Common use of Fair Market Value Purchase Option Clause in Contracts

Fair Market Value Purchase Option. So long as no Event of Default exists, Lessee is hereby granted the following rights and options to purchase the Leased Property for a purchase price equal to the Leased Property's Fair Market Value, as defined below (the "FMV"). (a) The option exercise price shall equal the FMV of the Leased Property as of the applicable option exercised. FMV is defined as the price at which the Leased Property could be sold by a person who desires, but is not required to sell, and is sought by a person who desires, but who is not required to buy, after due consideration of all the elements reasonably affecting value provided that in no event shall the FMV be less than the Exit Purchase Price, as defined below. For purposes of determining the FMV of the Leased Property, Lessor and Lessee shall within ten (10) days of FMV Determination Notice each designate an independent real estate appraiser duly licensed in the State and having not less than ten (10) years experience appraising commercial properties in the area of the Leased Property and shall notify each other in writing of such designation. Within the next ten (10) days, such appraisers shall designate a third independent real estate appraiser with the same credentials and reasonably acceptable to both Lessor and Lessee and shall notify Lessor and Lessee of such designation. After their appointment, all three such appraisers shall be directed to determine, independently, the FMV of the Leased Property. Within sixty (60) days after the designation of the third appraiser, each of the three appraisers shall submit their written determination of the FMV of the Leased Property in accordance with this section to both Lessor and Lessee. If the FMV of the Leased Property is determined by any two or all three of such appraisers is identical, then the FMV for purposes of the Purchase Option shall be such identical amount. If the FMV as determined by each such

Fair Market Value Purchase Option. So long as Provided that no Event of Default existsor Potential Default has then occurred and is continuing, Lessee is hereby granted shall have the following rights and options option to purchase all, but not less than all, of the Leased Property items of Equipment constituting an individual 5ESS switch at the end of the applicable Term for a purchase price equal to the Leased Property's its then Fair Market Value, as defined below (which shall mean the "FMV"). (a) The option exercise cash purchase price shall equal the FMV of the Leased Property as of the applicable option exercised. FMV is defined as the price at which the Leased Property could would be sold by a person who desiresobtained in an arm's-length transaction between an informed and willing buyer and an informed and willing seller, but is not required under no compulsion to sell, excluding any value attributable to improvements which may be removed by Lessee pursuant to Section 11, without consideration of Lessee's purchase or renewal options and is sought by a person who desireson an uninstalled basis, but who assuming (other than in the case of an exercise of remedies hereunder) that such item of Equipment was in the condition required hereunder, together with any other payments then due and owing under the applicable Schedule. The Fair Market Value shall be subject to a cap ("FMV Cap") set forth in the applicable Schedule. Lessee shall provide Lessor with at least 180 days prior written notice of its intent to purchase Equipment for Fair Market Value. Such notice shall be irrevocable unless the Fair Market Value is more than fifteen percent (15%) above any estimate thereof provided by Lessee in such written notice and Lessee notifies Lessor in writing not required later than five days after the determination of Fair Market Value of its decision to buy, after due consideration of all the elements reasonably affecting value provided that in no event shall the FMV be less than the Exit Purchase Price, as defined below. For purposes of determining the FMV revoke exercise of the Leased Property, Fair Market Value purchase option. If Lessor and Lessee cannot agree on such Fair Market Value, the Fair Market Value shall within ten (10) days of FMV Determination Notice each designate be determined by an independent real estate appraiser duly licensed in the State selected by Lessor and having not less than ten (10) years experience appraising commercial properties in the area of the Leased Property Lessee, provided, however, that if Lessor and Lessee are unable to agree upon an independent appraiser, each shall notify each other in writing of select an independent appraiser, and such designation. Within the next ten (10) days, such appraisers independent appraiser shall designate select a third independent real estate appraiser with which shall determine the same credentials and reasonably acceptable to both Lessor and Fair Market Value. Lessee shall be responsible for and shall notify Lessor pay all costs and Lessee of such designation. After their appointment, all three such appraisers shall be directed to determine, independently, the FMV of the Leased Property. Within sixty (60) days after the designation of the third appraiser, each of the three appraisers shall submit their written determination of the FMV of the Leased Property in accordance expenses associated with this section to both Lessor and Lessee. If the FMV of the Leased Property is determined by any two or all three of such appraisers is identical, then the FMV for purposes of the Purchase Option shall be such identical amount. If the FMV as determined by each suchappraisal.

Fair Market Value Purchase Option. So long as Provided that no Event of Default existsexists under the Lease, the Lessee is hereby granted shall have the following rights and options option to purchase any or all of the Leased Property Equipment at the expiration of the Initial Term or any Extended Term (Extended Term is defined as either an automatic extension as provided in Section 3 hereto, or a fixed extension term as negotiated between Lessee and Lessor) for a purchase price equal to the Leased PropertyFair Market Value of the Equipment at such point in time. Such option may be exercised by Lessee notifying Lessor not less than ninety (90) days prior to the expiration of the Initial Term or any Extended Term then in effect. On the expiration date of the Initial Term or any Extended Term, if Lessee has elected to purchase the Equipment, Lessee shall purchase from Lessor, and Lessor shall sell to Lessee the Equipment on an AS IS, WHERE IS, BASIS, except that Lessor shall warrant title and that the Equipment is free and clear of all liens and encumbrances arising by or through the Lessor, except for taxes or other impositions for which Lessee is obligated to pay under the Lease. Lessor shall provide Lessee with a Xxxx of Sale following payment. For the purposes of this Purchase Option, "Fair Market Value" shall be defined as the purchase price that would be obtained in an arm's length transaction between a willing seller and a willing purchaser, neither under the compulsion to buy or sell. In the event Lessor and Lessee cannot agree upon the Fair Market Value, as defined below (the "FMV"). (a) The option exercise price then such value shall equal the FMV of the Leased Property as of the applicable option exercised. FMV is defined as the price at which the Leased Property could be sold determined by a person who desires, but is not required to sell, and is sought by a person who desires, but who is not required to buy, after due consideration of all the elements reasonably affecting value provided that in no event shall the FMV be less than the Exit Purchase Price, as defined below. For purposes of determining the FMV of the Leased Property, Lessor and Lessee shall within ten (10) days of FMV Determination Notice each designate an independent real estate appraiser duly licensed in the State and having not less than ten (10) years experience appraising commercial properties in the area of the Leased Property and shall notify each other in writing selected by Lessor but satisfactory to Lessee. The cost of such designation. Within the next ten (10) days, such appraisers shall designate a third independent real estate appraiser with the same credentials and reasonably acceptable to both Lessor and Lessee and shall notify Lessor and Lessee of such designation. After their appointment, all three such appraisers appraisal shall be directed to determine, independently, the FMV of the Leased Property. Within sixty (60) days after the designation of the third appraiser, each of the three appraisers shall submit their written determination of the FMV of the Leased Property in accordance with this section to both borne equally by Lessor and Lessee. If the FMV of the Leased Property is determined by any two or all three of such appraisers is identical, then the FMV for purposes of the Purchase Option shall be such identical amount. If the FMV as determined by each such.

Fair Market Value Purchase Option. So long as no Event of Default exists, Lessee is hereby granted the following rights and options to purchase the Leased Property for a purchase price equal to the Leased Property's ’s Fair Market Value, as defined below (the "“FMV"”). (a) The option exercise price shall equal the FMV of the Leased Property as of the applicable option exercised. FMV is defined as the price at which the Leased Property could be sold by a person who desires, but is not required to sell, and is sought by a person who desires, but who is not required to buy, after due consideration of all the elements reasonably affecting value provided that in no event shall the FMV be less than the Exit Purchase Price, as defined below. For purposes of determining the FMV of the Leased Property, Lessor and Lessee shall within ten (10) days of FMV Determination Notice each designate an independent real estate appraiser duly licensed in the State and having not less than ten (10) years experience appraising commercial properties in the area of the Leased Property and shall notify each other in writing of such designation. Within the next ten (10) days, such appraisers shall designate a third independent real estate appraiser with the same credentials and reasonably acceptable to both Lessor and Lessee and shall notify Lessor and Lessee of such designation. After their appointment, all three such appraisers shall be directed to determine, independently, the FMV of the Leased Property. Within sixty (60) days after the designation of the third appraiser, each of the three appraisers shall submit their written determination of the FMV of the Leased Property in accordance with this section to both Lessor and Lessee. If the FMV of the Leased Property is determined by any two or all three of such appraisers is identical, then the FMV for purposes of the Purchase Option shall be such identical amount. If the FMV as determined by each suchsuch appraiser is different from the others, but two of such determinations are within five percent (5%) of each other, then the purchase price pursuant the FMV Purchase Option shall be the arithmetic mean of the such two amounts. In all other cases, the highest and lowest of such determination shall be disregarded and the FMV shall be equal to the middle, or remaining, determination. Notwithstanding anything contained herein to the contrary, the determination of the FMV shall not include the square footage of the Expansion Area or the improvements on the Expansion Area constructed by Lessee at Lessee’s sole cost and expense. Lessor shall pay all costs associated with the appraiser designated by Lessor, and Lessee shall pay all costs associated with the appraiser designated by Lessee. Lessor and Lessee shall share equally all costs associated with the third appraiser. (b) For purposes hereof, “Exit Purchase Price” shall mean an amount equal to the sum of (a) the principal balance of any Lessor’s Indenture due at the closing of Lessee’s acquisition of the Leased Property; (b) any exit, defeasance, prepayment, yield maintenance, or other fees or penalties resulting from defeasance or prepayment of such Lessor’s Indenture (it being agreed that (a) and (b) above shall be adjusted as required to account for differences between the estimated date of closing and the actual date of closing of the sale to Lessee); and (c) the then current amount, if any, of Lessor’s equity in the Leased Property arising as a result of any decrease in the FMV of the Leased Property.