Common use of Selection of Appraisers Clause in Contracts

Selection of Appraisers. The Partner requesting an appraisal pursuant to Section 11.1 above (hereinafter referred to as the “Submitting Partner”) shall, in its notice to the other Partner (hereinafter referred to as the “Receiving Partner”) state (i) with respect to an Event of Default, that it elects to have the fair market value of the Defaulting Partner‟s interest in the Partnership determined by the appraisal procedures set forth herein and the name of its appraiser, or (ii) with respect to a Withdrawal Event, that the fair market value of the Ownership Interest is to be determined by the appraisal procedures set forth herein and the name of its appraiser. Within ten (10) days after its receipt of such notice from the Submitting Partner, the Receiving Partner shall notify the Submitting Partner of the name of the Receiving Partner‟s appraiser. Upon appointment, the two appraisers shall agree to determine faithfully, fairly and within forty-five days (45) day of the appointment of the second appraiser the fair market value of the Property. The two appraisers shall afford the Submitting Partner and the Receiving Partner the right to submit evidence with respect to such fair market value and shall, with all possible speed, make their respective determinations in writing and give notice thereof to the Submitting Partner and the Receiving Partner. If the higher of the two appraisals determined by the two appraisers exceeds the lower appraisal by less than five percent (5%), the average of the fair market values so determined shall be controlling and shall be binding upon the Submitting Partner and the Receiving Partner. If the higher of the two appraisals exceeds the lower appraisal by more than five percent (5%), the appraisers, within ten (10) days after both of the appraisers have made their determinations, shall appoint in writing a third appraiser and give written notice of such appointment to the Submitting Partner and the Receiving Partner. If the two appraisers shall fail to appoint or agree upon a third appraiser within the 10- day period, a third appraiser shall be selected by the Submitting Partner and the Receiving Partner if they so agree upon such third appraiser within a further period of ten (10) days. If any appraiser shall not be appointed or agreed upon within the time herein provided, either the Submitting Partner or the Receiving Partner may apply to the appropriate court of the State of Texas for the appointment of such appraiser. The third appraiser shall be sworn to determine faithfully and fully, pursuant to the procedures set forth above, the fair market value of the Property. The third appraiser‟s determination of value shall be controlling unless it is higher (or lower than the higher (or lower) determination of value of the original two appraisers, in which case such previous high (or low) determination shall be controlling and binding upon the Partners. The decision of the appraisers under this Section shall be final and binding on the Partners and shall be specifically enforceable in a court having jurisdiction. The fair market value of the Defaulting Partner‟s or Withdrawing Party‟s Ownership Interest shall be the amount such Partner would receive upon a sale of the Property by the Partnership at its fair market value as determined by the appraisers pursuant hereto, taking into account the distribution priorities set forth in Section 4.1 above, and after payment of all debts and liabilities of the Defaulting Partner or Withdrawing Partner to the Partnership or the other Partners.

Selection of Appraisers. The Partner requesting an appraisal pursuant If Landlord and Tenant are unable to Section 11.1 above agree on the Base Rent for that Extended Term within the thirty (hereinafter referred to as the “Submitting Partner”) shall, in its notice to the other Partner (hereinafter referred to as the “Receiving Partner”) state (i) with respect to an Event of Default, that it elects to have the fair market value of the Defaulting Partner‟s interest in the Partnership determined by the appraisal procedures set forth herein and the name of its appraiser, or (ii) with respect to a Withdrawal Event, that the fair market value of the Ownership Interest is to be determined by the appraisal procedures set forth herein and the name of its appraiser. Within ten (10) days after its receipt of such notice from the Submitting Partner, the Receiving Partner shall notify the Submitting Partner of the name of the Receiving Partner‟s appraiser. Upon appointment, the two appraisers shall agree to determine faithfully, fairly and within forty-five days (4530) day of the appointment of the second appraiser the fair market value of the Property. The two appraisers shall afford the Submitting Partner and the Receiving Partner the right to submit evidence with respect to such fair market value and shallperiod, with all possible speed, make their respective determinations in writing and give notice thereof to the Submitting Partner and the Receiving Partner. If the higher of the two appraisals determined by the two appraisers exceeds the lower appraisal by less than five percent (5%), the average of the fair market values so determined shall be controlling and shall be binding upon the Submitting Partner and the Receiving Partner. If the higher of the two appraisals exceeds the lower appraisal by more than five percent (5%), the appraisers, then within ten (10) business days after both the expiration of the appraisers have made their determinationsthirty (30) day period and provided that Tenant has timely exercised the subject renewal option in accordance with ¶ 29.b., Landlord and Tenant each at its own cost and by giving notice to the other party, shall appoint a competent and disinterested real estate appraiser with at least five (5) years full-time commercial appraisal experience in writing a third the Milpitas, California, market area to appraise the Fair Market Rental Value of the Premises and set the Base Rent for that Extended Term. If either Landlord or Tenant does not appoint an appraiser within said ten (10) business days, the single appraiser appointed shall be the sole appraiser and give written notice of such appointment shall set the Base Rent during that Extended Term. If two (2) appraisers are appointed by Landlord and Tenant as stated herein, they shall meet promptly and attempt to set the Submitting Partner and the Receiving PartnerBase Rent for that Extended Term. If the two (2) appraisers are unable to agree within thirty (30) days after the second appraiser has been appointed, they shall fail attempt to appoint or agree upon select a third appraiser meeting the same qualifications within ten (10) business days after the 10- last day periodthe two (2) appraisers are given to set the Base Rent. If they are unable to agree on the third appraiser, a third appraiser shall be selected either Landlord or Tenant, by the Submitting Partner and the Receiving Partner if they so agree upon such third appraiser within a further period of giving ten (10) days. If any appraiser shall not be appointed or agreed upon within ’ notice to the time herein providedother party, either the Submitting Partner or the Receiving Partner may can apply to the appropriate court then President of the State Real Estate Board or to the Presiding Judge of Texas the Superior Court of the County of Santa Cxxxx, for the appointment selection of such a third appraiser who meets the qualifications stated herein. Landlord and Tenant each shall bear one-half (1/2) of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser appraiser, however selected, shall be sworn to determine faithfully and fullya person who has not previously acted in any capacity for either Landlord or Tenant, pursuant to the procedures set forth above, the fair market value of the Property. The third appraiser‟s determination of value shall be controlling unless it is higher (or lower than the higher (or lower) determination of value of the original two appraisers, in which case such previous high (or low) determination shall be controlling and binding upon the Partners. The decision of the appraisers under this Section shall be final and binding on the Partners and shall be specifically enforceable in a court having jurisdiction. The fair market value of the Defaulting Partner‟s or Withdrawing Party‟s Ownership Interest shall be the amount such Partner would receive upon a sale of the Property by the Partnership at its fair market value as determined by the appraisers pursuant hereto, taking into account the distribution priorities set forth in Section 4.1 above, and after payment of all debts and liabilities of the Defaulting Partner or Withdrawing Partner to the Partnership or the other Partnerstheir affiliates.

Selection of Appraisers. The Partner requesting an appraisal pursuant If Lessor and Lessee are unable to Section 11.1 above (hereinafter referred to as mutually agree upon the “Submitting Partner”) shall, in its notice to the other Partner (hereinafter referred to as the “Receiving Partner”) state (i) with respect to an Event of Default, that it elects to have the fair market value Prevailing Market Rental Rate of the Defaulting Partner‟s interest in the Partnership determined by the appraisal procedures set forth herein and the name of its appraiser, or (ii) with respect to a Withdrawal Event, that the fair market value of the Ownership Interest is to be determined by the appraisal procedures set forth herein and the name of its appraiser. Within Premises within ten (10) days after its receipt delivery by Lessor of such the notice from set forth in Section 7 (the Submitting Partner“Notice Date”), the Receiving Partner then Lessor and Lessee each shall select an appraiser and notify the Submitting Partner other of the name of the Receiving Partner‟s appraiser selected within twenty (20) days after the Notice Date. (In the event Lessor and Lessee can agree upon a single appraiser, such appraiser’s determination shall be final and binding upon the parties). Upon appointment, the two appraisers shall agree be sworn to determine faithfully, faithfully and fairly and within forty-five days (45) day the Prevailing Market Rental Rate of the appointment of the second appraiser the fair market value of the PropertyPremises. The two appraisers shall afford the Submitting Partner Lessor and the Receiving Partner Lessee the right to submit evidence with respect to such fair market value the Prevailing Market Rental Rate of the Premises, and shall, with all possible speed, make their respective determinations in writing and give notice thereof to the Submitting Partner Lessor and the Receiving PartnerLessee. If the higher there is a variance of the two appraisals determined by the two appraisers exceeds the lower appraisal by less than five percent (5%)) in the Prevailing Market Rental Rate of the Premises determined by the two appraisers, the average of the fair market values so determined shall be controlling and shall be binding upon the Submitting Partner Lessor and the Receiving PartnerLessee. If the higher there is a variance of the two appraisals exceeds the lower appraisal by more than five percent (5%)) in the Prevailing Market Rental Rate of the Premises determined by the two appraisers, the appraisers, within ten (10) days after both of the appraisers have made their determinations, shall appoint in writing a third appraiser and shall give written notice of such appointment to the Submitting Partner Lessor and the Receiving PartnerLessee. If the two appraisers shall fail to appoint or agree upon a third appraiser within the 10- ten (10) day period, a third appraiser shall be selected by the Submitting Partner Lessor and the Receiving Partner Lessee if they so agree upon such third appraiser within a further period of ten (10) days. If any appraiser shall not be appointed or agreed upon within the time herein provided, either the Submitting Partner Lessor or the Receiving Partner Lessee may apply to the appropriate court Presiding Judge of the State of Texas Administrative Judicial District encompassing Collin County, Texas, for the appointment of such appraiser. The third appraiser shall be sworn to determine faithfully and fully, pursuant to the procedures set forth above, the fair market value Prevailing Market Rental Rate of the PropertyPremises. The third appraiser‟s appraiser’s determination of value the Prevailing Market Rental Rate of the Premises shall be controlling unless it is higher (or lower lower) than the higher (or lower) determination of value the Prevailing Market Rental Rate of the Premises as determined by the original two appraisers, in which case such previous high (or low) determination shall be controlling and binding upon the PartnersLessor and Lessee. The decision of the appraisers under this Section subparagraph shall be final and binding on the Partners Lessor and Lessee and shall be specifically enforceable in a court having jurisdiction. The fair market value of the Defaulting Partner‟s or Withdrawing Party‟s Ownership Interest All appraisers selected pursuant to this Section 8 shall be the amount such Partner would receive upon a sale of the Property by the Partnership at its fair market value as determined by the appraisers pursuant hereto, taking into account the distribution priorities set forth in Section 4.1 above, and after payment of all debts and liabilities of the Defaulting Partner or Withdrawing Partner to the Partnership or the other PartnersMAI appraisers.

Selection of Appraisers. The Where the purchase price for the Interests(s) of any Partner requesting an appraisal being sold pursuant to this Article XX is to be determined, the Partners shall attempt to agree on such price for the Interest (the “FMV Price”), and if the Partners are unable to agree upon the FMV Price within 21 days after the Notice is given pursuant to Section 11.1 above 20.1 (hereinafter referred to as the “Submitting PartnerFMV Price Outside Date”) shall), in its notice the FMV Price shall be determined pursuant to this Section 20.5. For purposes of this Section 20.5, the FMV Price shall be the price at which a hypothetical unrelated willing buyer and seller, neither of which is under any compulsion to act, would agree to the other Partner (hereinafter referred purchase and sale of the Interest(s) at issue. 20.5.1 Each appraiser selected pursuant to as this Section 20.5 shall be an independent appraiser who is a member of the “Receiving Partner”) state (i) American Appraisal Institute with respect to an Event at least 10 years of Default, that it elects to have experience in appraising commercial real estate and who has within the fair last 2 years appraised office buildings having a market value of $50 million or more in one or more of the Defaulting Partner‟s interest in Target Markets (a “Qualified Appraiser”). 20.5.2 In the Partnership determined event the Partners cannot agree upon the FMV Price by the appraisal procedures set forth herein FMV Price Outside Date, then, within ten (10) days after the FMV Price Outside Date, the Partners, together, shall appoint a Qualified Appraiser (“Arbitrating Appraiser”) and shall upon such appointment submit to the name of its appraiser, or (ii) with respect to a Withdrawal Event, that the fair market value Arbitrating Appraiser their respective determinations of the Ownership Interest is to be determined by the appraisal procedures set forth herein and the name of its appraiserFMV Price. Within ten (10) days after its appointment and receipt of the written determination of FMV Price from each Partner, the Arbitrating Appraiser shall select, without modification or qualification, one of the two written determinations of the FMV Price submitted by the Partners as the FMV Price for the purposes of this Agreement. In the event that the Partners are unable to agree on a Qualified Appraiser to serve as the Arbitrating Appraiser in the specified 10-day period, then within 10 days after the end of that 10-day period, each Partner shall appoint a Qualified Appraiser and the 2 Qualified Appraisers so selected, within 5 days after both have been appointed, shall then select a Qualified Appraiser to serve as the Arbitrating Appraiser hereunder. If a Partner shall fail or refuse to deliver to the Arbitrating Appraiser its written determination of the FMV Price and such failure or refusal shall continue for 2 business days after written notice from the Submitting other Partner, then the Receiving Partner Qualified Appraiser shall notify be authorized to select the Submitting Partner of written determination submitted by the name of the Receiving Partner‟s appraiser. Upon appointment, the two appraisers shall agree to determine faithfully, fairly and within forty-five days (45) day of the appointment of the second appraiser the fair market value of the Property. The two appraisers shall afford the Submitting Partner and the Receiving Partner the right to submit evidence with respect to such fair market value and shall, with all possible speed, make their respective determinations in writing and give notice thereof to the Submitting Partner and the Receiving other Partner. If a Partner shall fail or refuse to appoint a Qualified Appraiser for the higher purpose of selecting an Arbitrating Appraiser (because the two appraisals determined Partners were unable to agree on an Arbitrating Appraiser as provided above), then the Qualified Appraiser appointed by the two appraisers exceeds the lower appraisal by less than five percent (5%), the average of the fair market values so determined other Partner shall be controlling and shall be binding upon the Submitting Partner and the Receiving Partner. If the higher of the two appraisals exceeds the lower appraisal by more than five percent (5%), the appraisers, within ten (10) days after both of the appraisers have made their determinations, shall appoint in writing a third appraiser and give written notice of such appointment to the Submitting Partner and the Receiving Partner. If the two appraisers shall fail to appoint or agree upon a third appraiser within the 10- day period, a third appraiser shall be selected by the Submitting Partner and the Receiving Partner if they so agree upon such third appraiser within a further period of ten (10) days. If any appraiser shall not be appointed or agreed upon within the time herein provided, either the Submitting Partner or the Receiving Partner may apply to the appropriate court of the State of Texas for the appointment of such appraiser. The third appraiser shall be sworn authorized to determine faithfully and fully, pursuant to the procedures set forth above, the fair market value of the Property. The third appraiser‟s determination of value shall be controlling unless it is higher (or lower than the higher (or lower) determination of value of the original two appraisers, in which case such previous high (or low) determination shall be controlling and binding upon the Partners. The decision of the appraisers under this Section shall be final and binding on the Partners and shall be specifically enforceable in a court having jurisdiction. The fair market value of the Defaulting Partner‟s or Withdrawing Party‟s Ownership Interest shall be the amount such Partner would receive upon a sale of the Property by the Partnership at its fair market value as determined by the appraisers pursuant hereto, taking into account the distribution priorities set forth in Section 4.1 above, and after payment of all debts and liabilities of the Defaulting Partner or Withdrawing Partner to the Partnership or the other PartnersFMV Price.

Selection of Appraisers. If, pursuant to Section 2, the parties cannot agree on the fair market value of any Non-monetary Consideration, then either party may, by delivering a written notice to the other (the “Appraisal Notice”) within 5 days following the date on which the Redemption Notice is delivered pursuant to the applicable section, invoke the provisions of this Section 3(b) to determine the fair market value of the Non-monetary Consideration. The Partner Shareholder(s) requesting an appraisal pursuant to this Section 11.1 above 3(b) (hereinafter referred to collectively as the “Submitting PartnerShareholder”) shall, in its notice the Appraisal Notice to the other Partner Shareholder(s) (hereinafter referred to collectively as the “Receiving PartnerShareholder”) state (i) with respect to an Event of Default, that it the Submitting Shareholder elects to have the fair market value of the Defaulting Partner‟s interest in the Partnership determined by the appraisal procedures set forth herein and the name of its appraiser, or (ii) with respect to a Withdrawal Event, that the fair market value of the Ownership Interest is to be Non-monetary Consideration determined by the appraisal procedures set forth herein and the name of its appraiser. Within ten (10) 5 days after its receipt of such notice from the Submitting PartnerShareholder, the Receiving Partner Shareholder shall notify the Submitting Partner Shareholder of the name of the Receiving Partner‟s its appraiser. Upon appointment, the two appraisers shall agree be sworn to determine faithfully, fairly and within forty-five 30 days (45) day of the appointment of the second appraiser the fair market value of the PropertySubject Shares or the Non-monetary Consideration, as the case may be. The two appraisers shall afford the Submitting Partner Shareholder and the Receiving Partner Shareholder the right to submit evidence with respect to such fair market value and shall, with all possible speedas promptly as practicable, make their respective determinations in writing and give notice thereof to the Submitting Partner Shareholder and the Receiving PartnerShareholder. If the higher of the two appraisals determined by the two appraisers exceeds the lower appraisal by less than five percent (510%), the average of the fair market values so determined shall be controlling and shall be binding upon the Submitting Partner Shareholder and the Receiving PartnerShareholder. If the higher of the two appraisals exceeds the lower appraisal by more than five percent (510%), the appraisers, within ten (10) 10 days after both of the appraisers have made their determinations, shall appoint in writing a third appraiser and give written notice of such appointment to the Submitting Partner Shareholder and the Receiving PartnerShareholder. If the two appraisers shall fail to appoint or agree upon a third appraiser within the 10- 10-day period, a third appraiser shall be selected by the Submitting Partner Shareholder and the Receiving Partner Shareholder if they so agree upon such third appraiser within a further period of ten (10) 10 days. If any appraiser shall not be appointed or agreed upon within the time herein provided, either the Submitting Partner or the Receiving Partner party may apply to the appropriate court of the State of Texas for the appointment of such appraiser. The third appraiser shall be sworn to determine faithfully and fully, pursuant to and independently of the procedures set forth abovefirst two appraisals, the fair market value of the PropertyNon-monetary Consideration, as the case may be. The third appraiser‟s appraiser’s determination of value shall be controlling unless it is higher (than the higher or lower than the higher (or lower) lower determination of value of the original two appraisers, in which case such previous high (or low) determination low determination, respectively, shall be controlling and binding upon the Partnersparties. The decision of the appraisers under pursuant to this Section 3(b) shall be final and binding on upon the Partners parties and shall be specifically enforceable in a court having jurisdiction. The fair market value of the Defaulting Partner‟s or Withdrawing Party‟s Ownership Interest shall be the amount such Partner would receive upon a sale of the Property by the Partnership at its fair market value as determined by the appraisers pursuant hereto, taking into account the distribution priorities set forth in Section 4.1 above, and after payment of all debts and liabilities of the Defaulting Partner or Withdrawing Partner to the Partnership or the other Partners.

Selection of Appraisers. The A Partner requesting an appraisal pursuant to Section 11.1 above hereunder (hereinafter referred to as the “"Submitting Partner”") shall, in its shall serve notice to the other Partners who are not Affiliates of such Partner (hereinafter referred to as the “"Receiving Partner”Partners") state (i) with respect to an Event of Default, stating that it elects to have the fair market value of the Defaulting Partner‟s interest in the Partnership determined by the appraisal procedures set forth herein and the name of its appraiser, or (ii) with respect to a Withdrawal Event, that the fair market value of the Ownership Interest is purchase price to be paid pursuant to Section 10.5 or 11.1(b) determined by the appraisal procedures set forth herein and the name of its appraiser. Within ten (10) days after its receipt of such notice from the Submitting Partner, the Receiving Partner Partners shall notify the Submitting Partner of the name of the Receiving Partner‟s their appraiser. Upon appointment, the two appraisers shall agree be sworn to determine faithfully, faithfully and fairly and within forty-five days (45) day of the appointment of the second appraiser the fair market value price of each appropriate Partner's interest in the PropertyPartnership, or the assets attributable thereto. The Partners shall cooperate with, submit relevant information to, and meet with the appraisers as reasonably requested. The two appraisers shall afford the Submitting Partner and the Receiving Partner Partners the right to submit evidence with respect to such fair market value the price to be determined and shall, with all possible speed, make their respective determinations in writing and give notice thereof to the Submitting Partner and the Receiving PartnerPartners. If there is a variance equal to or less than ten percent in the higher of the two appraisals fair market prices determined by the two appraisers exceeds the lower appraisal by less than five percent (5%)appraisers, the average of the fair market values prices so determined shall be controlling and shall be binding upon the Submitting Partner and the Receiving PartnerPartners. If there is a variance of more than ten percent in the higher of fair market prices determined by the two appraisals exceeds the lower appraisal by more than five percent (5%)appraisers, the appraisers, within ten (10) days after both of the appraisers have made their determinations, shall appoint in writing a third appraiser and give written notice of such appointment to the Submitting Partner and the Receiving PartnerPartners. If the two appraisers shall fail to appoint or agree upon a third appraiser within the 10- ten day period, a third appraiser shall be selected by the Submitting Partner and the Receiving Partner Partners if they so agree upon such third appraiser within a further period of ten (10) days. If any a third appraiser shall not be appointed or agreed upon within the time herein provided, either the Submitting Partner or the Receiving Partner Partners may apply to the appropriate court of the State of Texas for the appointment of such appraiserprocedure set forth in Section 12.2. The third appraiser shall be sworn to determine faithfully and fully, pursuant to the procedures set forth above, the fair market value of the Propertyquestion at issue. The third appraiser‟s appraiser's determination of value price shall be controlling unless it is higher (or lower lower) than the higher (or lower) determination of value price of the original two appraisers, in which case such previous high (or low) determination shall be controlling and binding upon the Partners. The decision of the appraisers under this Section shall be final and binding on the Partners and shall be specifically enforceable in a court having jurisdiction. The fair market value of the Defaulting Partner‟s or Withdrawing Party‟s Ownership Interest shall be the amount such Partner would receive upon a sale of the Property by the Partnership at its fair market value as determined by the appraisers pursuant hereto, taking into account the distribution priorities set forth in Section 4.1 above, and after payment of all debts and liabilities of the Defaulting Partner or Withdrawing Partner to the Partnership or the other Partners.