand that a Qualified Appraiser be appointed, the Qualified Appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser shall proceed to make the appraisal as herein set forth, and the determination thereof Common Appraised Value shall be conclusive and binding on the parties for all the Memberspurposes. (1iii) The Qualified If the Company engages a Company Appraiser or two (2) Qualified Appraisersand the Requester Appraiser within ten Business Days of its receipt of an Appraisal Notice as contemplated by Section 9.1(b)(ii), as then both the case may be, Requester Appraiser and the Company Appraiser shall promptly fix a time for independently estimate the completion Common Appraised Value within twenty days of the appraisal, which shall not be later than thirty (30) days from the Effective Date of the appointment engagement of the last Qualified Appraiser. of such two Appraisers to be engaged (2) The Qualified Appraiser(s) shall determine each estimation of the Appraised Value by determining the fair market value of the assets of the Company, such an Appraiser being the fairest price estimated in the terms of money which the Company could obtain if the assets of the Company were sold, for all cash, in the open market allowing a reasonable time referred to find a purchaser. (3) Upon submission of the appraisals setting forth the opinions as to the an "Appraiser Estimate"). The Common Appraised Value of the assets of the Company, shall be an amount equal to the average of the two (2) appraisals shall constitute the Appraised Value of the assets Appraiser Estimates of the Company Appraiser and the Requester Appraiser; provided, however, that if such Appraiser Estimates differ by an amount greater than 10% of the lower of such Appraiser Estimate, the Company Appraiser and Requester Appraiser shall collectively select a third Appraiser to make a determination of the Common Appraised Value (the "Third Appraiser"). The Company (acting on the authority of the majority of the members of the Board who are not affiliated with the Requester) shall engage such Third Appraiser for purposes of determining the Common Appraised Value as contemplated herein within five Business Days of such Third Appraiser's selection by the Company Appraiser and the Requester Appraiser. If the Company for any reason fails to so engage such Third Appraiser within such five Business Day period, then the highest of the Appraiser Estimates determined by the Company Appraiser and the Requester Appraiser shall be the Common Appraised Value and shall be conclusive and binding for all purposes. (iv) If the Company engages the Third Appraiser as provided above, the Third Appraiser shall independently estimate the Common Appraised Value within twenty days of its engagement for the purpose, which estimate shall be the Common Appraised Value and conclusive and binding for all purposes; provided, however, if the Third Appraiser's Appraiser Estimate is either greater than the higher Appraiser Estimate or lower than the lower Appraiser Estimate as determined by the Company Appraiser and Requester Appraiser, then the average of the Third Appraiser's Appraiser Estimate and the closest of the Appraiser Estimate determined by the Company Appraiser and Requester Appraiser valuation shall be the Common Appraised Value and conclusive and binding for all purposes. (v) The Company and each of the Members shall cooperate with all Appraisers engaged as herein provided and provide them with all such information as they shall reasonably request regarding the Company and its Subsidiaries, including, without limitation, making members of the Company's and its Subsidiaries' management available to such Appraisers to discuss the Company's and its Subsidiaries' businesses. The Company shall provide each Investor Member with copies of all such information as it provides to any Appraiser at the same time it provides the same to an Appraiser, and each Investor Member shall have the right to have a representative thereof participate in all such meetings between or among representatives of any Appraiser and member of the Company's and its Subsidiaries' management. (vi) The Common Appraised Value determined as herein provided shall be conclusive, final and binding on the parties and shall be enforceable in any court having jurisdiction over a proceeding brought to seek such enforcement. The cost of the Common Appraised Value determination including, without limitation, the fees and expenses of the Appraisers, shall be borne by the Company and taken into account in determining the Common Appraised Value. The time periods specified in this Article 7Section 9.1(b) are intended to produce a determination of the Common Appraised Value in accordance with the procedures set forth herein not later than 60 days after the delivery to the Company of an Appraisal Notice, and the parties shall take all actions and timely perform their obligations hereunder so as to accomplish such intent.

Determination of Appraised Value. A. Within forty-five (45) days following receipt by Lender of full and complete Appraisal Information for each of the Facilities, Lender shall (i) review the Appraisal Information and determine, in its sole discretion, the Appraised Value of each Facility and (ii) notify Borrower of its determination of such value; provided Lender's failure to so notify Borrower within such period shall not be deemed to be a default by Lender hereunder or a waiver of any of the Security Pool Covenants and shall result in an extension of the forty-five (45) day period until the date Lender notifies Borrower of its determination of the Appraised Values. Fifteen (15) days after the date Lender notifies Borrower of its determination of the Appraised Value, such Appraised Value shall become effective and final for purposes of calculating the Loan to Appraisal Ratio. For purposes of this Article 7 and Section 6.05Agreement, the appraised value (“Appraised Value”) of the assets of the Company shall be Lender has determined by one (1) or more independent Qualified Appraisers. The Non-Defaulting Member shall select one (1) Qualified Appraiser and shall include such selection in the Default Notice. Within fifteen (15) days following the Effective Date of the Default Notice, the Defaulting Member shall either agree to the Qualified Appraiser selected by the Non-Defaulting Member or select a second (2nd) Qualified Appraiser and give written notice to the Non-Defaulting Member of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint a Qualified Appraiser within the time period specified and after the expiration of five (5) days following the Effective Date of written demand that a Qualified Appraiser be appointed, the Qualified Appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser shall proceed to make the appraisal as herein set forth, and the determination thereof shall be conclusive on all the Members. (1) The Qualified Appraiser or two (2) Qualified Appraisers, as the case may be, shall promptly fix a time for the completion of the appraisal, which shall not be later than thirty (30) days from the Effective Date of the appointment of the last Qualified Appraiser. (2) The Qualified Appraiser(s) shall determine the Appraised Value by determining the fair market value of the assets of the Company, such being the fairest price estimated in the terms of money which the Company could obtain if the assets of the Company were sold, for all cash, in the open market allowing a reasonable time to find a purchaser. (3) Upon submission of the appraisals setting forth the opinions as to the Appraised Value of the assets Facilities as of the Companydate of Closing and no changes shall be made in such Appraised Value prior to March 31, 1996. In addition, from and after March 31, 1996, Lender shall have the average right from time to time to cause one or more of the two (2) appraisals shall constitute Facilities to be reappraised if in Lender's reasonable judgment there has been a material adverse change in the value of one or more of the Facilities to be reappraised. B. If the Marietta Trade Center is encumbered by the CRE Debt, then the Appraised Value of the assets of the Company such Facility shall be deemed for purposes of this Article 7Agreement to be 80% of the difference between the property's Appraised Value as determined by Lender and the then outstanding principal balance of the CRE Debt. C. The Appraised Value of Marietta Trade Center and Paradise Marketplace shall not, for purposes of this Agreement, be included in the calculation of Appraised Value at such time as the outstanding principal balance of the Loan is less than $30 million. D. The Appraised Value of the Facilities shall be deemed for purposes of this Agreement to include the amount of the Letter of Credit or any Damage Letter of Credit as of the applicable date.

Determination of Appraised Value. For purposes of this Article 7 and Section 6.05VII, the appraised value (“"Appraised Value”") of the assets of the Company shall be determined as follows: The Appraised Value shall be determined by one (1) or more independent Qualified Appraisersqualified M.A.I. appraisers with at least five (5) years' experience appraising industrial real estate projects. The Non-Defaulting Member shall select one (1) Qualified Appraiser appraiser and shall include such selection in the Default Notice. Within fifteen (15) days Business Days following the Effective Date effective date of the Default Notice, the Defaulting Member shall either agree to the Qualified Appraiser appraiser selected by the Non-Defaulting Member or select a second (2nd) Qualified Appraiser appraiser and give written notice to the Non-Defaulting Member of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint a Qualified Appraiser such an appraiser within the time period specified and after the expiration of five (5) days Business Days following the Effective Date effective date of written demand that a Qualified Appraiser an appraiser be appointed, then the Qualified Appraiser appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser appraiser shall proceed to make the appraisal as herein set forth, and the determination thereof shall be conclusive on all both of the Members. (1) The Qualified Appraiser or . If two (2) Qualified Appraisersappraisers are selected, as the case may be, then such selected appraisers shall promptly fix thereafter appoint a time for the completion of the appraisal, which shall not be later than thirty third (303rd) days from the Effective Date of the appointment of the last Qualified Appraiser. (2) The Qualified Appraiser(s) shall determine the Appraised Value by determining the fair market value of the assets of the Company, such being the fairest price estimated in the terms of money which the Company could obtain if the assets of the Company were sold, for all cash, in the open market allowing a reasonable time to find a purchaser. (3) Upon submission of the appraisals setting forth the opinions as to the Appraised Value of the assets of the Company, the average of appraiser. If the two (2) appraisals shall constitute selected appraisers fail to appoint a third (3rd) appraiser within ten (10) Business Days following the Appraised Value effective date of written notice from the Defaulting Member notifying the Non-Defaulting Member of the assets selection of the Company second (2nd) appraiser, then any Member may petition a court of competent jurisdiction to appoint a third (3rd) appraiser, in the same manner as provided for purposes the appointment of this Article 7an arbitrator pursuant to California Code of Civil Procedure Section 1281.6.

Determination of Appraised Value. For purposes of this Article 7 and Section 6.05VII, the appraised value (“"Appraised Value”") of the assets of the Company shall be determined as follows: The Appraised Value shall be determined by one (1) or more independent Qualified Appraisersqualified M.A.I. appraisers with at least five (5) years' experience appraising industrial real estate projects. The Non-Defaulting Member shall select one (1) Qualified Appraiser appraiser and shall include such selection in the Default Notice. Within fifteen (15) days Business Days following the Effective Date effective date of the Default Notice, the Defaulting Member shall either agree to the Qualified Appraiser appraiser selected by the Non-Defaulting Member or select a second (2nd) Qualified Appraiser appraiser and give written notice to the Non-Defaulting Member of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint a Qualified Appraiser such an appraiser within the time period specified and after the expiration of five (5) days Business Days following the Effective Date effective date of written demand that a Qualified Appraiser an appraiser be appointed, then the Qualified Appraiser appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser appraiser shall proceed to make the appraisal as herein set forth, and the determination thereof shall be conclusive on all both of the Members. (1) The Qualified Appraiser or . If two (2) Qualified Appraisersappraisers are selected, then such selected appraisers shall thereafter appoint a third (3rd) appraiser. If the two (2) selected appraisers fail to appoint a third (3rd) appraiser within ten (10) Business Days following the effective date of written notice from the Defaulting Member notifying the 1101801.21/OC 54430-10898/2568195.16 34 Non-Defaulting Member of the selection of the second (2nd) appraiser, then any Member may petition a court of competent jurisdiction to appoint a third (3rd) appraiser, in the same manner as provided for the appointment of an arbitrator pursuant to California Code of Civil Procedure Section 1281.6. The appraiser or three (3) appraisers, as the case may be, shall promptly fix determine a time date for the completion of the appraisal, which shall not be later than thirty sixty (3060) days from the Effective Date effective date of the appointment of the last Qualified Appraiser. (2) appraiser. The Qualified Appraiser(sappraiser(s) shall determine the Appraised Value by determining the fair market value of the assets of the Company, such fair market value being the fairest price estimated in the terms of money which the Company could obtain if the such assets of the Company were sold, for all cash, sold in the open market allowing a reasonable time to find a purchaser. (3) purchaser who purchases with knowledge of the business of the Company at the time of the occurrence of the Default Event. Upon submission of the appraisals setting forth the opinions as to the Appraised Value of the assets of the Company, the two (2) such appraisals which are nearest in amount shall be retained, and the third (3rd) appraisal shall be discarded. The average of the two (2) retained appraisals shall constitute the Appraised Value of the assets of the Company for purposes of this Article 7VII; unless one (1) appraisal is the mean of the other two (2) appraisals, in which case such appraisal shall constitute the Appraised Value of the assets of the Company for purposes of this Article VII.

Determination of Appraised Value. For purposes of this Article 7 and Section 6.05, the appraised value (“The "Appraised Value”) of the assets " of the Company shall be determined by the value which M/I and the electing Member(s), collectively, shall assign to the Company. If the Members do not agree on such a value within twenty (20) days after the date of the giving of the notice (or the later of the notices, if more than one (1is given) or more independent Qualified Appraisers. The Non-Defaulting Member shall select one (1) Qualified Appraiser and shall include such selection referred to in the Default Notice. Within fifteen final sentence of Section 7.3(a) (15the "Section 7.3(a) days following the Effective Date of the Default NoticeNotice Date"), the Defaulting Member shall either agree to the Qualified Appraiser selected by the Non-Defaulting Member or select a second (2nd) Qualified Appraiser and give written notice to the Non-Defaulting Member of the person so selected. If either the Non-Defaulting Member or the Defaulting Member fails to appoint a Qualified Appraiser within the time period specified and after the expiration of five (5) days following the Effective Date of written demand that a Qualified Appraiser be appointed, the Qualified Appraiser duly appointed by the Member making such demand to appoint such Qualified Appraiser shall proceed to make the appraisal as herein set forth, and the determination thereof shall be conclusive on all the Members. (1) The Qualified Appraiser or two (2) Qualified Appraisers, as the case may be, shall promptly fix a time for the completion of the appraisal, which shall not be later than thirty (30) days from the Effective Date of the appointment of the last Qualified Appraiser. (2) The Qualified Appraiser(s) shall determine the Appraised Value by determining shall be the fair market value amount which would be distributed to all of the assets of the Company, such being the fairest price estimated in the terms of money which the Company could obtain if Members pursuant to Section 4.6 assuming hypothetically that the assets of the Company were soldsold for their fair market value, for as determined by an appraiser mutually chosen by all cash, in of the open market allowing a reasonable time to find a purchaser.Members. If the Members do not mutually agree on an appraiser within forty (40) days after the Section 7.3 (3a) Upon submission of the appraisals setting forth the opinions as to Notice Date, the Appraised Value of the assets of the Company, shall be the average of the two (2) appraisals shall constitute closest amounts assigned as the Appraised Value by three (3) appraisers, one of whom is appointed by M/I, one of whom is appointed by the electing Member(s) and one of whom is chosen by the other two appraisers. If the appraisers chosen by (a) Notice Date, the Manager shall promptly thereafter, and in any event within eighty (80) days after the Section 7.3(a) Notice Date, formally request that the Administrative Law Judge of the assets Court of Common Pleas of Franklin County, Ohio select an appraiser for this purpose. The appraiser authorized under this Section 7.3(b) to assign a value to the Company for purposes shall have no more than forty-five (45) days from their final selection or appointment to prepare and deliver such appraisals to the Members. The costs of this Article 7appraisal, if any, shall be borne fifty percent (50%) by M/I and fifty percent (50%) by the electing Member(s).