Common use of Appraisal Procedure Clause in Contracts

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 13 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining If it becomes necessary to determine the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee or more the Facilities for any purpose of this Lease and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers parties cannot agree within twenty (20) days after both shall have been appointedthereon, then a third appraiser such Fair Market Value shall be selected determined upon the written demand of either party in accordance with the following procedure: (i) The party requesting an appraisal, by the two (2) appraisers or, failing agreement as to such third appraiser Notice given within thirty (30) days after both the date of the event that requires or permits such procedure, shall propose and unilaterally approve an appraiser licensed to perform MAI appraisals and experienced in the valuation of assisted living, independent living or skilled nursing facilities (a "Qualified Appraiser"). The other party, by Notice given within fifteen (15) days after receipt of such Notice appointing the first Qualified Appraiser, may appoint a second Qualified Appraiser. If the other party fails to appoint the second Qualified Appraiser within such fifteen (15) day period, such party shall have been appointedwaived its right to appoint a Qualified Appraiser, and the first Qualified Appraiser shall make the sole determination of the Fair Market Value. (ii) The selected Qualified Appraiser or Appraisers shall thereupon determine the Fair Market Value of the applicable Leased Property or Leased Properties. Each such Qualified Appraiser shall, within thirty (30) days following its appointment, submit its appraisal of such fair market value to each of Landlord and Tenant in writing, and if the amounts set forth in such appraisals vary by five percent (5%) or less of the greater value, the Fair Market Value of the applicable Leased Property or Leased Properties shall be determined by calculating the average of the two determinations by the two appraisers. (iii) If the fair market values set forth in the two appraisals vary by more than five percent (5%) of the greater of the two values, the two Qualified Appraisers shall select a third Qualified Appraiser within an additional fifteen (15) days following the submittal of the last appraisal. If the two appraisers are unable to agree upon the appointment of a third appraiser within such fifteen (15) day period, either party may, upon written notice to the other, request that such appointment be made by the then President (or equivalent officer) of the Chapter of the American Institute of Real Estate Appraisers in the Facility State for each of the applicable Leased Properties, or his or her designee or, if there is no such organization or if such individual declines to make such appointment, by any state or Federal court of competent jurisdiction for the American Arbitration Association. The decisions Facility State for each of the three applicable Leased Properties. (3iv) appraisers shall be given within Within twenty (20) days of the appointment of following its selection, the third appraiser and shall review the decision of the appraiser most different from the average of the other two (2) appraisals and select the appraisal that it determines most clearly reflects the fair market value. The selected fair market value shall then be the Fair Market Value of the applicable Leased Property or Leased Properties. (v) In connection with the appraisal process, Tenant shall provide the appraisers full access during normal business hours to examine the applicable Facility or Facilities, the books, records and files of Tenant and all agreements, leases and other operating agreements relating to the applicable Facility or Facilities. The costs of each party's appraisal shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if borne by the highest appraisal selecting party and the lowest appraisal are equidistant from the third appraisal, cost of the third appraisal shall be binding on Lessor shared equally. Upon determining such value, the appraisers shall promptly notify Landlord and LesseeTenant in writing of such determination. The fees and expenses determination of the appraiser appointed by Lessee Qualified Appraisers made in accordance with the foregoing provisions shall be paid by Lessee; final and binding upon the fees parties, such determination may be entered as an award in arbitration in a court of competent jurisdiction, and expenses of the appraiser appointed by Lessor shall judgment thereon may be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorentered.

Appraisal Procedure. For determining If any party shall initiate an appraisal procedure to determine the Fair Market Sales Value amount of the Properties or any other amount which may, pursuant to any provision cash equivalent of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"consideration for Subject Shares under Section 3(b)(v). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed Transferor, on the one hand, and the Purchaser, on the other hand, shall each promptly appoint as an appraiser an individual who shall be binding on Lessee and Lessora member of a nationally-recognized investment banking firm. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointedEach appraiser shall, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointedof appointment, by separately investigate the American Arbitration Association. The decisions value of the three (3) appraisers consideration for the Subject Shares as of the proposed transfer date and shall submit a notice of an appraisal of that value to each party. Each appraiser shall be given instructed to determine such value without regard to income tax consequences to the Transferor as a result of receiving cash rather than other consideration. If the appraised values of such consideration (the "Earlier Appraisals") vary by less than ten percent (10%), the average of the two appraisals on a per share basis shall be controlling as the amount of the cash equivalent. If the appraised values vary by more than ten percent (10%), the appraisers, within twenty ten (2010) days of the appointment submission of the last appraisal, shall appoint a third appraiser who shall be member of a nationally recognized investment banking firm. The third appraiser shall, within thirty (30) days of his appointment, appraise the value of the consideration for the Subject Shares (without regard to the income tax consequences to the Transferor as a result of receiving cash rather than other consideration) as of the proposed transfer date and submit notice of his appraisal to each party. The value determined by the third appraiser shall be controlling as the amount of the cash equivalent unless the value is greater than the two Earlier Appraisals, in which case the higher of the two Earlier Appraisals will control, and unless that value is lower than the two Earlier Appraisals, in which case the lower of the two Earlier Appraisals will control. If any party fails to appoint an appraiser or if one of the two initial appraisers fails after appointment to submit his appraisal within the required period, the appraisal submitted by the remaining appraiser shall be controlling. The Transferor and the decision Purchaser shall each bear the cost of the appraiser most different from the average its respective appointed appraiser. The cost of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor shared one-half by the Transferor and Lessee. The fees and expenses of one-half by the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorPurchaser.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties any Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "“Appraisal Procedure"”). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appraisers appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorLessee.

Appraisal Procedure. For determining In the Fair Market Sales Value event the General Partners are unable to mutually agree upon the net fair market value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of Partnership assets within ten (10) days from commencement of the Appraisal Procedure under date the applicable section appraisal procedure of this Article X is instituted as provided in this Agreement, they shall each select one appraiser to determine the net fair market value of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party Partnership assets as of the selection of its appraiser, then date the appraisal by such appointed procedure is instituted. Each appraiser so selected shall be binding on Lessee furnish the Partners and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then certified public accountants for the Partnership or hired for purposes of the subject determination only with a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser written appraisal within thirty (30) days after both shall have been appointedof his or her selection, by the American Arbitration Association. The decisions setting forth his or her determination of the three (3) appraisers net fair market value. If only one appraisal is submitted within the requisite time period, the determination of the fair market value of the Partnership pursuant to such appraisal shall be given final and binding on the Partners. If both appraisals are submitted within twenty (20) days such time period, and of the appointment two appraisals so submitted differ by less than five percent (5%) of the third appraiser and the decision lower of the appraiser most different from two, the average of the other two (2) shall be discarded the determination of fair market value and shall be final and binding on the Partners. If the two appraisals differ by more than five percent (5%) of the lower of the two, then the two appraisers shall immediately select a third appraiser who shall within sixty (60) days after his or her selection make a determination of the fair market value of the Partnership assets and submit such determination to the Partners and such average certified public accountants. The third appraisal will then be averaged with the closer of the two previous appraisals and the result shall be the determination of fair market value and shall be final and binding on Lessor and Lessee; providedthe Partners, that if unless the highest appraisal and the lowest appraisal are equidistant first two appraisals differ from the third appraisalappraisal by the same amount, in which case the determination of the fair market value pursuant to the third appraisal shall be final and binding on Lessor and Lesseethe Partners. All appraisers appointed pursuant to this Article X shall be Partners of the American Institute of Real Estate Appraisers with not less than ten (10) years’ experience appraising projects similar to the Project. The fees and expenses cost of the appraiser appointed by Lessee appraisals shall be paid by Lessee; the fees and expenses an expense of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified Partnership, except that if the appraisal procedure is instituted pursuant to Section 11 8.3, the cost shall be an expense of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorDefaulting Partner.

Appraisal Procedure. For determining In the event that Tenant elects to determine the Fair Market Sales Rental Value pursuant to an Appraisal process, the Appraisal shall be conducted as follows: (a) Tenant shall make a demand for an Appraisal in writing in accordance with Paragraph 53.4 above, wherein Tenant shall specify the name and address of the Properties person to act as the appraiser on its behalf. The appraiser shall be either (A) qualified as a real estate appraiser (and shall be a member of the American Institute of Real Estate Appraisers (MAI) or any other amount which maycomparable successor organization), pursuant to any provision of any Operative Agreementor (B) a licensed real estate broker, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of in either case with at least ten (10) days from commencement years professional experience in appraising or leasing (as applicable) commercial properties in Boulder and Broomfield Counties, Colorado. Failure on the part of Tenant to make a proper appointment in a timely manner for such Appraisal shall constitute a waiver of the Appraisal Procedure under right thereto. Within fifteen (15) days after the applicable section service of the Leasedemand for such Appraisal, Landlord shall give notice to Tenant, specifying the name and if they cannot agree within ten address of the person designated by Landlord to act as the appraiser on its behalf who shall be similarly qualified. (10b) days, then In the event that two (2) qualified appraisersappraisers are chosen pursuant to Paragraph 53.5(a) above, one the appraisers so chosen shall, within fifteen (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (2015) days after notice from the other party of second appraiser is appointed, determine the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and LessorFair Market Rental Value. If the two (2) appraisers cannot are unable to agree upon a determination of Fair Market Rental Value within twenty such fifteen (2015) day period, they, themselves, shall appoint a third (3rd) appraiser, who shall be a competent and impartial person with qualifications the same as required of the first two (2) appraisers pursuant to Paragraph 53.5(a) above. In the event they are unable to agree upon such appointment within seven (7) days after both shall have been appointedexpiration of said fifteen (15) day period, then a the third (3rd) appraiser shall be selected by the Parties themselves, if they can agree thereon, within a further period of ten (10) days. If the Parties do not so agree, then either Party, on behalf of both, may request appointment of such a qualified person by the then Presiding Judge of the Superior Court in and for the County of Boulder, Colorado, acting in his private and not in his official capacity, and the other Party shall not raise any question as to such Judge’s full power and jurisdiction to entertain the application for and make the appointment. (c) Where the Fair Market Rental Value cannot be resolved by agreement between the two (2) appraisers orselected by Landlord and Tenant or settlement between the Parties during the course of the Appraisal process, failing agreement as to such third appraiser within thirty (30) days after both the Fair Market Rental Value shall have been appointed, be determined by the American Arbitration Association. The decisions of the three appraisers within fifteen (3) appraisers shall be given within twenty (2015) days of the appointment of the third (3rd) appraiser and in accordance with the following procedure: The appraiser selected by each of the Parties shall state in writing his or her determination of the Fair Market Rental Value supported by the reasons therefor with counterpart copies to each Party. The appraisers shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third (3rd) appraiser shall be to select which of the two (2) proposed resolutions more closely approximates his or her determination of the Fair Market Rental Value. The third (3rd) appraiser shall have no right to propose a middle ground or any modification of either of the two (2) proposed resolutions. The resolution he or she chooses as more closely approximating his or her determination shall constitute the decision of the appraisers and be final and binding upon the Parties. (d) In the event of a failure, refusal or inability of any appraiser most different from to act, his or her successor shall be appointed by him or her, but in the average case of the other two third (23rd) appraiser, his or her successor shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if appointed in the highest appraisal and the lowest appraisal are equidistant from same manner as provided for appointment of the third appraisal, the third appraisal shall be binding on Lessor and Lessee(3rd) appraiser. The fees and expenses of Any decision in which the appraiser appointed by Lessee shall be paid by Lessee; the fees Landlord and expenses of the appraiser appointed by Lessor Tenant concur shall be paid by Lessor (such fees binding and conclusive upon the Parties. Each Party shall pay the fee and expenses not being indemnified pursuant to Section 11 of its respective appraiser and both shall share the Participation Agreement); and the fees fee and expenses of the third appraiser shall be divided equally between Lessee and Lessor(3rd) appraiser, if any.

Appraisal Procedure. For determining In the event that it becomes necessary to determine the Fair Market Sales Value, Fair Market Value Purchase Price or Fair Market Rental of the Properties Leased Property or a Substitute Property for any other amount which maypurpose of this Lease, pursuant the party required or permitted to any provision give notice of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure such required determination (the "Appraisal ProcedureInitiating Party")) shall include in such notice the name of a designated Qualified Appraiser (hereinafter defined) on its behalf. Lessor and Lessee Within 10 days after notice, the party receiving such notice (the "Responding Party") shall, by written notice to the other, appoint a second Qualified Appraiser. If the Responding Party shall endeavor fail, neglect or refuse within said ten-day period to reach a mutual agreement as designate another appraiser willing so to such amount for a period of act, the appraiser designated by the Initiating Party shall designate the second Qualified Appraiser within ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree thereafter. The two appraisers so designated shall meet within ten (10) daysdays after the second appraiser is designated, then two and, if within ten (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (2010) days after notice from the other party second appraiser is designated, the two appraisers do not agree upon the Fair Market Value, Fair Market Value Purchase Price or Fair Market Rental, as the case may be, of the selection applicable property as of its appraiserthe relevant date, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two appraisers shall designate a third Qualified Appraiser, within ten (2) appraisers cannot agree within twenty (2010) days after both shall have been appointed, then thereafter. In the event that the two appraisers are unable to agree upon the appointment of a third Qualified Appraiser within such ten (10) day period, either Landlord or Tenant, on behalf of both, may then request appointment of such appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by then president of the American Arbitration Association. The decisions In the event of the three (3) appraisers a failure, refusal or inability of any appraiser to act, a new appraiser shall be given within twenty (20) days of appointed in his stead, which appointment shall be made in the same manner as hereinabove provided for the appointment of such appraiser so failing, refusing or being unable to act. In the third event that all appraisers cannot agree upon such value ten (10) days as aforesaid, each appraiser shall submit his appraisal of such value to the other two appraisers in writing, and the decision of the appraiser most different from such value shall be determined by calculating the average of the other two numerically closest (2) shall be discarded and such average shall be binding on Lessor and Lessee; providedor, that if the highest appraisal and values are equidistant, all three) values determined by the lowest appraisal are equidistant from the third appraisalthree appraisers. The costs, the third other than counsel fees, of such appraisal shall be binding on Lessor borne equally by the parties. Upon determining such value, the appraisers shall promptly notify Landlord and LesseeTenant in writing of such determination. If any party shall fail to appear at the hearings appointed by the appraisers, the appraisers may act in the absence of such party. The fees and expenses determination of the appraiser appointed by Lessee board of appraisers (or the single additional Qualified Appraiser, as appropriate) made in accordance with the foregoing provisions shall be paid by Lessee; final and binding upon the fees parties, such determination may be entered as an award in arbitration in a court of competent jurisdiction, and expenses of the appraiser appointed by Lessor shall judgment thereon may be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorentered.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to ------------------- reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal -------- and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 13 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining In the event that it becomes necessary to determine the Fair Market Sales Value of the Properties Facilities or any other amount which may, pursuant to Facility for any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor purpose described in this Agreement and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they parties cannot agree within ten (10) daysthereon, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, such Fair Market Value shall mutually agree thereupon, but if be determined upon the written demand of either party shall fail to choose in accordance with the following procedure: (i) The party requesting an appraiser within twenty (20) days after notice from the other party of the selection of its appraiserappraisal, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser Notice given within thirty (30) days after both the date of the event that requires or permits such procedure, shall propose and unilaterally approve an appraiser licensed to perform MAI appraisals and experienced in the valuation of assisted living, independent living or skilled nursing facilities (a "Qualified Appraiser"). The other party, by Notice given within fifteen (15) days after receipt of such Notice appointing the first Qualified Appraiser, may appoint a second Qualified Appraiser. If the other party fails to appoint the second Qualified Appraiser within such fifteen (15) day period, such party shall have been appointedwaived its right to appoint a Qualified Appraiser, and the first Qualified Appraiser shall make the sole determination of the Fair Market Value. (ii) The selected Qualified Appraiser or Appraisers shall thereupon determine the Fair Market Value. Each such Qualified Appraiser shall, within thirty (30) days following its appointment, submit its appraisal of fair market value to each of PSLT-BLC Holdings and BLC Holdings in writing, and if the fair market values set forth in such appraisals vary by five percent (5%) or less of the greater value, the Fair Market Value shall be determined by calculating the average of the two fair market values determined by the two appraisers. (iii) If the fair market values set forth in the two appraisals vary by more than five percent (5%) of the greater of the two values, the two Qualified Appraisers shall select a third Qualified Appraiser within an additional fifteen (15) days following the submittal of the last appraisal. If the two appraisers are unable to agree upon the appointment of a third appraiser within such fifteen (15) day period, either party may, upon written notice to the other, request that such appointment be made by the then President (or equivalent officer) of the Chapter of the American Institute of Real Estate Appraisers in the Facility State, or his or her designee or, if there is no such organization or if such individual declines to make such appointment, by any state or Federal court of competent jurisdiction for the American Arbitration Association. The decisions of the three Facility State. (3iv) appraisers shall be given within Within twenty (20) days of the appointment of following his selection, the third appraiser and shall review the decision of the appraiser most different from the average of the other two (2) appraisals and select the appraisal that he determines most clearly reflects the Fair Market Value. The selected Fair Market Value shall then be the Fair Market Value for purposes of this Agreement. (v) In connection with the appraisal process, BLC Holdings shall provide the appraisers full access during normal business hours to examine the Facilities, the books, records and files of BLC Holdings and the Brookdale Lessees and all agreements, leases and other operating agreements relating to the Facilities. The costs of each party's appraisal shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if borne by the highest appraisal selecting party and the lowest appraisal are equidistant from the third appraisal, cost of the third appraisal shall be binding on Lessor shared equally. Upon determining such value, the appraisers shall promptly notify PSLT-BLC Holdings and LesseeBLC Holdings in writing of such determination. The fees and expenses determination of the appraiser appointed by Lessee Qualified Appraisers made in accordance with the foregoing provisions shall be paid by Lessee; final and binding upon the fees parties, such determination may be entered as an award in arbitration in a court of competent jurisdiction, and expenses of the appraiser appointed by Lessor shall judgment thereon may be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorentered.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "“Appraisal Procedure"”). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section Section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation AgreementAgreement or otherwise by Lessee pursuant to the Operative Agreements); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "“Appraisal Procedure"”). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such the appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such the average of the remaining appraisals shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties a Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties any Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, PROVIDED that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 SECTION 13 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. (i) For determining the Fair Market Sales Value purposes of subsection (a) of this Section 10.4, the “Appraised Value” of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, Marcus Interest shall be determined by an appraisal procedure, Lessor and Lessee shall use in the following procedure manner: (the "Appraisal Procedure"). Lessor and Lessee i) all appraisers shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement be members of the Appraisal Procedure under the applicable section of the LeaseInstitute or any organization successor thereto; (ii) Managing Member shall, and if they cannot agree within ten (10) daysBusiness Days after the delivery of the Put Price Dispute Notice, then two appoint an appraiser and give notice of such appointment to Operator; (2iii) qualified appraiserswithin twenty (20) days after the receipt of the Put Price Dispute Notice, one (1) chosen by Lessee Operator shall appoint a second appraiser and one (1) chosen by Lessorgive notice of the appointment to Managing Member; provided, shall mutually agree thereuponhowever, but if either party shall fail Operator fails to choose an appoint a second appraiser within twenty (20) days after notice from the other party receipt of the selection of its appraiserPut Price Dispute Notice, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee Managing Member shall proceed to make his/her appraisal of the fair market value of the Marcus Interest (valued as of the Termination Date), and the Appraised Value shall be paid the amount determined by Lesseethe first appraiser; (iv) each appraiser shall make an independent written appraisal; and (v) the fees and expenses of the appraiser appointed by Lessor first two appraisals shall be paid borne by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of Operator or the Participation Agreement); Company, as applicable based on the party selecting the appraiser, and the fees and expenses expense of the any third appraiser appraisal shall be divided equally between Lessee Operator and Lessorthe Company. (ii) If the two appraisers so appointed agree on the Appraised Value, the Appraised Value shall be the amount determined by them. If the two appraisers so appointed do not agree on the Appraised Value, but the difference between the Appraised Value determined by each appraiser is not more than five percent (5%) of the lower of the two appraisals, then the Appraised Value shall be an amount equal to the quotient obtained by dividing (A) the sum of the Appraised Values determined by each appraiser, by (B) two (2). If the two appraisers so appointed do not agree on the Appraised Value, and if the difference between the Appraised Values determined by each appraiser is more than five percent (5%) of the lower of the two appraisals, then the two appraisers shall jointly appoint a third appraiser. If the first two appraisers so appointed shall be unable to agree on the appointment of a third appraiser within ten (10) days after their respective determinations of the Appraised Value, then they shall give written notice of such failure to agree to Operator and Managing Member. If Operator and Managing Member fail to agree on the selection of a third appraiser within ten (10) days after the first two appraisers appointed give such notice, then within fifteen (15) days thereafter, either party, upon written notice to the other, may request such appointment by the then-existing President of the Appraisal Institute (or any other organization successor thereto), or in his/her failure to act, may apply for such appointment to the United States District Court for

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties any Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 13 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining If it becomes necessary to determine the Fair Market Sales Lease Rate or the Fair Market Value of the Properties or Facility for any other amount which may, pursuant to any provision purpose of any Operative Agreement, be determined by an appraisal procedure, Lessor this Lease and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they parties cannot agree within ten (10) daysthereon, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, such calculation shall mutually agree thereupon, but if be determined upon the written demand of either party shall fail to choose in accordance with the following procedure: (i) The party requesting an appraiser within twenty (20) days after notice from the other party of the selection of its appraiserappraisal, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser Notice given within thirty (30) days after both the date of the event that requires or permits such procedure, shall propose and unilaterally approve an appraiser licensed to perform MAI appraisals and experienced in the valuation of assisted living, independent living or skilled nursing facilities (a "Qualified Appraiser"). The other party, by Notice given within fifteen (15) days after receipt of such Notice appointing the first Qualified Appraiser, may appoint a second Qualified Appraiser. If the other party fails to appoint the second Qualified Appraiser within such fifteen (15) day period, such party shall have been appointedwaived its right to appoint a Qualified Appraiser, and the first Qualified Appraiser shall make the sole determination of the Fair Market Lease Rate or the Fair Market Value. (ii) The selected Qualified Appraiser or Appraisers shall thereupon determine the Fair Market Lease Rate or the Fair Market Value, as the case may be. Each such Qualified Appraiser shall, within thirty (30) days following its appointment, submit its appraisal of such fair market value or fair market lease rate to each of Landlord and Tenant in writing, and if the amounts set forth in such appraisals vary by five percent (5%) or less of the greater value, the Fair Market Lease Rate or the Fair Market Value, as applicable, shall be determined by calculating the average of the two determinations by the two appraisers. (iii) If the fair market lease rate or the fair market value, as applicable, set forth in the two appraisals vary by more than five percent (5%) of the greater of the two values, the two Qualified Appraisers shall select a third Qualified Appraiser within an additional fifteen (15) days following the submittal of the last appraisal. If the two appraisers are unable to agree upon the appointment of a third appraiser within such fifteen (15) day period, either party may, upon written notice to the other, request that such appointment be made by the then President (or equivalent officer) of the Chapter of the American Institute of Real Estate Appraisers in the Facility State, or his or her designee or, if there is no such organization or if such individual declines to make such appointment, by any state or Federal court of competent jurisdiction for the American Arbitration Association. The decisions of the three Facility State. (3iv) appraisers shall be given within Within twenty (20) days of the appointment of following its selection, the third appraiser and shall review the decision of the appraiser most different from the average of the other two (2) appraisals and select the appraisal that it determines most clearly reflects the fair market lease rate or the fair market value. The selected fair market lease rate or fair market value shall then be the Fair Market Lease Rate or the Fair Market Value, as the case may be. (v) In connection with the appraisal process, Tenant shall provide the appraisers full access during normal business hours to examine the Facility, the books, records and files of Tenant and all agreements, leases and other operating agreements relating to the Facility. The costs of each party's appraisal shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if borne by the highest appraisal selecting party and the lowest appraisal are equidistant from the third appraisal, cost of the third appraisal shall be binding on Lessor shared equally. Upon determining such value, the appraisers shall promptly notify Landlord and LesseeTenant in writing of such determination. The fees and expenses determination of the appraiser appointed by Lessee Qualified Appraisers made in accordance with the foregoing provisions shall be paid by Lessee; final and binding upon the fees parties, such determination may be entered as an award in arbitration in a court of competent jurisdiction, and expenses of the appraiser appointed by Lessor shall judgment thereon may be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorentered.

Appraisal Procedure. For determining excessive wear and tear, if any, or the Fair Market Sales Value of the Properties a Unit or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedureprocedure but with respect to which no appraisal or valuation method is specified, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser from a nationally recognized independent appraisal firm (with at least 15 years of experience appraising equipment similar to and used in the same industry as the Equipment) shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by the Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the each appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining If the Fair Market Sales Value parties are to submit any matter to appraisal pursuant to the terms of this Lease, either Landlord or Tenant (the “Moving Party”) may give notice to the other demanding appraisal and naming an appraiser. The recipient of such notice (the “Recipient”) will, within 10 days after receiving the Moving Party’s notice, give notice to the Moving Party naming an appraiser selected by the Recipient. Each appraiser will be a member of the Properties or any other amount which may, pursuant American Institute of Appraisers and will have not less than 10 years’ experience in the appraisal of properties like the Property in the Seattle metropolitan area. If the Recipient fails to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use notify the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement Moving Party of the Appraisal Procedure under the applicable section name of the Leaseappraisal company it has selected within said 10-day period, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal company selected by such the Moving Party will determine the matter submitted. The appraiser(s) will render a determination in writing to Landlord and Tenant simultaneously within 10 days of their appointment. Any determination in which the appraiser appointed by Landlord and the appraiser shall appointed by Tenant concur will be binding on Lessee and Lessorconclusive upon the parties. If the two (2) appraisers cannot agree are unable to determine the matter within twenty (20) 20 days after both shall have been appointedappointment of the second appraiser, then they will appoint a third appraiser, who must be an impartial person with qualifications similar to those required of the first two appraisers. If the initial two appraisers are unable to agree upon such appointment within 5 days after expiration of the 20-day period, the third appraiser shall will be selected by the two (2) appraisers orparties themselves, failing agreement if they can agree, within a further period of 10 days. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by the then presiding judge of the King County Superior Court acting in his private non-judicial capacity. The other party will not raise any question as to such Judge’s full power and jurisdiction to entertain the application for and make the appointment. If the matter cannot be determined by agreement between the two appraisers selected by Landlord and Tenant, or settlement between the parties during the course of appraisal, then it will be determined by the three appraisers in accordance with the following procedure. Each of the two appraisers originally selected by the parties will prepare a written statement of his determination, supported by the reasons therefor, with counterpart copies for each party and the third appraiser. The appraisers must arrange for a simultaneous exchange of their written statements. The role of the third appraiser will be to select which of the two proposed determinations most closely approximates his determination on the matter. The third appraiser will have no right to propose a middle ground or any modification of either of the two determinations. The appraisers will attempt to determine the matter within thirty (30) 10 days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser. The determination chosen by the third appraiser and will constitute the decision determination of the appraisers and be final and binding upon the parties. In the event of a failure, refusal or inability of any appraiser most different from to act, his successor will be appointed by him, but in the average case of the other two (2) shall third appraiser, his successor will be discarded and such average shall be binding on Lessor and Lessee; provided, that if appointed in the highest appraisal and the lowest appraisal are equidistant from manner described above for appointment of the third appraisal, the third appraisal shall be binding on Lessor and Lesseeappraiser. The fees appraisers will have the right to consult experts and expenses competent authorities with factual information or evidence pertaining to a determination on the matter, but any such consultation will be made in the presence of both parties with full right on their part to cross-examine. The appraiser(s) will render the appraiser appointed by Lessee shall be paid by Lessee; determination on the matter in writing, with counterpart copies to each party. The appraisers will have no power to modify the provisions of this Lease. Each party will pay the fees and expenses of the its respective appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and both will share equally the fees and expenses of the third appraiser shall be divided equally between Lessee appraiser, if any. Each party will pay the attorneys’ fees and Lessorexpenses of its counsel and the fees and expenses of any witnesses called by that party. Time is of the essence in connection with any matter submitted to appraisal pursuant to this provision.

Appraisal Procedure. For determining In the event that it becomes necessary to determine the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under Collective Leased Properties for any purpose of this Agreement and the applicable section of the Lease, and if they parties cannot agree within ten (10) daysthereon, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, such Fair Market Value shall mutually agree thereupon, but if be determined upon the written demand of either party shall fail to choose in accordance with the following procedure. The party requesting an appraiser within twenty (20) days after notice from the other party of the selection of its appraiserappraisal, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser Notice given within thirty (30) days after both the date of the event which requires or permits such procedure, shall propose and unilaterally approve a Qualified Appraiser. The other party, by Notice given within fifteen (15) days after receipt of such Notice appointing the first Qualified Appraiser, may appoint a second Qualified Appraiser. If the other party fails to appoint the second Qualified Appraiser within such fifteen (15) day period, such party shall have been appointedwaived its right to appoint a Qualified Appraiser, the first Qualified Appraiser shall appoint a second Qualified Appraiser within fifteen (15) days thereafter and the Fair Market Value shall be determined by the Qualified Appraisers as set forth below. The two Qualified Appraisers shall thereupon endeavor to agree upon the Fair Market Value. If the two Qualified Appraisers so named cannot agree upon such value within thirty (30) days after the designation of the second such appraiser, each such appraiser shall, within five (5) days after the expiration of such thirty (30) day period, submit his appraisal of fair market value to the other appraiser in writing, and if the fair market values set forth in such appraisals vary by five percent (5%) or less of the greater value, the fair market value shall be determined by calculating the average of the two fair market values determined by the two appraisers. If the fair market values set forth in the two appraisals vary by more than five percent (5%) of the greater value, the two Qualified Appraisers shall select a third Qualified Appraiser within an additional fifteen (15) days following the expiration of the aforesaid five (5) day period. If the two appraisers are unable to agree upon the appointment of a third appraiser within such fifteen (15) day period, either party may, upon written notice to the other, request that such appointment be made by the then President (or equivalent officer) of the State's Chapter of the American Institute of Real Estate Appraisers, or his or her designee or, if there is no such organization or if such individual declines to make such appointment, by any state or Federal court of competent jurisdiction for the American Arbitration AssociationState. The decisions In the event that all three of the three (3) appraisers shall be given cannot agree upon Fair Market Value within twenty (20) days of following the appointment selection of the third appraiser, each appraiser shall, within ten (10) days thereafter, submit his appraisal of fair market value to the other two appraisers in writing, and the decision of the appraiser most different from fair market value shall be determined by calculating the average of the two numerically closest values (or, if the values are equidistant, the average of all three values) determined by the three appraisers. In the event that any appraiser appointed hereunder does not or is unable to perform his or her obligation hereunder, then the party or the appraisers appointing such appraiser shall have the right to propose and approve unilaterally a substitute Qualified Appraiser, but if the party or the appraisers who have the right to appoint a substitute Qualified Appraiser fail to do so within ten (10) days after written notice from the other two party (2or either party in the event such appraiser was appointed by the other appraisers) shall either party may, upon written notice to the party having the right to appoint a substitute Qualified Appraiser, request that such appointment be discarded and made by such average shall be binding on Lessor and Lesseeofficer of the American Institute of Real Estate Appraisers or court of competent jurisdiction as described above; provided, however, that if a party who has the highest right to appoint an appraiser or a substitute appraiser shall have the right to make such appointment only up until the time such appointment is made by such officer or court. In connection with the appraisal and process, Tenant shall provide the lowest appraisal are equidistant from appraisers full access during normal business hours to examine the third appraisalapplicable Leased Property, the third books, records and files of Tenant and all agreements, leases and other operating agreements relating to the applicable Leased Property. The costs (other than Landlord's counsel fees) of each such appraisal shall be binding on Lessor borne by Tenant and Lesseeshall be included as part of the Additional Charges. Upon determining such value, the appraisers shall promptly notify Landlord and Tenant in writing of such determination. If any party shall fail to appear at the hearings appointed by the appraisers, the appraisers may act in the absence of such party. The fees and expenses determination of the appraiser appointed by Lessee Qualified Appraisers made in accordance with the foregoing provisions shall be paid by Lessee; final and binding upon the fees parties, such determination may be entered as an award in arbitration in a court of competent jurisdiction, and expenses of the appraiser appointed by Lessor shall judgment thereon may be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorentered.

Appraisal Procedure. For determining If any party shall initiate an appraisal procedure to determine the Fair Market Sales Value amount of the Properties or any other amount which may, pursuant to any provision cash equivalent of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"consideration for Subject Common Stock under Section 3(b)(v). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed Transferor, on the one hand, and the Purchaser, on the other hand, shall each promptly appoint as an appraiser an individual who shall be binding on Lessee and Lessora member of a nationally recognized investment banking firm. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointedEach appraiser shall, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointedof appointment, by separately investigate the American Arbitration Association. The decisions value of the three (3) appraisers consideration for the Subject Common Stock as of the proposed transfer date and shall submit a notice of an appraisal of that value to each party. Each appraiser shall be given instructed to determine such value without regard to income tax consequences to the Transferor as a result of receiving cash rather than other consideration. If the appraised values of such consideration (the “Earlier Appraisals”) vary by less than ten percent (10%), the average of the two appraisals on a per share basis shall be controlling as the amount of the cash equivalent. If the appraised values vary by more than ten percent (10%), the appraisers, within twenty ten (2010) days of the appointment submission of the last appraisal, shall appoint a third appraiser who shall be member of a nationally recognized investment banking firm. The third appraiser shall, within thirty (30) days of his appointment, appraise the value of the consideration for the Subject Common Stock (without regard to the income tax consequences to the Transferor as a result of receiving cash rather than other consideration) as of the proposed transfer date and submit notice of his appraisal to each party. The value determined by the third appraiser shall be controlling as the amount of the cash equivalent unless the value is greater than the two Earlier Appraisals, in which case the higher of the two Earlier Appraisals will control, and unless that value is lower than the two Earlier Appraisals, in which case the lower of the two Earlier Appraisals will control. If any party fails to appoint an appraiser or if one of the two initial appraisers fails after appointment to submit his appraisal within the required period, the appraisal submitted by the remaining appraiser shall be controlling. The Transferor and the decision Purchaser shall each bear the cost of the appraiser most different from the average its respective appointed appraiser. The cost of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor shared one-half by the Transferor and Lessee. The fees and expenses of one-half by the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorPurchaser.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "“Appraisal Procedure"”). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section Section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor and the Investors, ratably, based on their relative percentages of the aggregate Commitments (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between (x) Lessee and Lessor(y) Lessor and the Investors, ratably, based on their relative percentage of the aggregate Commitments.

Appraisal Procedure. For determining In order to determine the Fair Market Sales Appraised Value or the Series C and D Appraised Value, the holders of a Majority of the Shares of Series A, B and E Preferred Stock (in the case of determinations of the Appraised Value) or the holders of a Majority of the Shares of Series C and D Preferred Stock (in the case of determinations of the Series C and D Appraised Value), on the one hand, and the Board (excluding the Series A and Series B Preferred Directors, in the case of the determination of the Appraised Value of the Properties Series A, B and E Preferred Stock, and excluding the Series C and D Preferred Directors, in the case of the determination of the Appraisal Value of the Series C and D Preferred Stock), on the other hand, shall each appoint one appraiser (collectively, the "Initial Appraisers"), within 20 days after delivery of the Put Notice or any other amount the Series C and D Put Notice, as the case may be, which mayappraisers shall promptly determine a fair market value based on the going concern value of the Company as a whole and without adjustment for minority interest or lack of liquidity, pursuant to any provision of any Operative Agreement, be within 30 days. In the event that the fair market values determined by an appraisal procedurethe Initial Appraisers (collectively, Lessor the "Original Estimates") do not differ in amount by more than 10 percent, the fair market value for purposes of this Section 5.3 shall be the amount equal to the average of the Original Estimates. In the event that the Original Estimates differ in amount by more than 10 percent, the holders of a Majority of the Shares of Series A, B and Lessee E Preferred Stock (in the case of determinations of the Appraised Value) or the holders of a Majority of the Shares of Series C and D Preferred Stock (in the case of determinations of the Series C and D Appraised Value) and the Company shall use mutually agree on a third appraiser within 5 days thereafter, provided that if such holders and the following procedure Company fail to appoint a third appraiser within such 5-day period, then the Initial Appraisers shall appoint a third appraiser within 5 days thereafter. The third appraiser shall independently, within 30 days of such third appraiser's appointment, determine such a fair market value (the "Appraisal ProcedureThird Estimate"). Lessor and Lessee The Original Estimate that is nearest in amount to the Third Estimate shall endeavor be deemed to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of be the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser fair market value that shall be binding on Lessee the Company and Lessorthe holders of the Shares subject to the Put. If the two (2) The Company shall bear all costs of appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser under this Section 5.3. All appraisers appointed pursuant to this Section 5.3 shall be selected by qualified in valuing companies similar to the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both Company and shall have been appointed, by the American Arbitration Associationbe unaffiliated with any party hereto. The decisions Any determination of the three (3) appraisers Appraised Value or the Series C and D Appraised Value under this Section 5.3 shall be given within twenty (20) days made without reduction resulting from the lack of liquidity of the appointment of Shares subject to Put or the third appraiser Series C and D Put or the decision of fact that such Shares may, at such time, represent a minority interest in the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorCompany.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties a Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by the Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "“Appraisal Procedure"”). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining In the event that it becomes necessary to determine the Fair Market Sales Value or Fair Market Rental of any property for any purpose of the Properties applicable Lease, and the parties cannot agree amongst themselves on such Fair Market Value or any other amount which Fair Market Rental, Tenant may request that Landlord select, or Landlord may on its own initiative select, a Qualified Appraiser (as hereinafter defined). If Tenant does not accept the Fair Market Value or Fair Market Rental, as the case may be, of such property as of the relevant date as determined by such Qualified Appraiser, Tenant may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of within ten (10) days from commencement after receiving the report of such Qualified Appraiser, by written Notice to Landlord, appoint a second Qualified Appraiser. If Tenant does not so appoint a second Qualified Appraiser within such ten (10) day period, Tenant shall be deemed to have accepted the Appraisal Procedure under Fair Market Value or Fair Market Rental determined by the applicable section of the Lease, and if they cannot agree first Qualified Appraiser. The two appraisers so designated shall meet within ten (10) daysdays after the second Qualified Appraiser is designated, then two and, if within ten (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (2010) days after notice from the other party second Qualified Appraiser is designated, the two appraisers do not agree upon the Fair Market Value or Fair Market Rental, as the case may be, of any property as of the selection of its appraiserrelevant date, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two appraisers shall designate a third Qualified Appraiser, within ten (2) appraisers cannot agree within twenty (2010) days after both shall have been appointed, then thereafter. In the event that the two appraisers are unable to agree upon the appointment of a third Qualified Appraiser within such ten (10) day period, either Landlord or Tenant, on behalf of both, may then request appointment of such appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by then president of the American Arbitration Association. The decisions In the event of the three (3) appraisers a failure, refusal or inability of any appraiser to act, a new Qualified Appraiser shall be given within twenty (20) days of appointed in his stead, which appointment shall be made in the same manner as hereinabove provided for the appointment of such appraiser so failing, refusing or being unable to act. In the third event that all appraisers cannot agree upon such value within ten (10) days as aforesaid, each appraiser shall submit his appraisal of such value to the other two appraisers in writing, and the decision of the appraiser most different from such value shall be determined by calculating the average of the other two numerically closest (2) shall be discarded and such average shall be binding on Lessor and Lessee; providedor, that if the highest appraisal and values are equidistant, all three) values determined by the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorthree appraisers.

Appraisal Procedure. For A party may initiate the appraisal procedure for determining such Fair Market Rent, pursuant to paragraph 3, by giving written notice to the other of its election to require that the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, Rent be determined by appraisal. In such event, each party within thirty (30) days thereafter shall appoint an appraisal procedureappraiser having the qualifications stated below and notify the other party as to the name and address of its appraiser. If a party fails to appoint an appraiser within the 30-day period, Lessor and Lessee the single appraiser appointed shall use constitute the following procedure (sole appraiser for the "Appraisal Procedure")purpose of determining the applicable Fair Market Rent. Lessor and Lessee shall endeavor Each appraiser will be instructed to attempt to reach a mutual agreement consensus with the other appraiser (if applicable) as to the Fair Market Rent of the Premises. Fred Meyer - Metropolitan Life Leas▇ ▇▇d▇▇▇▇▇tion Agreement February 4, 1997 If such amount for consensus is not reached within sixty (60) days of the appointment of the first appraiser, then each appraiser shall, by the end of the sixtieth (60th) day separately provide a period written statement of its determination of the Fair Market Rent (which may be in letter form and state only the appraiser's summary opinion of the Fair Market Rent), to be delivered to the other appraiser and each party. The Fair Market Rent shall then be determined by averaging the opinion of the two appraisers, unless the higher of the two appraisals exceeds the lesser by ten percent (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease%), and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, in which case a third appraisal shall mutually agree thereupon, but if either party shall fail to choose an appraiser be selected within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal such determination by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a appraisers. The third appraiser shall be selected by render an appraisal of the two (2) appraisers or, failing agreement as to such third appraiser Fair Market Rent within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and appraiser. The Fair Market Rent shall be determined by averaging the decision two of the appraiser most different from three appraisals that are the average of closest to each other. If the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appraisers appointed by Lessee shall be paid by Lessee; the fees and expenses of parties fail to appoint a third appraiser (if required) within the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant required time period, either party may apply to Section 11 of the Participation Agreement); and US District Court for the fees and expenses judicial district in which the Premises is located, for the appointment of the third appraiser appraiser. The date that the Fair Market Rent is finally determined and communicated to the parties in writing pursuant to this paragraph 4 is the "Final Determination Date". All appraisers shall be divided independent third parties not affiliated with the parties and members in good standing of the American Institute of Real Estate Appraisers, or successor organization, and shall have, immediately preceding their appointment, at least five (5) years' continuous experience in appraising commercial real property, including three (3) years' experience in appraising retail real property, in the state in which the Premises are located. Tenant and Landlord shall each bear the cost of its own appraiser and shall share equally between Lessee the cost of the third appraiser, if any. Each party will bear its own costs and Lessorattorneys' fees in connection with any proceeding related to the appointment of the appraisers which is not attributable to the other party's failure to appoint an appraiser with qualifications herein provided with the time periods provided above.

Appraisal Procedure. For determining If any party shall initiate an appraisal procedure to determine the Fair Market Sales Value amount of the Properties or cash equivalent of any consideration for a Subject Units under Section 2.6(b)(v), then the Transferor, on the one hand, and the Purchaser, on the other amount which mayhand, shall each promptly, but in no event later than 10 days following written notice of such appraisal procedure pursuant to any provision Section 2.6(b)(v), appoint as an appraiser an individual who shall be a member of any Operative Agreementa nationally-recognized investment banking firm. Each appraiser shall, be determined by within 30 days of appointment, separately investigate the value of the consideration for the Subject Units as of the proposed transfer date and shall submit a notice of an appraisal procedure, Lessor and Lessee of that value to each party. Each appraiser shall use be instructed to determine such value without regard to income tax consequences to the following procedure Transferor as a result of receiving cash rather than other consideration. If the appraised values of such consideration (the "Appraisal ProcedureEarlier Appraisals"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten () vary by less than 10) days from commencement of the Appraisal Procedure under the applicable section of the Lease%, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) appraisals shall be discarded and such average controlling as the amount of the cash equivalent. If the appraised values vary by more than 10%, the appraisers, within 10 days of the submission of the last appraisal, shall appoint a third appraiser who shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lesseea member of a nationally recognized investment banking firm. The fees and expenses third appraiser shall, within 30 days of his appointment, appraise the value of the appraiser appointed by Lessee shall be paid by Lessee; consideration for the fees and expenses Subject Units (without regard to the income tax consequences to the Transferor as a result of receiving cash rather than other consideration) as of the appraiser appointed proposed transfer date and submit notice of his appraisal to each party. The value determined by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee controlling as the amount of the cash equivalent unless the value is greater than the two Earlier Appraisals, in which case the higher of the two Earlier Appraisals will control, and Lessorunless that value is lower than the two Earlier Appraisals, in which case the lower of the two Earlier Appraisals will control. If any party fails to appoint an appraiser or if one of the two initial appraisers fails after appointment to submit his appraisal within the required period, the appraisal submitted by the remaining appraiser shall be controlling. The cost of the foregoing appraisals shall be shared one-half by the Transferor and one-half by the Purchaser.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Agent Lessor and Lessee shall use the following procedure (the "Appraisal ProcedureAPPRAISAL PROCEDURE"). Agent Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Agent Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Agent Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Agent Lessor and Lessee; provided, PROVIDED that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Agent Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales The Appraised Value of the Properties or any other amount which may, pursuant to any provision Premises for purposes of any Operative Agreement, calculating Net Economic Value of Premises shall be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure not more than ninety (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (1090) days from commencement prior to the date of closing on the purchase of the Appraisal Procedure under Premises. To that end, Tenant and Landlord shall first attempt to agree in writing upon the applicable section Appraised Value of the Lease, fee simple interest in the Premises. In the event that Tenant and if they cannot Landlord are unable to agree in writing upon the Appraised Value of the Premises within ten (10) days, then Landlord shall appoint an Appraiser (the "Landlord's Appraiser"), and Tenant shall appoint an Appraiser (the "Tenant's Appraiser"). If the Appraised Value of the Premises as determined by Landlord's Appraiser and the Appraised Value of the Premises as determined by Tenant's Appraiser differ by ten percent (10%) or less, then the Appraised Value of the Premises shall be determined by averaging the two appraisals. The Appraisers chosen shall be MAI's and active in the business of appraisals for facilities providing assisted living services. If the appraisals differ by more than ten percent (2) qualified appraisers10%), one (1) chosen by Lessee then Landlord's Appraiser and one (1) chosen by Lessor, Tenant's Appraiser shall mutually agree thereupon, but if either party shall fail on a third Appraiser (the "Mutual Appraiser") to choose an appraiser within twenty (20) days after notice from determine the other party Appraised Value of the selection Premises. If the Mutual Appraiser's determination of its appraiserthe Appraised Value of the Premises shall be identical to the Appraised Value of the Premises as determined by either the Landlord's Appraiser or the Tenant's Appraiser, then the appraisal Appraised Value of the Premises as determined by the Mutual Appraiser shall be final and shall be deemed to be the Appraised Value of the Premises. If the Appraised Value of the Premises as determined by the Mutual Appraiser shall be different than the Appraised Value determined by Landlord's Appraiser and the Appraised Value determined by Tenant's Appraiser, then the Appraised Value of the Premises shall be determined by selecting among the three Appraisals the two numerically closest appraisals and then calculating the arithmetic mean thereof. If the three appraisals shall differ by the same numerical amount, then the Appraised Value of the Premises shall be determined by calculating the arithmetic average of the three Appraisals. Notwithstanding the foregoing, if Tenant notifies Landlord in writing of its intention to exercise its Purchase Option and the price at which Tenant would be willing to buy, Landlord will notify Tenant in writing within five (5) business days after receipt of Tenant's notice either (i) that Landlord approves the sale price; or (ii) that Landlord does not approve the sale price. If the Landlord approves the sale price, then the Tenant may buy the Premises at the price specified in its notice and such appointed appraiser price shall be binding and conclusive on Lessee and Lessorthe parties. If the two Landlord does not approve the sale price, then the Tenant may initiate the appraisal process as previously described to determine the Appraised Value for purposes of calculating the Net Economic Value. The price approved by Landlord, or established by the appraisal procedure set forth above shall be valid for a period of not more than ninety (2) appraisers cannot agree within twenty (2090) days after both shall have been appointed, then a third appraiser shall be selected by from the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions date of Landlord's approval or of the three (3) appraisers shall be given within twenty (20) days completion of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorprocess.

Appraisal Procedure. For determining the Fair Market Sales Value ------------------- of the Properties Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee ------------------- shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest -------- appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of all of the appraiser appointed appraisers shall be paid by the Lessee, provided that any such amounts expended by Lessee shall be paid by Lessee; part of (and limited by) the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorMaximum Residual Guarantee Amount.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, Any appraisal pursuant to any provision of any Operative Agreement, this Section 11 ------------------- shall be determined conducted by an appraisal procedure, Lessor and Lessee shall use the following procedure three (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (103) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified independent appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser whom shall be binding on Lessee appointed by RSA, the second by the Purchaser and Lessor. If the third selected by the first two (2) appraisers so selected, and, if such appraisers cannot in good faith agree within twenty (20) days after both shall have been appointedupon the fair market value, then a third appraiser such fair market value shall be selected the median of the appraisers' individual valuations. Fair market value determined under this Section 11 shall be inclusive of an amount representing the value of the goodwill of the Company, shall be calculated as of the date the claim for indemnification was initially made and shall be exclusive of any diminution or decrease in the fair market value as a result of the occurrence of the events for which indemnification is being claimed. The cost of any such appraisal shall be borne fifty percent (50%) by the two Purchaser and fifty percent (250%) appraisers or, failing agreement by RSA. Each Purchaser and RSA agree to use their respective reasonable best efforts to commence the appraisal procedure as soon as practicable after the expiration of the Initial Period. Should any party fail or refuse to such third appoint an appraiser within thirty (30) days after both shall have been appointedexpiration of the Initial Period, the appraiser appointed by the American Arbitration Association. The decisions of the three (3) appraisers other party shall be given within twenty (20) days of the appointment of the third sole appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor all parties hereto and Lesseetheir successors and assigns. The fees Each appraiser appointed hereunder must be unaffiliated with and expenses independent of the person appointing such appraiser. Each appraiser appointed by Lessee shall must have reasonable professional qualifications as an appraiser for the appraisal to be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorprepared hereunder.

Appraisal Procedure. For determining the Fair Market Sales Value ------------------- of the Properties a piece of Equipment or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedureprocedure but with respect to which no appraisal or valuation method is specified, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and ------------------- Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser from a nationally recognized independent appraisal firm (with at least 15 years of experience appraising equipment similar to and used in the same industry as the Equipment) shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided -------- that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by the Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales ------------------- Value of the Properties a Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor ------------------- and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal -------- and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by the Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining Whenever the Fair Market Sales Value assets of a Member in the Company are to be valued, the Members shall attempt to agree upon a mutually-agreeable value. They shall have fifteen (15) days in which to see if they can agree upon the value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use dissenting Member’s interest in the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement assets of the Appraisal Procedure under the applicable section of the LeaseCompany. Within such fifteen (15) day period, and if they cannot agree, they shall see if they can agree within ten upon a single person or company who shall determine the value of such assets. At the end of fifteen (1015) daysdays if the Members cannot agree upon the value of the dissenting Member’s share of the Company’s assets, nor upon a single person or company to determine the value of such assets in a manner binding upon both Members, then two (2) qualified appraisers, each Member shall agree to submit the evaluation to a binding panel of appraisers as follows. Each party shall select one (1) chosen by Lessee experienced and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail competent appraiser to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by perform such appointed appraiser shall be binding on Lessee valuation and Lessor. If the two (2) persons so appointed shall appoint a third (3rd) competent appraiser. The appraisers canshall have thirty (30) days in which to make their valuation of the assets of the Company. A copy of each appraiser’s determination of value shall be furnished to all the Members of the Company. The appraised value of the assets shall be the average value of the three (3) appraisals if the three (3) appraised values do not agree within vary by more than twenty percent (20%). If the three (3) days after both shall have been appointedappraisals vary by more than twenty percent (20%), then a the average value of the two (2) closest appraisals shall be used to determine the value of the assets of the Company. The value of the interest of the dissenting Member shall be determined by valuing the appraised value of the assets of the Company, then multiplying the Member’s Percentage Interest times that value, and then subtracting any debts owed by that Member to the Company or to the other Member. Each Member shall pay the cost of the appraisal by the person that Member it appoints as an appraiser and the Members shall equally share the cost of the third appraiser shall be selected appointed by the two (2) appraisers orother appraisers, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions or of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third single appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal parties shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessoragree upon a single appraiser.

Appraisal Procedure. For determining In the Fair Market Sales Value event the parties are unable to mutually agree upon the net fair market value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of Company assets within ten (10) days from commencement of the Appraisal Procedure under date the applicable section appraisal procedure of this Article X is instituted as provided in this Agreement, they shall each select one appraiser to determine the net fair market value of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party Company assets as of the selection of its appraiser, then date the appraisal by such appointed procedure of this Article X is instituted as provided in this Agreement. Each appraiser so selected shall be binding on Lessee furnish the Members and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointedcertified public accountants for the Company, then or hired for purposes of the subject determination only, with a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser written appraisal within thirty (30) days after both shall have been appointedof his or her selection, by the American Arbitration Association. The decisions setting forth his or her determination of the three (3) appraisers net fair market value. If only one appraisal is submitted within the requisite time period, the determination of the fair market value of the Company pursuant to such appraisal shall be given final and binding on the Members. If both appraisals are submitted within twenty such time period, and if the two appraisals so submitted differ by less than five percent (205%) days of the appointment lower of the third appraiser and the decision of the appraiser most different from two, the average of the other two (2) shall be discarded the determination of fair market value and shall be final and binding on the Members. If the two appraisals differ by more than five percent (5%) of the lower of the two, then the two appraisers shall immediately select a third appraiser who shall within sixty (60) days after his or her selection make a determination of the fair market value of the Company assets and submit such determination to the Members and such average certified public accountants. The third appraisal will then be averaged with the closer of the two previous appraisals and the result shall be the determination of fair market value and shall be final and binding on Lessor and Lessee; providedthe Members, that if unless the highest appraisal and the lowest appraisal are equidistant first two appraisals differ from the third appraisalappraisal by the same amount, in which case the determination of the fair market value pursuant to the third appraisal shall be final and binding on Lessor and Lesseethe Members. All appraisers appointed pursuant to this Article X shall be members of the American Institute of Real Estate Appraisers with not less than ten (10) years experience appraising projects similar to the Project. The fees and expenses cost of the appraiser appointed by Lessee appraisals shall be paid by Lessee; the fees and expenses an expense of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified Company, except that if the appraisal procedure is instituted pursuant to Section 11 9.2, the cost shall be an expense of the Participation AgreementDefaulting Member. ARTICLE Xl (RESERVED FOR FUTURE USE); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Agent Lessor and Lessee shall use the following procedure (the "Appraisal ProcedureAPPRAISAL PROCEDURE"). Agent Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Agent Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Agent Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Agent Lessor and Lessee; provided, PROVIDED that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Agent Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor▇▇▇▇▇▇.

Appraisal Procedure. For determining Within 20 days of the appointment of the appraiser(s), Seller, Purchaser and the appraiser(s) shall meet at a location mutually agreed to by the parties, and in a proceeding held in accordance with the rules of the Commercial American Arbitration Association each of Seller and Purchaser shall submit to the appraiser(s) its proposal for the Fair Market Sales Value Of The Interest(s) to be sold, and shall be allowed to present such evidence and testimony in support thereof as is allowed under the rules of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the Commercial American Arbitration Association. The decisions appraiser(s) shall be instructed that, within 7 days after the date on which the Seller, Purchaser and the appraiser(s) conclude such meeting, the appraiser(s) shall provide to each Member a written statement setting out the Fair Market Value Of The Interest and explaining in detail the basis of the three (3appraiser(s) appraisers calculation. If the Members shall have selected a single appraiser, the Fair Market Value Of The Interest shall be given the amount determined by such appraiser. If the Members shall have selected two appraisers, and if the Fair Market Value Of The Interest determined by the higher of the two appraisers is less than 120% of the Fair Market Value Of The Interest determined by the lesser of the two appraisers, then the Fair Market Value Of The Interest shall be the average of the amount determined by the two appraisers. If the Fair Market Value Of The Interest determined by the higher of the appraisers is equal to or greater than 120% of the value determined by the lesser of the two appraisers, then the Seller and Purchaser shall meet again and attempt to agree upon the Fair Market Value Of The Interest. If the Seller and the Purchaser are not able to agree on the Fair Market Value Of The Interest within twenty (20) 7 days of receipt of the second of the two appraisals, they shall instruct the two appraisers to select a third appraiser. Within 7 days of the appointment of the third appraiser, the appraisers shall meet, and in a proceeding held in accordance with the rules of the Commercial American Arbitration Association each of the first two appraisers shall submit to the third appraiser its appraisal of the Fair Market Value Of The Interest(s). The first two appraisers, the Seller, and the decision of Purchaser shall provide to the third appraiser most different from such information as the third appraiser reasonably requests. The third appraiser shall be instructed that within 7 days after the date on which the appraisers conclude such meeting, the third appraiser shall provide to each Member a written statement setting out the Fair Market Value Of The Interest. In such case the Fair Market Value Of The Interest shall be the average of the other values determined by the two (2closest appraisers. The Fair Market Value Of The Interest selected by the appraiser(s) shall be discarded binding upon Seller and such average Purchaser, and shall be binding on Lessor promptly communicated by Notice to each of Seller and Lessee; provided, that if Purchaser. The cost of the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal Appraisal Procedure shall be binding on Lessor and Lessee. The fees and expenses an expense of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorCompany.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Agent Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Agent Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Agent Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Agent Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Agent Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Agent Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining On the earlier of 160 days prior to the end of the Lease Term or the date on which either party hereto shall have given written notice to the other requesting determination of the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined Equipment by an appraisal procedure, Lessor and Lessee shall use the following procedure this Appraisal Procedure (the "Appraisal ProcedureAPPRAISAL NOTICE"), the parties shall consult for the purpose of appointing a qualified American Society of Appraisers ("ASA") certified appraiser by mutual agreement. Lessor and Lessee shall endeavor to reach a mutual agreement as to If no such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree appraiser is so appointed within ten (10) daysbusiness days after the Appraisal Notice is given, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either each party shall fail appoint a certified ASA appraiser and the two appraisers shall attempt to choose an appraiser within twenty (20) days after notice from jointly agree on the other party Fair Market Value of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and LessorEquipment. If the two (2) appraisers cannot agree within twenty (20) days after both so agree, then the two appraisers so appointed shall appoint a third certified ASA appraiser. If the two appraisers have been appointed, then [SEAL] Purchase Option Rider/FMV unable to agree on the Fair Market Value and on a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointedthe date of their appointment, by Lessor may apply to the ASA or the American Arbitration AssociationAssociation to make such appointment, and both parties shall be bound by any such appointment. The decisions Any appraiser or appraisers appointed pursuant to this Appraisal Procedure shall be bound to determine the Fair Market Value of the three Equipment within thirty (3) appraisers shall be given within twenty (2030) days of after the appointment of the third final appraiser to be employed pursuant to this Appraisal Procedure. If the parties shall have appointed a single appraiser, his or her determination of value shall be final, binding and conclusive on the parties. If the parties have appointed two appraisers, then their jointly agreed determination of value shall be final, binding and conclusive on the parties. If three appraisers shall be appointed, the values determined by the three appraisers shall be averaged, the appraisal having a value furthest from the average shall be discarded and the decision of the appraiser most different from remaining two appraised values shall be averaged, and the average of the other remaining two (2) appraised values shall be discarded final, binding and such average conclusive on the parties. All capitalized terms used herein and not defined herein shall have the meanings set forth or referred to in the Lease Schedule. Except as specifically set forth herein, all of the terms and conditions of the Lease shall remain in full force and effect and are hereby ratified and affirmed. To the extent that the provisions of this Rider conflict with any provisions contained in the Lease, the provisions of this Rider shall control. Dated as of: December 15, 2003 FLEET CAPITAL CORPORATION NEW JERSEY NATURAL GAS COMPANY By:/s/ Sandra Buonaiuto By:/s/ Timothy C. Hearne ------------------- ---------------------------------- Name: SANDRA BUONAIUTO Name: Timothy C. Hearne Title: VI▇▇ ▇▇▇▇▇▇▇▇▇ Title: Sr. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Treasurer [SEAL] Purchase Option Rider/FMV [FLEET CAPITAL CORPORATION LOGO] EARLY PURCHASE OPTION RIDER (single option) One Financial Plaza Providence, Rhode Island 02903-2448 This Ea▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇ "▇▇▇▇▇") ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ and made a part of that certain Lease Schedule No. 35352-00003, dated as of December 15, 2003 (the "LEASE SCHEDULE"), by and between the undersigned parties. So long as no Event of Default has occurred and is continuing under the Lease, and upon at least 90 days prior written notice to Lessor, Lessee shall have the right to terminate the Lease Term for all but not less than all of the Equipment on the Rental Payment Date for Rental Payment Number 117 (the "TERMINATION DATE"). Lessee shall pay to Lessor on the Termination Date an amount equal to: (a) all Rental Payments, late charges and other amounts due and owing under the Lease; plus (b) all taxes, assessments and other charges due or payable in connection with the sale of the Equipment to Lessee; plus (c) 19.09% of the Acquisition Cost of the Equipment Provided that Lessor shall have received all amounts payable hereunder on the Termination Date, and that no Event of Default then exists and is continuing under the Lease, Lessor shall convey all of its right, title and interest in and to the Equipment to Lessee on the Termination Date, on an "AS-IS," "WHERE-IS" BASIS WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, and without recourse to Lessor, except that the Equipment shall be binding free and clear of all liens created by Lessor. In the event Lessee shall not pay all amounts due hereunder on Lessor the Termination Date, then the Lease Term for the Equipment shall continue in full force and Lessee; providedeffect, and this Rider shall be null and void and of no further force and effect. All capitalized terms used herein and not defined herein shall have the meanings set forth or referred to in the Lease Schedule. Except as specifically set forth herein, all of the terms and conditions of the Lease shall remain in full force and effect and are hereby ratified and affirmed. To the extent that if the highest appraisal provisions of this Rider conflict with any provisions contained in the Lease, the provisions of this Rider shall control. Dated as of: December 15, 2003 FLEET CAPITAL CORPORATION NEW JERSEY NATURAL GAS COMPANY By:/s/ Sandra Buonaiuto By:/s/ Timothy C. Hearne ----------------------- ---------------------------------- Name: SANDRA BUONAIUTO Name: Timothy C. Hearne Title: VI▇▇ ▇▇▇▇▇▇▇▇▇ Title: Sr. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Treasurer [SEAL] Early Purchase Option Rider (Single Option) [FLEET CAPITAL CORPORATION LOGO] LEASE SCHEDULE NO.35352-00004 (True Lease Schedule) One Financial Plaza Providence, Rhode Island 02903-2448 ▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇▇▇ ▇▇TURAL GAS COMPANY Address: 1415 WYCOFF ROAD ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇ Lease Schedule No. 35352-00004 dated as of December 1 , 2004 is entered into pursuant to and incorporates by this reference, all of the terms and provisions of that certain Master Equipment Lease Agreement No. 35352 dated as of September 25, 2001 (the "MASTER LEASE"), for the lease of the Equipment described in Schedule A attached hereto. This Lease Schedule shall constitute a separate, distinct and independent lease of the Equipment and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and contractual obligation of Lessee. The fees References to the "the Lease" or "this Lease" shall mean and expenses refer to this Lease Schedule, together with the Master Lease and all exhibits, addenda, schedules, certificates, riders and other documents and instruments executed and delivered in connection with this Lease Schedule, all as the same may be amended or modified from time to time. All capitalized terms used herein and not defined herein shall have the meanings set forth or referred to in the Master Lease. By its execution and delivery of this Lease Schedule, Lessee hereby reaffirms all of the appraiser appointed by Lessee shall be paid by Lessee; representations, warranties and covenants contained in the fees and expenses Master Lease, as of the appraiser appointed by date hereof, and further represents and warrants to Lessor shall be paid by Lessor (such fees that no Event of Default, and expenses not being indemnified pursuant to Section 11 no event or condition which with notice or the passage of time or both would constitute an Event of Default, has occurred and is continuing as of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessordate hereof.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days Business Days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) daysBusiness Days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 13 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the The term "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach " as used herein means a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then procedure whereby two (2) qualified independent appraisers, one (1) chosen by Lessee the Company and one (1) chosen by Lessorthe Investor, shall mutually agree thereupon, but if either upon the determinations then the subject of appraisal. Each party shall fail deliver a notice to choose an the other appointing its appraiser within twenty fifteen (2015) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and LessorAppraisal Procedure is invoked. If within thirty (30) days after appointment of the two (2) appraisers cannot they are unable to agree within twenty (20) days after both shall have been appointedupon the amount in question, then a third independent appraiser shall be selected chosen within ten (10) days thereafter by the mutual consent of such first two (2) appraisers or, failing agreement as if such first two (2) appraisers fail to agree upon the appointment of a third appraiser, such appointment shall be made by the American Arbitration Association, or any organization successor thereto, from a panel of arbitrators having experience in the appraisal of the subject matter to be appraised. The decision of the third appraiser so appointed and chosen shall be given within thirty (30) days after both shall have been appointed, by the American Arbitration Associationselection of such third appraiser. The decisions of the If three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser appointed and the decision determination of the one (1) appraiser most different is disparate from the average of middle determination by more than twice the amount by which the other determination is disparate from the middle determination, then the determination of such appraiser shall be excluded, the remaining two (2) determinations shall be discarded averaged and such average shall be binding and conclusive on Lessor and Lessee; provided, that if the highest appraisal Company and the lowest appraisal are equidistant from the third appraisalInvestor; otherwise, the third appraisal average of all three (3) determinations shall be binding and conclusive on Lessor the Company and Lesseethe Investor. The fees and expenses costs of conducting any Appraisal Procedure shall be borne by the Company. Notwithstanding the foregoing, if shares of the appraiser appointed Company's Common Stock are trading on the Nasdaq SmallCap Market, Nasdaq NMS, AMEX, or the NYSE, rather than invoke the Appraisal Procedure to value Common Stock, the Common Stock will be valued by Lessee shall be paid by Lessee; reference to the fees and expenses average of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant closing prices over the 20 trading days prior to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorvaluation date.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties Equipment or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified indemnifiable pursuant to Section 11 13 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining In the Fair Market Sales Value event that Molex elects not to designate a fair market value in connection with exercising its purchase option or in the event that the Company objects within 10 days of receiving the Properties or any other amount which mayproposed fair market value purchase price from Molex, pursuant to any provision of any Operative Agreement, that the fair market value shall be determined by an appraisal procedure, Lessor mutually agreed appraiser. If Molex and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor Company are unable to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of upon the selection of its an appraiser, then each shall select an independent appraiser within 10 days of the appraisal delivery by such appointed appraiser Molex of the Purchase Notice. Within 20 days of the appointment of the appraiser(s), Molex, the Company and the appraiser(s) shall meet at a location mutually agreed to by the parties, and in a proceeding held in accordance with the rules of the Commercial American Arbitration Association each of Molex and the Company shall submit to the appraiser(s) its proposal for the fair market value of the Assets, and shall be binding on Lessee allowed to present such evidence and Lessor. If testimony in support thereof as is allowed under the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by rules of the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the Commercial American Arbitration Association. The decisions appraiser(s) shall be instructed that, within 7 days after the date on which Molex, the Company and the appraiser(s) conclude such meeting, the appraiser(s) shall provide to each of Molex and the Company a written statement setting out the fair market value of the three (3Assets and explaining in detail the basis of the appraiser(s) appraisers calculation. If Molex and the Company shall have selected a single appraiser, the fair market value of the Assets shall be given the amount determined by such appraiser. If Molex and the Company shall have selected two appraisers, and if the fair market value of the Assets determined by the higher of the two appraisers is less than 120% of the fair market value of the Assets determined by the lesser of the two appraisers, then the fair market value of the Assets shall be the average of the amount determined by the two appraisers. If the fair market value of the Assets determined by the higher of the appraisers is equal to or greater than 120% of the value determined by the lesser of the two appraisers, then Molex and the Company shall meet again and attempt to agree upon the fair market value of the Assets. If Molex and the Company are not able to agree on the fair market value of the Assets within twenty (20) 7 days of receipt of the second of the two appraisals, Molex shall instruct the two appraisers to select a third appraiser. Within 7 days of the appointment of the third appraiser, the appraisers shall meet, and in a proceeding held in accordance with the rules of the Commercial American Arbitration Association each of the first two appraisers shall submit to the third appraiser its appraisal of the fair market value of the Assets. The first two appraisers of Molex and the decision Company shall provide to the third appraiser such information as the third appraiser reasonably requests. The third appraiser shall be instructed that within 7 days after the date on which the appraisers conclude such meeting, the third appraiser shall provide to each of Molex and the Company a written statement setting out the fair market value of the appraiser most different from Assets. In such case the fair market value of the Assets shall be the average of the other values determined by the two (2closest appraisers. The fair market value of the Assets selected by the appraiser(s) shall be discarded binding upon Molex and such average the Company, and shall be binding on Lessor and Lessee; provided, that if the highest appraisal promptly communicated by Notice to each of Molex and the lowest appraisal are equidistant Company. The cost of the Appraisal Procedure shall be an expense of the Company. The Company agrees that it shall not dispose of any material asset during the pendency of the procedure set forth above. Molex shall pay the Company cash in the amount of the fair market value of the Assets within 30 days of its determination in accordance with this procedure. In the event that the Company does not cooperate with this timetable, then all of the above referenced deadlines shall run from the third appraisal, date which the third appraisal shall be binding on Lessor and Lessee. The fees and expenses Company begins to cooperate within this procedure or is ordered to do so by a court of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorcompetent jurisdiction.

Appraisal Procedure. For determining the Fair Market Sales Value The appraisal procedure contemplated by Sections 5.c. and 5.d. shall consist of the Properties or any other amount which mayfollowing: (i) the Employee shall select a nationally recognized investment banking firm ("Employee Appraiser") to determine the fair market value of the assets in the Investment Account of the Employee, pursuant to any provision as of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure applicable time period (the "Appraisal ProcedureInitial Appraisal"). Lessor , within 30 days of such Employee's termination of actual employment by the Company, (ii) if the Company does not object to the Initial Appraisal within 15 days after receipt thereof, such appraisal shall be final and Lessee binding upon the Employee and the Company, (iii) if the Company objects to the Initial Appraisal with respect to an amount equal to 10% or more of the Initial Appraisal, then the Company shall endeavor promptly so notify the Employee and select a different nationally recognized investment banking firm (the "Company Appraiser") who shall review the Initial Appraisal and issue its own appraisal of the fair market value of the assets in the Employee's Investment Account as of the applicable time period (the "Company Appraisal"), and shall deliver the Company Appraisal to reach a mutual the Employee within 30 days of such notification to the Employee, (iv) within 10 days after the delivery of the Company Appraisal to the Employee, the Employee Appraiser and the Company Appraiser shall meet in an effort to resolve any questions or differences between their respective appraisals, (v) if the Employee Appraiser and Company Appraiser agree on the fair market value of the assets in the Employee's Incentive Account as of the applicable time period, such agreed upon value shall be final and binding upon the Employee and the Company, (vi) if no agreement as to such amount for fair market value is reached between the Employee Appraiser and the Company Appraiser, such appraisers shall select a period of ten mutually acceptable appraiser (10the "Third Appraiser") days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from their initial meeting and such fair market value shall be determined by the other party of the selection Third Appraiser within 30 days of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded selection and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be final and binding on Lessor and Lessee. The fees and expenses of upon the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); Employee and the fees Company, and expenses (vii) the appraisal performed by the Employee Appraiser, the Company Appraiser or the Third Appraiser shall not take into account discounts arising from the number of shares or amount of securities of any Affiliate held in the third appraiser shall be divided equally between Lessee and LessorEmployee's Investment Account (sometimes referred to as minority discounts or illiquidity discounts.).

Appraisal Procedure. For determining the Fair Market Sales Value If it becomes necessary to determine by appraisal, real estate appraiser(s), all of whom shall be Members of the Properties or any other amount which may, pursuant to any provision Appraisal Institute and who have at least five (5) years experience appraising office space located in the vicinity of any Operative Agreement, the Premises shall be determined by an appraisal procedure, Lessor appointed and Lessee shall use act in accordance with the following procedure procedures: a. Within 20 days after Tenant provides the Appraisal Notice, Tenant shall provide Landlord with written notice of the name, address and qualifications of an appraiser selected by Tenant. Within five (5) business days following Tenant’s selection of an appraiser, Landlord shall either approve the appraiser selected by Tenant or select a second properly qualified appraiser by giving written notice of the name, address and qualification of such appraiser to Tenant. If the Landlord fails to select an appraiser within the five (5) business day period, the appraiser selected by Tenant shall be deemed selected by both parties and no other appraiser shall be selected. If two appraisers are selected, they shall select a third appropriately qualified appraiser within five (5) business days following the selection of the second appraiser (the "Appraisal Procedure"“Third Appraiser Selection Period”). Lessor If the two appraisers fail to select a third qualified appraiser within the required time period, the third appraiser shall be appointed by the then presiding judge of the county where the Premises are located upon application by either party and Lessee if such appointment is not made within five (5) business days following the expiration of the Third Appraiser Selection Period, Tenant shall endeavor to reach a mutual agreement appoint such third appraiser . b. If only one appraiser is selected, that appraiser shall notify the parties in simple letter form of its determination of the Prevailing Market rate for the Premises within fifteen (15) days following his selection, which appraisal shall be conclusively determinative and binding on the parties as to such amount for a period of the appraised Prevailing Market rate. c. If multiple appraisers are selected, the appraisers shall meet not later than ten (10) days from commencement following the selection of the Appraisal Procedure under last appraiser. At such meeting the applicable section appraisers shall attempt to determine the Prevailing Market rate for the Premises as of the Lease, and if they cannot agree within ten (10) days, then commencement date of the subject Renewal Term by the agreement of at least two (2) qualified of the appraisers. d. If two (2) or more of the appraisers agree on the Prevailing Market rate for the Premises at the initial meeting, such agreement shall be determinative and binding upon the parties hereto and the agreeing appraisers shall, in simple letter form executed by the agreeing appraisers, one forthwith notify both Landlord and Tenant of the amount set by such agreement. If multiple appraisers are selected and two (12) chosen by Lessee appraisers are unable to agree on the Prevailing Market rate for the Premises, all appraisers shall submit to Landlord and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose Tenant an appraiser independent appraisal of the Prevailing Market rate for the Premises in simple letter form within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the following appointment of the third appraiser and final appraiser. The parties shall then determine the decision Prevailing Market rate for the Premises by averaging the appraisals; provided that any high or low appraisal, differing from the middle appraisal by more than ten percent (10%) of the middle appraisal, shall be disregarded in calculating the average. e. The appraisers’ determination of Prevailing Market rate shall be made accordance with the terms and conditions of this Amendment including, without limitation, Section 5.G below and shall take into account Tenant’s obligations to pay additional rent under this Lease. If only one appraiser most different from the average is selected, then each party shall pay one-half of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee that appraiser. If three appraisers are selected, each party shall be paid by Lessee; bear the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees it selects and expenses not being indemnified pursuant to Section 11 one-half of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorappraiser.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days Business Days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) daysBusiness Days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section Section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified independent, third party appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third independent, third party appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions ecisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining On the earlier of 160 days prior to the end of the Lease Term or the date on which either party hereto shall have given written notice to the other requesting determination of the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined Equipment by an appraisal procedure, Lessor and Lessee shall use the following procedure this Appraisal Procedure (the "Appraisal ProcedureAPPRAISAL NOTICE"), the parties shall consult for the purpose of appointing a qualified American Society of Appraisers ("ASA") certified appraiser by mutual agreement. Lessor and Lessee shall endeavor to reach a mutual agreement as to If no such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree appraiser is so appointed within ten (10) daysbusiness days after the Appraisal Notice is given, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either each party shall fail appoint a certified ASA appraiser and the two appraisers shall attempt to choose an appraiser within twenty (20) days after notice from jointly agree on the other party Fair Market Value of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and LessorEquipment. If the two (2) appraisers cannot agree within twenty (20) days after both so agree, then the two appraisers so appointed shall appoint a third certified ASA appraiser. If the two appraisers have been appointed, then Purchase Option Rider/FMV . unable to agree on the Fair Market Value and on a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointedthe date of their appointment, by Lessor may apply to the ASA or the American Arbitration AssociationAssociation to make such appointment, and both parties shall be bound by any such appointment. The decisions Any appraiser or appraisers appointed pursuant to this Appraisal Procedure shall be bound to determine the Fair Market Value of the three Equipment within thirty (3) appraisers shall be given within twenty (2030) days of after the appointment of the third final appraiser to be employed pursuant to this Appraisal Procedure. If the parties shall have appointed a single appraiser, his or her determination of value shall be final, binding and conclusive on the parties. If the parties have appointed two appraisers, then their jointly agreed determination of value shall be final, binding and conclusive on the parties. If three appraisers shall be appointed, the values determined by the three appraisers shall be averaged, the appraisal having a value furthest from the average shall be discarded and the decision of the appraiser most different from remaining two appraised values shall be averaged, and the average of the other remaining two (2) appraised values shall be discarded final, binding and such average conclusive on the parties. All capitalized terms used herein and not defined herein shall be binding on Lessor have the meanings set forth or referred to in the Lease Schedule. Except as specifically set forth herein, all of the terms and Lessee; provided, conditions of the Lease shall remain in full force and effect and are hereby ratified and affirmed. To the extent that if the highest appraisal and provisions of this Rider conflict with any provisions contained in the lowest appraisal are equidistant from the third appraisalLease, the third appraisal provisions of this Rider shall be binding on control. Dated as of: December 1, 2004 FLEET CAPITAL CORPORATION NEW JERSEY NATURAL GAS COMPANY By: /s/Patricia Smith-Disu By: /s/ Timothy C. Hearne ---------------------------- ------------------------------------ Name: Patricia Smith-Dishu Name: Timothy C. Hearne Title: Vice P▇▇▇▇▇▇▇▇ Title: Sr. Vi▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇easurer Purchase Option Rider/FMV [FLEET CAPITAL CORPORATION LOGO] AGENCY AGREEMENT One Financial Plaza Providence, Rhode Island 02903-2448 This Ag▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇▇ "▇▇▇▇▇▇▇▇▇") ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇de a part of that certain Master Equipment Lease No. 35352 dated as of SEPTEMBER 25, 2001 (the"MASTER LEASE") by and between the undersigned Lessor and Lessee. The fees Master Lease and expenses all Lease Schedules, Acceptance Certificates, exhibits, riders, amendments and addenda thereto are collectively referred to as the "LEASE". All capitalized terms used herein and not defined herein shall have the meanings set forth or referred to in the Master Lease. Except as may be otherwise provided herein, all of the appraiser appointed terms and provisions of the Master Lease shall remain in full force and effect, are applicable to the subject matter of this Agreement, and are hereby ratified and affirmed. To the extent that the provisions of this Agreement conflict with any provisions contained in the Master Lease, the provisions of this Agreement shall control. Lessee has requested that Lessor purchase and lease to Lessee from time to time certain equipment selected by Lessee shall be paid by Lessee; and described on Exhibit A attached hereto (the fees "EQUIPMENT"). In order to facilitate the purchase, delivery, acceptance and expenses lease of Equipment under the Lease from vendors and suppliers identified on Exhibit A hereto (each, a "VENDOR") in the ordinary course of business. Lessor is willing to appoint Lessee as its agent and attorney for the sole and limited purpose of selecting and paying for certain items of the appraiser appointed by Equipment on behalf of Lessor shall be paid by Lessor (under the terms and conditions set forth herein and in the Master Lease, and Lessee is willing to accept such fees and expenses not being indemnified pursuant to Section 11 appointment. In consideration of the Participation Agreement); mutual promises and covenants hereinafter set forth, and for other good and valuable consideration, the fees receipt and expenses sufficiency of which are hereby acknowledged, the third appraiser shall be divided equally between Lessee and Lessor.parties hereto hereby agree as follows:

Appraisal Procedure. For determining In the Fair Market Sales Value event the Venturers are unable to mutually agree upon the net fair market value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor Joint Venture and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail Joint Venture interests to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser sold or purchased within thirty (30) days after both of the date the appraisal procedure of this Article XIII is instituted as provided in this Agreement, the Venturers shall then attempt to agree upon the appointment of three disinterested appraisers who shall be marine appraisers/surveyors. If the Venturers are unable to agree upon the selection of three appraisers within seventy-five (75) days of the date the appraisal procedure is instituted as provided in this Agreement, then a petition may be made by either Venturer to the presiding judge of the Superior Court for the City of Miami, Florida, County of Dade, for such selection. Each Venturer shall have been appointed, by the American Arbitration Association. The decisions right to submit the names of three (3) appraisers so qualified and the judge shall select the three (3) appraisers from the names so submitted. Each appraiser so selected shall be given furnish the Venturers and the certified public accountants for the Venture with a written appraisal within twenty ninety (2090) days of the appointment his selection, setting forth his determination of the third appraiser net fair market value of all real estate and other tangible assets owned by the Venture as of the date of the application to the Superior Court. Such appraisal shall assume that the Princesa shall be the highest and best use of the Property, and the decision appraisal shall not include any value for any intangible assets of the appraiser most different from the Venture, such as good will. The average of the other two (2) closest valuations of such appraisers shall be discarded treated as the net fair market value of the Venture and such average the determination shall be final and binding on Lessor and Lessee; providedthe Venturers. The cost of the appraisal shall be an expense of the Venture, except that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified is instituted pursuant to Section 11 6.5 or 7.2, the cost shall be at the expense of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessordead or disabled Venturer or Defaulter, as applicable.

Appraisal Procedure. For After the expiration of the thirty (30)-day period set forth in Section 39 for the mutual agreement of Landlord and Tenant as to the fair market rent, each party hereto, at its cost, may engage a real estate appraiser to act on its behalf in determining the Fair Market Sales Value of fair market rent. The appraisers each shall have at least five (5) years' experience in brokering or valuing leases in first class business centers in Alameda County, California and shall submit to Landlord and Tenant in advance for Landlord's and Tenant's reasonable approval the Properties or any appraisal methods to be used. If a ▇▇▇▇▇ appoints such an appraiser and the other amount which may, pursuant party fails to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to appoint such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty fifteen (2015) days after notice from the other first party of that the selection of its first party has appointed such an appraiser, then the appraisal by such single appraiser appointed appraiser shall be binding on Lessee the sole appraiser and Lessorshall set the fair market rent. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected are appointed by the two (2) parties as stated in this paragraph, such appraisers or, failing agreement as shall meet promptly and attempt to set the fair market rent. If such third appraiser appraisers are unable to agree within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions appointment of the three (3) second appraiser, the appraisers shall be given elect a third appraiser meeting the qualifications stated in this paragraph within twenty ten (2010) days after the last date the two appraisers are given to set the fair market rent. Each of the appointment parties hereto shall bear one-half (1/2) the cost of appointing the third appraiser and the decision of the third appraiser's fee. The third appraiser most different from shall be a person who has not previously acted in any capacity for either party. The third appraiser shall conduct his own investigation of the fair market rent, and shall be instructed not to advise either party of his determination of the fair market rent except as follows: When the third appraiser has made his determination, he shall so advise Landlord and Tenant and shall establish a date, at least five (5) days after the giving of notice by the third appraiser to Landlord and Tenant, on which he shall disclose his determination of the fair market rent. Such meeting shall take place in the third appraiser's office unless otherwise agreed by the parties. After having initialed a paper on which his determination of fair market rent is set forth, the third appraiser shall place his determination of the fair market rent in a sealed envelope. Landlord's appraiser and Tenant's appraiser shall each set forth the▇▇ ▇▇▇▇▇mination of fair ▇▇▇▇▇▇ rent on a paper, initial the same and place them in sealed envelopes. Each of the three envelopes shall be marked with the name of the party whose determination is inside the envelope. In the presence of the third appraiser, the determination of the fair market rent by Landlord's appraiser and Tenant's appraiser shall be opened and exam▇▇▇▇. ▇▇ the higher of th▇ ▇▇▇ determinations is 105% or less of the amount set forth in the lower determination, the average of the other two (2) determinations shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisalfair market rent, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses envelope containing the determination of the appraiser appointed fair market rent by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally destroyed and the third appraiser shall be instructed not to disclose his determination. If either party's envelope is blank, or does not set forth a determination of fair market rent, the determination of the other party shall prevail and be treated as the fair market rent. If the higher of the two determinations is more than 105% of the amount of the lower determination, the envelope containing the third appraiser's determination shall be opened. The fair market rent shall be the rent proposed by either Landlord's appraiser or Tenant's appraiser which is closest to the determination of fair mar▇▇▇ ▇▇nt by the third appraiser. FIRST AMENDMENT TO LEASE THIS FIRST AMENDMENT TO LEASE (this "Amendment"), is made as of the day of April, 20, y and between Lessee Hollis Street Investors, L.L.C., a Delaware limited liability compan▇ ("▇▇ndlord"), and LessorLEAPFROG ENTERPRISES, Inc., a Delaware corporation ("Tenant").

Appraisal Procedure. For determining Lender and Borrower shall each appoint a Qualified Appraiser within five (5) days after the Fair Market Sales Lender notifies Borrower that Appraised Value of the Properties or any other amount which may, pursuant needs to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure")as provided in Section 2.3.3(a) above. Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of Within ten (10) days from commencement after their selection, the two selected Qualified Appraisers (“Selected Appraisers”) shall select a third Qualified Appraiser (the “Third Appraiser”). Each of the Appraisal Procedure under the applicable section three Qualified Appraisers shall prepare and complete a narrative appraisal of the Lease, and if they cannot agree within ten market value of the Property no later than forty-five (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (2045) days after notice from being appointed. Such market value shall be determined without regard for the other party principal amount of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and LessorLoan or any Permitted Indebtedness or any Lien securing same. If the two appraised values of the appraisals by the Selected Appraisers differ by no more than five percent (2) appraisers cannot agree within twenty (20) days after both shall have been appointed5%), then a third appraiser the binding Appraised Value shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of those two appraised values. If the other two appraisals of the Selected Appraisers differ by more than five percent (2) 5%), the binding Appraised Value shall be discarded and such average shall be binding on Lessor and Lesseethat which is closest to the appraisal of the Third Appraiser; provided, however, that if the highest appraisal and of the lowest appraisal are equidistant from Third Appraiser is halfway between the third appraisalappraisals of the Selected Appraisers, the third appraisal Third Appraiser’s appraised value shall be the binding Appraised Value. The determination of the binding Appraised Value by the Selected Appraisers, or by the Third Appraiser, as applicable, shall be final and binding on Lessor the parties, and Lesseemay be enforced in any court of competent jurisdiction. The fees Borrower and expenses Lender shall each bear the cost of their own Selected Appraiser and shall split the cost of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorThird Appraiser.

Appraisal Procedure. (a) For determining the Fair Market Sales Value matters for which this Agreement directs an appraisal pursuant to Section 4.7, each of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee Shareholders shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, select one (1) chosen person (an “Appraiser”) with sufficient current experience to meet the standard of care for such profession in appraising the valuation of companies similar to the NewCo. Each Shareholder shall pay the fee of the Appraiser selected by Lessee such Shareholder. NewCo and the Shareholders shall cooperate fully with the Appraisers, including providing all information necessary or appropriate to such appraisal, requested by either of the Appraisers. All information provided to one Appraiser shall be provided to all Appraisers, NewCo and the Shareholders, subject to appropriate confidentiality agreements. (1b) chosen by LessorEach Appraiser shall provide to the Shareholder who retained such Appraiser, and such Shareholder shall mutually agree thereupon, but if either party shall fail provide to choose an appraiser within twenty (20) days after notice from NewCo and the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two Shareholder within sixty (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (2060) days of the appointment Appraisal Start Date, an appraised value of the third appraiser Shares, which value may not be in the form of a range of values but shall be a set price per Share. If the higher appraised value of the Shares is less than one hundred fifteen percent (115%) of the lower appraised value, the two appraised values shall be averaged and the decision fair market value of the appraiser most different from Shares shall be that averaged value. (c) If the higher appraised value of the Shares is greater than one hundred fifteen percent (115%) of the lower appraised value, either Shareholder may request that a third Appraiser be appointed by the two existing Appraisers, in lieu of using an average of the appraisals of the first two Appraisers to set the share price. The fee for the third Appraiser shall be paid equally by the Shareholders, provided that such fee shall not exceed the average of the other fee paid to the two (2) initial Appraisers, who shall cooperate fully with such third Appraiser. If all three Appraisers agree on a valuation after consultation, such agreed value shall be discarded and such average shall be binding the fair market value of the Shares. (d) If all three Appraisers cannot agree on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisala valuation after consultation, the third appraisal Appraiser shall provide an independent valuation of the shares, which value may not be in the form of a range of values but shall be binding on Lessor a set price per share. Such valuation shall be delivered to NewCo and Lesseeeach of the Shareholders within ninety (90) days of the Appraisal Start Date. The fees and expenses fair market value of the appraiser appointed by Lessee Shares shall be paid by Lessee; the fees and expenses average of all three appraisals, with the third Appraiser’s finding weighted at twice the finding of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorinitial two Appraisers.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach ------------------- a mutual agreement as to such amount for a period of ten (10) 10 days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) 10 days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) 20 days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) 20 days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) 30 days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) 20 days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that -------- if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 13 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining If any party shall initiate an appraisal ------------------- procedure to determine the Fair Market Sales Value amount of the Properties or any other amount which may, pursuant to any provision cash equivalent of any Operative Agreementconsideration for Subject Shares under Section 2(f), then the Transferor, on the one hand, and the Purchaser, on the other hand, shall each promptly appoint as an appraiser an individual who shall be determined by a member of a reputable valuation firm. Each appraiser shall, within 30 days of appointment, separately investigate the value of the consideration for the Subject Shares as of the proposed transfer date and shall submit a notice of an appraisal procedureof that value to each party. Each appraiser shall be instructed to determine such value without regard to income tax consequences to the Transferor as a result of receiving cash rather than other consideration. If, Lessor and Lessee shall use upon the following procedure completion of the initial appraisals (the "Appraisal ProcedureEarlier Appraisals"). Lessor and Lessee shall endeavor to reach a mutual agreement as to , the higher appraised value of such amount for a period of ten (10) days from commencement consideration is not more than 110% of the Appraisal Procedure under the applicable section lower appraised value of the Leasesuch consideration, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) appraisals on a per share basis shall be discarded and such average controlling as the amount of the cash equivalent. If the higher appraised value is more than 110% of the lower appraised value, the appraisers, within 10 days of the submission of the last appraisal, shall appoint a third appraiser who shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lesseemember of a reputable valuation firm. The fees and expenses third appraiser shall, within 30 days of his appointment, appraise the value of the appraiser appointed by Lessee shall be paid by Lessee; consideration for the fees and expenses Subject Shares (without regard to the income tax consequences to the Transferor as a result of receiving cash rather than other consideration) as of the appraiser appointed proposed transfer date and submit notice of his appraisal to each party. The value determined by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee controlling as the amount of the cash equivalent unless the value is greater than the two Earlier Appraisals, in which case the higher of the two Earlier Appraisals will control, and Lessorunless that value is lower than the two Earlier Appraisals, in which case the lower of the two Earlier Appraisals will control. If any party fails to appoint an appraiser or if one of the two initial appraisers fails after appointment to submit his appraisal within the required period, the appraisal submitted by the remaining appraiser shall be controlling. The cost of the foregoing appraisals shall be shared one-half by the Transferor and one-half by the Purchaser.

Appraisal Procedure. For determining (a) If an election is made under Section 13.6(c) to proceed under this Section 13.7 to purchase the Fair Market Sales Value interest of the Properties or any other amount which mayNon-Performing Party in and to the Joint Venture at the Appraised Value (hereinafter defined) thereof, pursuant the Electing Party shall give the Non-Performing Party written notice thereof within thirty (30) days after such default, and in such notice shall designate the first appraiser (“First Appraiser”). (b) Within fifteen (15) days after the service of notice referred to any provision of any Operative Agreementin Section 13.7(a) hereof, be determined by an appraisal procedure, Lessor and Lessee the Non-Performing Party shall use give written notice to the following procedure Electing Party designating the second appraiser (the "Appraisal Procedure"“Second Appraiser”). Lessor and Lessee shall endeavor If the Non-Performing Party fails to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of designate the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree Second Appraiser within ten (10) days, then two the Electing Party shall designate the Second Appraiser. The First and Second Appraisers so designated shall meet within ten (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (2010) days after notice from the other party of the selection of its appraiserSecond Appraiser is appointed and if, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been the Second Appraiser is appointed, the First and Second Appraisers do not agree upon Appraised Value, they shall, within fifteen (15) days, appoint a third appraiser (“Third Appraiser”). In the event of the failure or inability of the First and Second Appraisers to appoint a Third Appraiser within such fifteen (15) day period, then the Electing Party shall designate the Third Appraiser. In the event of the failure, refusal or inability of any appraiser to act, a new appraiser shall be appointed in his stead, which appointment shall be made by the American Arbitration Associationparty that initially designated such appraiser so failing, refusing or being unable to act. The decisions Each party shall pay an equal share of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraisers. Any appraiser appointed by Lessor designated to serve in accordance with the provisions of this Agreement shall be paid disinterested and shall be qualified to appraise property of the type owned by Lessor the Joint Venture. (c) The appraisers shall determine the value of one hundred percent (100%) of the Joint Venture, which shall be the amount by which the fair market value, at the time such fees appraisal is made, of all the assets of the Joint Venture exceeds all liabilities of the Joint Venture, including, but not limited to, liabilities for the repayment of all loans to the Joint Venture (“Appraised Value”). If the First Appraiser and expenses the Second Appraiser do not being indemnified agree upon the Appraised Value within the thirty (30) day period set forth above, the Third Appraiser shall determine the Appraised Value of the Joint Venture within thirty (30) days after his appointment. In such event, the Appraised Value of the Joint Venture for purposes of this Agreement shall be the value determined by the First Appraiser or the Second Appraiser which is closest to the Appraised Value determined by the Third Appraiser; provided, however, that if the Appraised Values of the First and Second Appraisers differ from the Appraised Value established by the Third Appraiser by the same amount, the Appraised Value established by the Third Appraiser shall be the Appraised Value of the Joint Venture for purposes of this Agreement. After reaching a decision, the appraisers shall give written notice thereof to all the Joint Venturers. (d) The Electing Party may purchase the Non-Performing Party’s interest in the Joint Venture for a cash price equal to the Appraised Value multiplied by the Joint Venture Percentage Interest of the Non-Performing Party. The closing of such purchase shall occur at a mutually acceptable time within thirty (30) days after notice of the decision of the appraisers has been delivered to the Joint Venturers, and otherwise shall be conducted in accordance with Section 13.6(b) hereof. (e) If the appraisers fail to reach a decision within ninety (90) days after the appointment of the Third Appraiser, the Electing Party shall have the right to withdraw its election to purchase the Withdrawing Party’s interest in the Joint Venture pursuant to this Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor13.7.

Appraisal Procedure. For determining If the Fair Market Sales Value parties are to submit any matter to appraisal pursuant to the terms of this Lease, either Landlord or Tenant (the “Moving Party”) may give notice to the other demanding appraisal and naming an appraiser. The recipient of such notice (the “Recipient”) will, within 10 days after receiving the Moving Party’s notice, give notice to the Moving Party naming an appraiser selected by the Recipient. Each appraiser will be a member of the Properties or any other amount which may, pursuant to any provision American Institute of any Operative Agreement, be determined by an appraisal procedure, Lessor Appraisers and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they canwill have not agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then less than 10 years experience in the appraisal by such appointed appraiser shall be binding on Lessee and Lessorof properties like the Property in the San Francisco Bay Area. If the Recipient fails to notify the Moving Party of the name of the appraisal company it has selected within said 10 day period, the appraisal company selected by the Moving Party will determine the matter submitted. The appraiser(s) will render a determination in writing to Landlord and Tenant simultaneously within 10 days of their appointment. Any determination in which the appraiser appointed by Landlord and the appraiser appointed by Tenant concur will be binding and conclusive upon the parties. 38 EXHIBIT 10.1 If the two (2) appraisers cannot agree are unable to determine the matter within twenty (20) 20 days after both shall have been appointedappointment of the appraiser(s), then they will appoint a third appraiser, who must be an impartial person with qualifications similar to those required of the first two appraisers. If the initial two appraisers are unable to agree upon such appointment within 5 days after expiration of the 20 day period, the third appraiser shall will be selected by the two (2) appraisers orparties themselves, failing agreement if they can agree, within a further period of 10 days. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by the then presiding judge of the San Mateo County Superior Court acting in his private non-judicial capacity. The other party will not raise any question as to such Judge’s full power and jurisdiction to entertain the application for and make the appointment. If the matter cannot be determined by agreement between the two appraisers selected by Landlord and Tenant, or settlement between the parties during the course of appraisal, then it will be determined by the three appraisers in accordance with the following procedure. Each of the two appraisers originally selected by the parties will prepare a written statement of his determination, supported by the reasons therefor, with counterpart copies for each party and the third appraiser. The appraisers must arrange for a simultaneous exchange of their written statements. The role of the third appraiser will be to select which of the two proposed determinations most closely approximates his determination on the matter. The third appraiser will have no right to propose a middle ground or any modification of either of the two determinations. The appraisers will attempt to determine the matter within thirty (30) 10 days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser. The determination chosen by the third appraiser and will constitute the decision determination of the appraisers and be final and binding upon the parties. In the event of a failure, refusal or inability of any appraiser most different from to act, his successor will be appointed by him, but in the average case of the other two (2) shall third appraiser, his successor will be discarded and such average shall be binding on Lessor and Lessee; provided, that if appointed in the highest appraisal and the lowest appraisal are equidistant from manner described above for appointment of the third appraisal, the third appraisal shall be binding on Lessor and Lesseeappraiser. The fees appraisers will have the right to consult experts and expenses competent authorities with factual information or evidence pertaining to a determination on the matter, but any such consultation will be made in the presence of both parties with full right on their part to cross-examine. The appraiser(s) will render the appraiser appointed by Lessee shall be paid by Lessee; determination on the matter in writing, with counterpart copies to each party. The appraisers will have no power to modify the provisions of this Lease. Each party will pay the fees and expenses of the its respective appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and both will share equally the fees and expenses of the third appraiser shall be divided equally between Lessee appraiser, if any. Each party will pay the attorneys’ fees and Lessorexpenses of its counsel and the fees and expenses of any witnesses called by that party. Time is of the essence in connection with any matter submitted to appraisal pursuant to this Section. 39 EXHIBIT 10.

Appraisal Procedure. For determining If the Fair Market Sales Value other Member does not elect to participate in the development of the Properties or any other amount which mayProposed Phase, pursuant then the Member who elects to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use participate in the following procedure Proposed Phase (the "Appraisal ProcedureDeveloping Member") shall have the option to elect to effect such development and purchase the Interests of the other Member (the "Non-Developing Member"). Lessor and Lessee If the Developing Member elects to develop such Proposed Phase, the Developing Member shall endeavor send a notice (the "Buy-Out Notice") to reach a mutual agreement the Non-Developing Member, which Buy-Out Notice shall (i) notify the Non-Developing Member that the Developing Member has elected to proceed with the Proposed Phase, (ii) propose an appraiser to establish the Buy- Out Price (as to such amount defined below) for a period of ten the Non-Developing Member's Interest in the Company (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease"First Appraiser"), and if they cannot (iii) indicate the amount at which the Developing Member would agree within ten to purchase the Non-Developing Member's Interest in the Company (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor"Offer Amount"). If the two (2) appraisers cannot agree within twenty (20) days after both The Non-Developing Member shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both from the date of receipt of the Buy-Out Notice to (A) agree to sell its Interest to the Developing Member at the Offer Amount, or (B) elect for an appraisal. If the Non-Developing Member elects for an appraisal, its response shall have either agree to the First Appraiser, or shall nominate another appraiser (the "Second Appraiser"). If the Non-Developing Member nominates a Second Appraiser, the First Appraiser and the Second Appraiser shall select a third appraiser (the "Third Appraiser"). The First Appraiser, if the Non-Developing Member does not object to the First Appraiser, or the Third Appraiser, if one has been appointedselected, shall be the Appraiser hereunder. The cost of the Appraiser shall be paid equally by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser Developing Member and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; providedNon-Developing Member, provided that if the highest appraisal and Developing Member does not elect to purchase the lowest appraisal are equidistant from Interests of the third appraisalNon-Developing Member, the third appraisal Developing Member shall be binding on Lessor and Lessee. The fees and expenses pay the entire cost of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorAppraiser.

Appraisal Procedure. For determining the Fair Market Sales Value A. The determination of the Properties or any other amount which may, fair market value of the Premises pursuant to any provision Section 3.5 shall be accomplished in accordance with the procedure set forth in this Subsection A of any Operative AgreementSection 12.2. If the General Partners (on behalf of the Partnership) and Telco are unable to agree on the fair market value of the Premises within ten (10) business days of the occurrence of an Excess Cash Proceeds Event giving rise to the determination, be determined by then either party (that is, either the General Partners on behalf of the Partnership or Telco) may request, on behalf of both, within an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a additional further period of ten (10) days from commencement business days, the appointment of a qualified appraiser (the Appraisal Procedure under "Appraiser") by the applicable section President of The Greater Boston Real Estate Board (or any successor association or body of comparable standing if such Board is not then in existence) or the Lease, person to whom the President may delegate that function; and if they cannot agree within ten (10) daysno person then serves in that capacity, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, the person serving in comparable position. The party so requesting shall mutually agree thereupon, but if either party shall fail give notice to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions appointment of the Appraiser within three (3) appraisers shall be given within twenty business days of such appointment. Within fifteen (2015) business days following such notice of the appointment of the third appraiser Appraiser, each party shall set forth and deliver in writing, in duplicate, to the Appraiser its position as to such fair market value supported by the reasons therefor. If either party fails timely to submit its position, the position submitted by the other party shall constitute the decision of the appraiser most different from Appraiser and shall be final and binding upon the average parties. Neither party may amend its position once such position has been delivered to the Appraiser'. At the expiration of such fifteen (15) business day period, the Appraiser shall transmit the position of each party to the other party. The Appraiser shall independently investigate all 'matters bearing on the determination of such fair market value, shall select within fifteen (15) business days following the expiration of the other foregoing fifteen (15) business day period, which of the two submitted positions more closely approximates his determination of such fair market value and shall immediately give notice of such selection to each party. The Appraiser shall, have no right to propose a middle ground or any modification of either of the two submitted positions. The Appraiser shall have the right to consult experts and competent authorities with factual information or knowledge concerning the determination of such fair market value. The position the Appraiser selects as more closely approximating his determination shall constitute the decision of the Appraiser and shall be final and binding upon the parties. Notwithstanding anything to the contrary contained in this Subsection A, the determination by the Appraiser of such fair market value shall be based upon the following conditions and assumptions: (1) that the valuation date is the effective date of the Excess Cash Proceeds Event giving rise to the determination; (2) that the then current use of the Premises is the highest and best use thereof; and (3) that, even if the Premises are encumbered by the TIAA Lease on the valuation date, the determination shall nevertheless be made as if the Premises are not then encumbered by the TIAA Lease. In the event of the failure, refusal or inability of the Appraiser to act, a new Appraiser shall be discarded and such average appointed in his stead, which appointment shall be binding on Lessor and Lessee; providedmade in the same manner as hereinbefore provided for the appointment of such Appraiser so failing, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lesseerefusing or being unable to act. The All fees and expenses incurred with respect to the determination of such fair market value in accordance with this Subsection A -- including, without limitation, the fees of the appraiser appointed by Lessee Appraiser and the costs of both parties (including their reasonable attorneys' fees) with respect to the preparation and submission of their respective positions -- shall be paid by Lessee; the fees and expenses party whose position is not selected by the Appraiser. B. The determination of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified net fair market value of the Interest of a retiring General Partner pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser 6.1 shall be divided equally between Lessee and Lessoraccomplished in accordance with the procedure set forth in this Subsection B of Section 12.

Appraisal Procedure. For determining the Fair Market Sales Value The Appraisal Procedure shall be a procedure ------------------- whereby two independent appraisers, neither of the Properties or any other amount which may, pursuant to any provision whom shall be a manufacturer of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisersUnit, one (1) chosen by the Lessee and one (1) chosen by the Lessor, shall mutually agree thereuponupon the amount in question. The Lessor and the Lessee, but if either as the case may be, shall deliver a written notice to the other party shall fail to choose an appointing its appraiser within twenty (20) 10 business days after notice receipt from the other party of the selection of its a written notice appointing that party's appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two within fifteen (215) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days Business Days of the appointment of the last of the two appraisers as described above, the two appraisers are unable to agree upon the amount in question, a third appraiser and independent appraiser, who shall not be a manufacturer of any Unit, shall be chosen within five (5) Business Days thereafter by the mutual consent of such first two appraisers or, if such first two appraisers fail to agree upon the appointment of a third appraiser, such appointment shall be made by an authorized representative of the American Arbitration Association or any organization successor thereto. The decision of each appraiser so appointed and chosen shall be given within fifteen (15) Business Days after the appraiser most different from the selection of such third appraiser. The average of the other two (2) shall be discarded and three appraisals arrived at by such average three appraisers shall be binding and conclusive on the Lessee and the Lessor. The Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; pay the fees and expenses of the appraiser respective appraisers appointed by Lessor them and shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and share equally the fees and expenses of the third appraiser shall be divided equally between appraiser, if any. Exhibit D --------- (Plans and Specifications) [Lessee and Lessor.to Provide] ABB ENERGY CAPITAL L.L.C. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ December 29, 2000 Keystone Recovery, Inc. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Re: Letter of Credit No. NY-20512-30029001 dated December 28, 2000 In the Face Amount of $8,500,000.00 Issued by Citibank, N.A. to ABB Energy Capital L.L.C. For the Account of Keystone Recovery, Inc. (the "Letter of Credit")

Appraisal Procedure. For The term “qualified real estate appraiser,” as used herein, shall mean and refer to a real estate appraiser designated as a “senior” member or equivalent 9 by a nationally recognized appraisal organization. The appraiser(s) selected shall be qualified for and experienced in appraising ocean-oriented property similar to the 10 Premises. Each appraiser shall have experience in appraising ocean-oriented property in the Southern California area. In the event either party should fail to employ a qualified real 11 estate appraiser within the time required, then the qualified real estate appraiser employed by the other party shall be the sole appraiser responsible for determining the Fair Market Sales Value fair market 12 value of the Properties or any other amount which mayPremises and his opinion shall be binding upon the parties hereto. If two appraisers are timely employed by COUNTY and TENANT, pursuant the two appraisers shall within 13 twenty (20) days select a third qualified real estate appraiser. 14 In the event the two appraisers should fail to any provision select a qualified real estate appraiser prior to expiration of any Operative Agreementthe twenty (20) day period, be determined by an appraisal procedure, Lessor then TENANT and Lessee Director of OC Parks shall use the following procedure 15 each provide a list of three (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of 3) qualified appraisers within ten (10) days from commencement for the previously employed appraisers selection of a third appraiser. In the event the appraisers fail to 16 make said third appraiser selection within seven (7) days then TENANT shall meet with the Director of OC Parks within five (5) days and the names of the Appraisal Procedure under six appraisers 17 previously identified shall be placed in a receptacle and TENANT shall draw one name who shall be the applicable section third appraiser. In the event TENANT fails to provide a list of the Lease, and if they cannot agree within ten three (10) days, then two (23) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessorcannot meet 19 with Director of OC Parks, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from or select the other party of the selection of its third appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses final selection of the third appraiser shall be divided equally between Lessee made by the Director of OC Parks. After selection of the appraisers, the Director of OC Parks shall immediately fix a time and Lessor.21 place for a conference with the Director of OC Parks, TENANT, and the appraiser(s). The conference shall be for the purpose of agreeing upon and giving general instructions to the 22 appraiser(s) which shall include: 23 a. Determine the fair market value of the Premises (land only) as if free and clear of encumbrances and available for the highest and best use permitted by the Lease. 24

Appraisal Procedure. For determining If any party shall initiate an appraisal procedure to determine the Fair Market Sales Value amount of the Properties or any other amount which may, pursuant to any provision cash equivalent of any Operative Agreementconsideration for Subject Shares under subsection (d), then the Seller, on the one hand, and Buyer or Warburg, on the other hand, shall each promptly appoint as an appraiser an individual who shall be determined by a member of a nationally recognized investment banking firm. Each appraiser shall, within 20 business days of appointment, separately investigate the value of the consideration for the Subject Shares as of the proposed transfer date and shall submit a notice of an appraisal procedureof that value to each party. Each appraiser shall be instructed to determine such value by taking into account reasonably quantifiable tax benefits, Lessor and Lessee shall use if any, to the following procedure Seller associated with such Seller receiving other consideration rather than cash. If the appraised values of such consideration (the "Appraisal ProcedureEarlier Appraisals"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten () vary by less than 10) days from commencement of the Appraisal Procedure under the applicable section of the Lease%, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) appraisals on a per share basis shall be discarded and such average controlling as the amount of the cash equivalent. If the appraised values vary by more than 10%, the appraisers, within 10 business days of the submission of the last appraisal, shall appoint a third appraiser who shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lesseemember of a nationally recognized investment banking firm. The fees and expenses third appraiser shall, within 20 business days of his appointment, appraise the value of the appraiser appointed by Lessee shall be paid by Lessee; consideration for the fees and expenses Subject Shares as of the appraiser appointed proposed transfer date and submit notice of his appraisal to each party. The value determined by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee controlling as the amount of the cash equivalent unless that value is greater than the two Earlier Appraisals, in which case the higher of the two Earlier Appraisals will control. If the value determined by the third appraiser is less than the two Earlier Appraisals, the lower of the two Earlier Appraisals will control. If any party fails to appoint an appraiser or if one of the two initial appraisers fails after appointment to submit his appraisal within the required period, the appraisal submitted by the remaining appraiser shall be controlling. The cost of the first appraisal initiated under subsection (d) with respect to any Seller shall be paid by Buyer. Thereafter, the cost of any such appraisals shall be shared one-half by the Seller and Lessorone-half by Warburg or Buyer depending on who initiated the appraisal procedure.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties a Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by the Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.. 5

Appraisal Procedure. For determining When the Fair Market Sales Value appraisal procedure set forth in this subparagraph is required to be used by the provisions of subparagraph 2.02(c)(i) or (ii), then the amount of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, Merger Consideration Adjustment shall be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure")as follows. Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within Within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two Receipt Date (2) appraisers cannot agree or within twenty ten (2010) days after both the completion of the arbitration referred to in Section 2.02(c)(ii) if such arbitration occurs) (A) Parent, on the one hand, and Holdings and the Company, on the other hand, shall have been appointedeach select one Qualified Appraiser (as defined below) (the "Selected Appraiser") to determine the amount of the Merger Consideration Adjustment (if any) arising from the Material Adverse Change set forth in the Change Notice; and (B) Parent, then a third appraiser on the one hand, and Holdings and the Company, on the other hand, shall each give the other written notice (the "Appraiser Notice") of the identity of their respective Selected Appraiser. Parent's Selected Appraiser is sometimes hereinafter called the "Parent Appraiser" and the Selected Appraiser of Holdings and the Company is sometimes hereinafter called the "Holdings Appraiser." The Company shall provide each side's Selected Appraiser with full access during normal business hours to the Company's facilities, products, personnel, books, records and financial statements (subject to the execution of reasonable confidentiality agreements by such Selected Appraisers) solely for purposes of assisting the Selected Appraisers in determining the amount of the Merger Consideration Adjustment. Each Selected Appraiser shall attempt to determine the amount of the Merger Consideration Adjustment, which, for purposes of such appraisal, shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions number of shares of the three Parent's Common Stock equal to the quotient obtained by dividing (3i) appraisers shall be given within twenty the amount (20if any) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.which the

Appraisal Procedure. For determining If an appraisal is required, it shall be conducted as follows: (a) The Withdrawing Member shall give notice to the Fair Market Sales Value Remaining Member of the Properties names of at least three appraisers acceptable to the Withdrawing Member, and the Remaining Member shall select an appraiser from that list, who shall appraise the fair market value of the interest in the Company of the Withdrawing Member. All appraisers included on the Withdrawing Member's list shall be Accredited Senior Appraisers as designated by the American Society of Appraisers, or any shall have comparable experience. (b) Within 90 days after selection of an appraiser, the appraiser shall determine the fair market value of the interest in the Company of the Withdrawing Member on the Effective Date of Withdrawal. Such appraisal shall be conducted in accordance with the standards and guidelines of the Uniform Standards of Professional Appraisal Practice. In determining such value, the appraiser shall consider, among other things (i) the value of the Company as a going concern and the Percentage Interest of the Withdrawing Member, and (ii) if greater, the amount which maythat the Withdrawing Member would receive upon the winding up of the Company, pursuant to any provision and shall be limited by the restrictions set forth in the last sentence of any Operative Agreement, be Section 11.2 above. The value of the interest of the Withdrawing Member as determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If upon the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser Withdrawing Member and the Remaining Member. (c) The decision of the appraiser most different from the average shall be in writing and shall be dated. A copy of the other two (2) decision shall immediately be discarded and such average shall be binding on Lessor and Lessee; provided, that if delivered to the highest appraisal Withdrawing Member and the lowest appraisal are equidistant from Remaining Member. (d) All costs of the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of borne by the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); Withdrawing Member and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorRemaining Member in proportion to their respective Percentage Interests.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal ProcedureAPPRAISAL PROCEDURE"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining In order to determine the Fair Market Sales Appraised Value of the Properties or any other amount which may, shares of Common Stock to be purchased and sold pursuant to any provision the provisions of any Operative Agreementthis Article 10, be the Stockholders holding a majority of the voting power of the Put Shares and the Company shall each appoint one appraiser (collectively, the "Initial Appraisers"), within 20 days after delivery of the Put Notice, which appraisers shall promptly determine a fair market value based on the going-concern value of the Company as a whole within 30 days. If the fair market values determined by an appraisal procedurethe Initial Appraisers (collectively, Lessor the "Original Estimates") do not differ in amount by more than ten percent (10%), the fair market value for purposes of this Section 10.3 shall be the amount equal to the average of the Original Estimates. If the Original Estimates differ in amount by more than ten percent (10%), the Stockholders holding a majority of the voting power of the Put Shares and Lessee the Company shall use mutually agree on a third appraiser within 5 days thereafter, provided that if such Stockholders or the following procedure Company fail to appoint a third appraiser within such 5-day period, then the Initial Appraisers shall appoint a third appraiser within 5 days thereafter. The third appraiser shall independently, within 30 days of such third appraiser's appointment, determine such a fair market value (the "Appraisal ProcedureThird Estimate"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement The average of the Appraisal Procedure under Third Estimate and the applicable section of two Original Estimates shall be deemed to be the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser fair market value that shall be binding on Lessee the Company and Lessorthe holders of the Put Shares. If The Company shall bear all costs of the two Initial Appraiser selected by it and half of the total costs of obtaining a Third Estimate. The Stockholders shall bear, pro rata among themselves (2i) all costs of their Initial Appraiser, and (ii) half of the costs incurred in obtaining a Third Estimate. All appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser appointed pursuant to this Section 10.3 shall be selected by qualified in valuing companies similar to the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both Company and shall have been appointed, by the American Arbitration Associationbe unaffiliated with any party hereto. The decisions Any determination of the three (3) appraisers Appraised Value under this Section 10.3 shall be given within twenty (20) days made without reduction resulting from the lack of liquidity of the appointment of Put Shares or the third appraiser and fact that such Put Shares may, at such time, represent a minority interest in the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and LesseeCompany. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.SECTION 11

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall ------------------- endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section Section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the -------- lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining In the Fair Market Sales Value event the Partners are unable to mutually agree upon the net fair market value of the Properties Partnership and of the Partnership interests to be sold or purchased within thirty (30) days of the date of the appraisal procedure of this Article XV is instituted as provided in this Agreement, they shall each select one (1) appraiser to determine the net fair market value of the Partnership. Each appraiser so selected shall furnish the Partners and the certified public accountants for the Partnership with a written appraisal within sixty (60) days of his or her selection, setting forth his or her determination of the net fair market value. Such appraisals shall be prepared based on the assumption that the Project is the highest and best use of the Property; and the appraisal value shall not include any other amount which mayvalue for any intangible assets of the Partnership, such as good will. If only one appraisal is submitted within the requisite time period, the determination of the fair market value of the Partnership pursuant to any provision of any Operative Agreement, such appraisal shall be determined by an appraisal procedure, Lessor final and Lessee shall use binding on the following procedure (the "Appraisal Procedure")Partners. Lessor and Lessee shall endeavor to reach a mutual agreement as to If both appraisals are submitted within such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Leasetime period, and if they cannot agree within the two appraisals so submitted differ by less than ten percent (10%) daysof the lower of the two, then the average of the two (2) qualified appraisers, one shall be the determination of fair market value and shall be final and binding on the Partners. If the two appraisals differ by ten percent (110%) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party or more of the selection lower of its appraiserthe two (2), then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree shall immediately select a third appraiser who shall within twenty sixty (2060) days after both shall have been appointed, his or her selection make a determination of the fair market value of the Partnership and submit such determination to the Partners and the certified public accountants for the Partnership. The third appraisal will then a third appraiser shall be selected by averaged with the closer of the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by previous appraisals and the American Arbitration Association. The decisions of the three (3) appraisers result shall be given within twenty (20) days the determination of fair market value and shall be final and binding on the appointment of Partners, unless the third appraiser and the decision of the appraiser most different from the average of the other first two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant appraisals differ from the third appraisalappraisal by the same amount, in which case the first two (2) appraisals shall be disregarded and the determination of the fair market value pursuant to the third appraisal shall be final and binding on Lessor and Lesseethe Partners. All appraisers appointed pursuant to this Article XV shall be members of the Institute of Real Estate Appraisers with not less than ten (10) years' experience appraising projects similar to the Project. The fees and expenses cost of the appraiser appointed by Lessee appraisals shall be paid by Lessee; at the fees and expenses expense of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorDefaulting Partner.

Appraisal Procedure. For determining The parties shall use their best ------------------- efforts to complete the Fair Market Sales Value appraisal process within sixty (60) days after the expiration of the Properties or any other amount which mayNegotiation Period and shall instruct their appraisers to do likewise. (i) Each party shall, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of within ten (10) days from commencement following the expiration of the Appraisal Procedure under Negotiation Period, appoint a licensed, disinterested M.A.I. Appraiser having substantial experience with comparable buildings in the applicable section County of Los Angeles (a "Qualified Appraiser") and give written notice of such appointment to the other. If either party fails to notify the other of the Leaseappointment of its Qualified Appraiser within the time period specified above, and if they cannot agree then the Qualified Appraiser appointed shall be the sole appraiser to determine Fair Market Rental Value or the Fair Market Sale Value, as the case may be; (ii) In the event two (2) Qualified Appraisers are chosen as herein provided, the Qualified Appraisers so chosen shall meet within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) business days after notice from the other party of the selection of its appraiserthey are appointed as aforesaid, then the appraisal by and, if within ten (10) business days after such appointed appraiser shall be binding on Lessee and Lessor. If first meeting, the two (2) appraisers cannot Qualified Appraisers fail to come to a mutual determination as to the appropriate Fair Market Rental Value or the Fair Market Sale Value, as the case may be, they themselves shall appoint a third Qualified Appraiser, who shall be a competent and disinterested person with qualifications similar to those required of the first two (2) Qualified Appraisers as herein provided. In the event the first two (2) Qualified Appraisers fail to agree upon and select a third Qualified Appraiser within twenty ten (2010) days after both shall have been appointedthe expiration of said ten (10) day period, then a the third appraiser Qualified Appraiser shall be selected by the two (2) appraisers or, failing agreement Presiding Judge of the Superior Court for the County of Los Angeles and the parties shall not raise any questions or objections as to such third appraiser within thirty Judge's full power, jurisdiction, and authority to select said Qualified Appraiser; (30iii) Within ten (10) days after both shall have been appointedappointment of the third Qualified Appraiser, by the American Arbitration Association. The decisions each of the three (3) appraisers Qualified Appraisers selected shall state in writing his or her respective opinion as to the appropriate Fair Market Rental Value or Fair Market Sale Value, as the case may be, supported by the reasons therefor with counterpart copies to each party; (iv) The Qualified Appraisers shall arrange for a simultaneous exchange of such determinations promptly. The opinion which is the furthest from the middle value shall be given within twenty (20) days excluded and the Fair Market Rental Value or Fair Market Sale Value, as the case may be, for purposes hereof shall be the average of the remaining two (2) opinions and shall constitute the decision of the Qualified Appraisers and be final and binding on the parties. The Qualified Appraisers shall give written notice to the parties stating their determination, and shall furnish to each party a signed copy of such determination. The Qualified Appraisers shall have no power to modify the provisions of the Lease. (v) In the event of a failure, refusal or inability of any Qualified Appraiser to act, a successor shall be appointed by the party who originally appointed the Qualified Appraiser, but in the case of the third Qualified Appraiser, the third Qualified Appraiser's successor shall be appointed in the same manner as provided for appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) Qualified Appraiser. Each party shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; pay the fees and expenses of the appraiser appointed by Lessor party's own Qualified Appraiser and shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and share equally the fees and expenses of the third appraiser shall be divided equally between Lessee Qualified Appraiser and Lessorall other expenses of the appraisal.

Appraisal Procedure. For determining the Fair Market Sales ------------------- Value of the Properties Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor ------------------- and Lessee shall endeavor in good faith to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the -------- highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by the Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties Project or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) appraisers shall be discarded and such average of the other two appraisers shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The reasonable fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by the Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For Within fifteen (15) days after the expiration of the thirty (30)-day period set forth in Paragraph 54 of the Lease, as the case may be, for the mutual agreement of Landlord and Tenant as to the fair market monthly rental, each party hereto, at its cost, shall engage a real estate appraiser to act on its behalf in determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee fair market monthly rental. The appraisers each shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of have at least ten (10) days from commencement of years' experience with leases in first-class high-rise office buildings in downtown Oakland and shall submit to Landlord and Tenant in advance for Landlord's and Tenant's reasonable approval the Appraisal Procedure under the applicable section of the Lease, and if they canappraisal methods to be used. If a party does not agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose appoint an appraiser within twenty such fifteen (20) days after notice from 15)-day period but an appraiser is appointed by the other party of respective party, the selection of its appraiser, then the appraisal by such single appraiser appointed appraiser shall be binding on Lessee the sole appraiser and Lessorshall set the fair market monthly rental. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected are appointed by the two (2) parties as stated in this paragraph, such appraisers or, failing agreement as shall meet promptly and attempt to set the fair market monthly rental. If such third appraiser appraisers are unable to agree within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions appointment of the three (3) second appraiser, the appraisers shall be given elect a third appraiser meeting the qualifications stated in this paragraph within twenty ten (2010) days after the last date the two appraisers are given to set the fair market monthly rental. Each of the appointment parties hereto shall bear one-half (1/2) the cost of appointing the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lesseeappraiser's fee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessora person who has not previously acted in any capacity for either party.

Appraisal Procedure. For determining Whenever the fair market value of the Hotel Properties and the other non-cash assets of the Partnership and its Subsidiaries (the “Fair Market Value”) is to be determined for purposes of this Agreement, such fair market value shall be determined by appraisal in the following manner: (i) all appraisers shall be members of the Appraisal Institute or any organization successor thereto; (ii) CNL LP shall promptly appoint an appraiser and give notice of the appointment to GW LP; (iii) within fifteen (15) days after receipt of CNL LP’s notice, GW LP shall appoint a second appraiser; (iv) if GW LP fails to appoint a second appraiser within fifteen (15) days after receipt of CNL LP’s notice of the appointment of the first appraiser, the first appraiser shall proceed to make his/her appraisal of the Hotel Properties and other non-cash assets of the Partnership and its Subsidiaries and the Fair Market Sales Value shall be the amount determined by the first appraiser; (v) each appraiser shall make an independent written appraisal; and (vi) the expenses of the Properties or any other amount which may, pursuant to any provision first two appraisals shall be borne by the Partner selecting the appraiser and the expense of any Operative Agreement, third appraisal shall be determined by an appraisal procedure, Lessor divided equally between CNL LP and Lessee shall use GW LP. If the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then first two (2) qualified appraisersappraisers so appointed agree on the Fair Market Value, one (1) chosen the Fair Market Value shall be the amount determined by Lessee and one (1) chosen by Lessor, shall mutually them. If the two appraisers so appointed do not agree thereuponon the Fair Market Value, but if either party shall fail to choose an the difference between the Fair Market Value determined by each appraiser within twenty is not more than five percent (205%) days after notice from the other party of the selection lower of its appraiserthe two appraisals, then the appraisal by such appointed appraiser Fair Market Value shall be binding on Lessee and Lessoran amount equal to the quotient obtained by dividing the sum of the fair market values determined by each appraiser by two (2). If the two (2) appraisers canso appointed do not agree on the Fair Market Value, and if the difference between the Fair Market Value determined by each appraiser is more than five percent (5%) of the lower of the two appraisals, the two appraisers shall jointly appoint a third appraiser. If the appraisers so appointed are unable, within forty-five (45) days after the appointment of the second appraiser, either to agree on the Fair Market Value (or to disagree on such value with a difference of five percent or less), or to agree on the appointment of a third appraiser, they shall give notice of such failure to agree to CNL LP and GW LP, and, if such Partners fail to agree upon the selection of a third appraiser within fifteen (15) days after the appraisers appointed by the Partners give such notice, then within twenty (20) days after both shall have been appointedthereafter any Partner upon notice to the other Partners may request such appointment by the then-President of the Appraisal Institute (or any organization successor thereto), then or in his/her failure to act, may apply for such appointment to the United States District Court for the jurisdiction in which the principal place of business of the Partnership is located. If a third appraiser is appointed, he/she shall be selected by make his/her determination of the two (2) appraisers or, failing agreement as to such third appraiser Fair Market Value within thirty (30) days after both his/her appointment and the Fair Market Value shall have been appointed, be the Fair Market Value determined by the American Arbitration Association. The decisions whichever of the three first two appraisers is (3) appraisers shall be given within twenty (20) days of in the appointment opinion of the third appraiser) closest in amount to the Fair Market Value as determined by the third appraiser. The third appraiser and the decision shall not make an independent appraisal of the appraiser most different from Fair Market Value, but the average third appraiser’s function shall be solely to determine which of the other appraisals made by the first two (2) appraisers most closely represents such fair market value. Each appraiser appointed pursuant to this Section 8.8 shall be discarded and a disinterested person of nationally recognized competence who has had a minimum of ten (10) years experience in appraising full service hotels. Each appraiser shall determine the Fair Market Value, as a whole, on the basis of all relevant factors affecting such average fair market value. The party appointing each appraiser shall be binding on Lessor and Lessee; providedobligated, that if promptly after receipt of the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of valuation report prepared by the appraiser appointed by Lessee shall be paid by Lessee; such party, to deliver a copy of such valuation report to the fees and expenses other party or parties in the manner provided elsewhere in this Agreement for the giving of the notices. If a third appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of is appointed, the third appraiser shall be divided equally between Lessee and Lessor.directed, at the time of his or her appointment, to promptly deliver copies of his or her determination of which of the first two (2) appraisals most closely represents the Fair Market Value to all parties in the manner provided elsewhere in

Appraisal Procedure. For The procedure for determining the Fair Market Sales Value fair market sales value or the fair market rental value, as the case may be, of the Properties Items of the Equipment, or any other amount which maypart thereof, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, in the event that Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor fail to reach a mutual agreement as to agree upon such amount for a period of ten (10) days from commencement of the Appraisal Procedure values under the applicable section of the Lease, and if they cannot agree within ten (10circumstances described in Section 1(c) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessorhereof, shall mutually agree thereupon, but be as follows: if either party hereto shall fail have given written notice to choose the other requesting determination of such value for all or any part of the Items of Equipment by the Appraisal Procedure, the parties shall consult for the purpose of appointing a qualified independent appraiser by mutual agreement. If no such appraiser is so appointed within 5 business days after such notice is given, each party shall appoint an independent appraiser within twenty (20) 5 business days after such notice from is given, and the other two appraisers so appointed shall within 5 business days after such notice is given appoint a third independent appraiser. If no such third appraiser is appointed within 5 business days after such notice is given, either party may apply to any court having jurisdiction or to an arbitrator selected by mutual consent of the selection of its appraiserparties to make such appointment, then the appraisal and both parties shall be bound by any appointment made by such court or arbitrator. Any appraiser or appraisers appointed appraiser pursuant to the foregoing procedure shall be binding on Lessee and Lessorinstructed to determine the fair market sales value and/or the fair market rental value, as the case may be, of the Items of Equipment, in accordance with the provisions of this Section, within 10 days after the appointment of such appraiser(s). If the two (2) appraisers cannot agree within twenty (20) days after both parties shall have been appointedappointed a single appraiser, then a third appraiser his or her determination of value shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Associationfinal. The decisions of the If three (3) appraisers shall be given within twenty (20) days of appointed, the appointment of values determined by the third appraiser and the decision of the appraiser most different from the average of the other two (2) three appraisers shall be discarded averaged, and such average shall constitute the fair market sales value, or fair market rental value, as the case may be binding on Lessor for such Items of Equipment. LESSOR: EQUIPMENT LEASING SERVICES, LLC LESSEE: CMARK INTERNATIONAL, INC. BY: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇ TITLE: Member TITLE: President DATE: 7/26/2006 DATE: 7/25/2006 1. Now, therefore, it is resolved that the officers of CMARK INTERNATIONAL, INC. (the "Company") are authorized and directed to enter into and perform certain leases (the "Leases") of certain equipment (the "Equipment"), which Leases will be evidenced by and created under the Master Lease Agreement For Equipment, dated JULY 14,2006, ("Master Lease"), between EQUIPMENT LEASING SERVICES, LLC as Lessor, and CMARK INTERNATIONAL, INC., as Lessee; provided, that if and Equipment Schedule No, 1 dated JULY 14, 2006, attached to the highest appraisal Master Lease and any additional equipment schedules subsequently attached to the lowest appraisal are equidistant from the third appraisalMaster Lease (collectively, the third appraisal shall be binding on Lessor and Lessee"Equipment Schedules"). The fees and expenses lease terms of the appraiser appointed by Lessee all Leases, including, without limitation, Leases of Items of Equipment described on any additional Equipment Schedules, shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorcommence on or before JULY 14, 2008.

Appraisal Procedure. For determining In order to determine the Fair Market Sales Appraised Value or -------------------- the Series C Appraised Value, the holders of a Majority of the Shares of Series A and Series B Preferred Stock (in the case of determinations of the Appraised Value) or the holders of a Majority of the Shares of Series C Preferred Stock (in the case of determinations of the Series C Appraised Value), on the one hand, and the Board (excluding the Series A and Series B Preferred Directors, in the case of the determination of the Appraised Value of the Properties Series A Preferred Stock or any the Series B Preferred Stock, and excluding the Series C Preferred Directors, in the case of the determination of the Appraisal Value of the Series C Preferred Stock), on the other amount hand, shall each appoint one appraiser (collectively, the "Initial Appraisers"), within 20 days after delivery of the ------------------ Put Notice or the Series C Put Notice, as the case may be, which mayappraisers shall promptly determine a fair market value based on the going concern value of the Company as a whole and without adjustment for minority interest or lack of liquidity, pursuant to any provision of any Operative Agreement, be within 30 days. In the event that the fair market values determined by an appraisal procedurethe Initial Appraisers (collectively, Lessor the "Original Estimates") do not differ ------------------ in amount by more than 10 percent, the fair market value for purposes of this Section 5.3 shall be the amount equal to the average of the Original Estimates. In the event that the Original Estimates differ in amount by more than 10 percent, the holders of a Majority of the Shares of Series A and Lessee Series B Preferred Stock (in the case of determinations of the Appraised Value) or the holders of a Majority of the Shares of Series C Preferred Stock (in the case of determinations of the Series C Appraised Value) and the Company shall use mutually agree on a third appraiser within 5 days thereafter, provided that if such holders and the following procedure Company fail to appoint a third appraiser within such 5-day period, then the Initial Appraisers shall appoint a third appraiser within 5 days thereafter. The third appraiser shall independently, within 30 days of such third appraiser's appointment, determine such a fair market value (the "Appraisal ProcedureThird ----- Estimate"). Lessor and Lessee The Original Estimate that is nearest in amount to the Third -------- Estimate shall endeavor be deemed to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of be the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser fair market value that shall be binding on Lessee the Company and Lessorthe holders of the Shares subject to the Put. If the two (2) The Company shall bear all costs of appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser under this Section 5.3. All appraisers appointed pursuant to this Section 5.3 shall be selected by qualified in valuing companies similar to the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both Company and shall have been appointed, by the American Arbitration Associationbe unaffiliated with any party hereto. The decisions Any determination of the three (3) appraisers Appraised Value or the Series C Appraised Value under this Section 5.3 shall be given within twenty (20) days made without reduction resulting from the lack of liquidity of the appointment of Shares subject to Put or the third appraiser and Series C Put or the decision of fact that such Shares may, at such time, represent a minority interest in the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorCompany.

Appraisal Procedure. For determining Whenever the Fair Market Sales Value fair market value of the Properties or any other amount which may, pursuant Project is to any provision of any Operative Agreement, be determined by an the Partners under this Agreement, such fair market value shall be determined by appraisal procedure, Lessor and Lessee shall use in the following procedure manner: (the "Appraisal Procedure"). Lessor and Lessee i) all appraisers shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement be members of the Appraisal Procedure under the applicable section Institute or any organization successor thereto; (ii) C▇▇▇ ▇▇ shall promptly appoint an appraiser and give notice of the Leaseappointment to the CNL LP; (iii) within fifteen (15) days after receipt of the Crow LP’s notice, the CNL LP shall appoint a second appraiser; (iv) if the CNL LP fails to appoint a second appraiser within (15) days after receipt of Crow LP’s notice of the appointment of the first appraiser, the first appraiser shall proceed to make his/her appraisal of the Project and the fair market value of the Project shall be the amount determined by the first appraiser; (v) each appraiser shall make an independent written appraisal; and (vi) the expenses of the first two appraisals shall be borne by the Partner selecting the appraiser and the expense of any third appraisal shall be divided equally between C▇▇▇ ▇▇ and the CNL LP. If the two appraisers so appointed agree on the fair market value of the Project, the fair market value of the Project shall be the amount determined by them. If the two appraisers so appointed do not agree on the fair market value of the Project, but if the difference between the fair market value determined by each appraiser is not more than five percent (5%) of the lower of the two appraisals, the fair market value of the Project shall be an amount equal to the quotient obtained by dividing the sum of the fair market values determined by each appraiser, by two (2). If the two appraisers so appointed do not agree on the fair market value of the Project, and if the difference between the fair market value determined by each appraiser is more than five percent (5%) of the lower of the two appraisals, the two appraisers shall jointly appoint a third appraiser. If the appraisers so appointed shall be unable, within forty-five (45) days after the appointment of the second appraiser, either to agree on the fair market value of the Project (or to disagree on such value with a difference of five percent (5%) or less), or to agree on the appointment of a third appraiser, they cannot shall give written notice of such failure to agree to C▇▇▇ ▇▇ and the CNL LP, and, if such Partners fail to agree upon the selection of a third appraiser within ten fifteen (1015) daysdays after the appraisers appointed by the Partners give such notice, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after thereafter any Partner upon written notice from to the other party Partners may request such appointment by the then-President of the selection of its appraiserAppraisal Institute (or any organization successor thereto), then or in his/her failure to act, may apply for such appointment to the appraisal by such appointed appraiser shall be binding on Lessee and LessorUnited States District Court for the jurisdiction in which the Project is located. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser is appointed, he/she shall be selected by make his/her valuation of the two (2) appraisers or, failing agreement as to such third appraiser Project within thirty (30) days after both shall have been appointed, by his/her appointment and the American Arbitration Association. The decisions fair market value of the three (3) appraisers Project shall be given within twenty (20) days the fair market value of the appointment Project determined by whichever of the first two appraisers is (in the opinion of the third appraiser and appraiser) closest in amount to the decision fair market value of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from Project as determined by the third appraisal, the third appraisal shall be binding on Lessor and Lesseeappraiser. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall not make an independent appraisal of the Project, but the third appraiser’s function shall be divided equally between Lessee solely to determine which of the appraisals made by the first two appraisers most closely represents such fair market value. Each appraiser appointed pursuant to this Section shall be a disinterested person of nationally recognized competence with experience in appraising major commercial properties. Each appraiser shall determine the fair market value of the Project, as a whole, on the basis of all relevant factors affecting fair market value (and Lessor.without regard to the Master Leases). The party appointing each appraiser shall be obligated, promptly after receipt of the valuation

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorLessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement).

Appraisal Procedure. For determining In the event that it becomes necessary to determine the Fair Market Sales Value or Fair Market Rental of any property for any purpose of the Properties applicable Lease, and the parties cannot agree amongst themselves on such Fair Market Value or any other amount which Fair Market Rental, Tenant may request that Landlord select, or Landlord may on its own initiative select, a Qualified Appraiser (as hereinafter defined). If Tenant does not accept the Fair Market Value or Fair Market Rental, as the case may be, of such property as of the relevant date as determined by such Qualified Appraiser, Tenant may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of within ten (10) days from commencement after receiving the report of such Qualified Appraiser, by written notice to Landlord, appoint a second Qualified Appraiser. If Tenant does not so appoint a second Qualified Appraiser within such ten (10) day period, Tenant shall be deemed to have accepted the Appraisal Procedure under Fair Market Value or Fair Market Rental determined by the applicable section of the Lease, and if they cannot agree first Qualified Appraiser. The two appraisers so designated shall meet within ten (10) daysdays after the second Qualified Appraiser is designated, then two and, if within ten (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (2010) days after notice from the other party second Qualified Appraiser is designated, the two appraisers do not agree upon the Fair Market Value or Fair Market Rental, as the case may be, of any property as of the selection of its appraiserrelevant date, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two appraisers shall designate a third Qualified Appraiser, within ten (2) appraisers cannot agree within twenty (2010) days after both shall have been appointed, then thereafter. In the event that the two appraisers are unable to agree upon the appointment of a third Qualified Appraiser within such ten (10) day period, either Landlord or Tenant, on behalf of both, may then request appointment of such appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by then president of the American Arbitration Association. The decisions In the event of the three (3) appraisers a failure, refusal or inability of any appraiser to act, a new Qualified Appraiser shall be given within twenty (20) days of appointed in his stead, which appointment shall be made in the same manner as hereinabove provided for the appointment of such appraiser so failing, refusing or being unable to act. In the third event that all appraisers cannot agree upon such value within ten (10) days as aforesaid, each appraiser shall submit his appraisal of such value to the other two appraisers in writing, and the decision of the appraiser most different from such value shall be determined by calculating the average of the other two numerically closest (2) shall be discarded and such average shall be binding on Lessor and Lessee; providedor, that if the highest appraisal and values are equidistant, all three) values determined by the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorthree appraisers.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section Section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 13 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "“Appraisal Procedure"”). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section Section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee▇▇▇▇▇▇; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation AgreementAgreement or otherwise by Lessee pursuant to the Operative Agreements); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining If the Fair Market Sales Value of the Properties or parties are to submit any other amount which may, matter to appraisal pursuant to any provision the terms of any Operative Agreementthis Lease, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure either Landlord or Tenant (the "Appraisal ProcedureMoving Party")) may give notice to the other demanding appraisal and naming an independent and neutral appraiser or appraisal company. Lessor The recipient of such notice (the "Recipient") will, within 15 days after receiving the Moving Party's notice, give notice to the Moving Party naming an independent and Lessee shall endeavor to reach neutral appraiser or appraisal company selected by the Recipient. Each appraiser will be a mutual agreement as to such amount for a period of ten (10) days from commencement member of the Appraisal Procedure under American Institute of Appraisers and will have not less than 10 years experience in the applicable section appraisal of properties like the Building in the Relevant Market. If the Recipient fails to notify the Moving Party of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party name of the selection of its appraiserappraisal company it has selected within said 15 day period, then the appraisal company selected by such the Moving Party will determine the matter submitted. The appraiser(s) will render a determination in writing to Landlord and Tenant simultaneously within 15 days of their appointment. Any determination in which the appraiser appointed by Landlord and the appraiser shall appointed by Tenant concur will be binding on Lessee and Lessorconclusive upon the parties. If the two (2) appraisers cannot agree are unable to determine the matter within twenty (20) 20 days after both shall have been appointedappointment of the second of the two appraiser(s), then they will appoint a third appraiser, who will be an independent and neutral person with qualifications the same as to those required of the first two appraisers. If the initial two appraisers are unable to agree upon such appointment within 5 days after expiration of the 20 day period, the third appraiser shall will be selected by the two parties themselves, if they can agree, within a further period of 10 days. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by Judicial Dispute Resolution, LLC (2"JDR") appraisers orof Seattle, failing agreement Washington. The other party will not raise any question as to such JDR's full power and jurisdiction to entertain the application for and make the appointment. If the matter cannot be determined by agreement between the two appraisers selected by Landlord and Tenant, or settlement between the parties during the course of appraisal, then it will be determined by the three appraisers in accordance with the following procedure. Each of the two appraisers originally selected by the parties will prepare a written statement of his determination, supported by the reasons therefor, with counterpart copies for each party and the third appraiser. The appraisers will arrange for a simultaneous exchange of their written statements. The role of the third appraiser will be to select which of the two proposed determinations most closely approximates his determination on the matter. The third appraiser will have no right to propose a middle ground or any modification of either of the two determinations. The third appraiser will determine the matter within thirty (30) 10 days after both shall have been appointed, his or her receipt of the written statements of each of the first two appraisers. The determination chosen by the American Arbitration Association. The decisions third appraiser will constitute the determination of the three (3) appraisers shall and be given within twenty (20) days final and binding upon the parties. In the event of a failure, refusal or inability of any appraiser to act, his successor will be appointed by him, but in the case of the third appraiser, his successor will be appointed in the manner described above for appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lesseeappraiser. The fees appraisers will have the right to consult experts and expenses competent authorities with factual information or evidence pertaining to a determination on the matter, but any such consultation will be made in the presence of both parties with full right on their part to cross-examine. The appraiser(s) will render the appraiser appointed by Lessee shall be paid by Lessee; determination on the matter in writing, with counterpart copies to each party. The appraisers will have no power to modify the provisions of this Lease. Each party will pay the fees and expenses of the its respective appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and both will share equally the fees and expenses of the third appraiser shall be divided equally between Lessee appraiser, if any. Each party will pay the attorneys' fees and Lessor.expenses of

Appraisal Procedure. For determining (a) The Fair Market Value of any non-cash consideration included in a Third Party Offer will be determined by agreement between the Transferor and those Offerees holding seventy-five percent (75%) or more of the issued and outstanding Shares owned by the Offerees (the “Requisite Holders”) or, in the event the Transferor and the Requisite Holders have not agreed upon such Fair Market Value by the tenth (10th) day following the date of the Transferor’s notice, such Fair Market Value will be determined by appraisal pursuant to paragraph (b) hereof. (b) If the Transferor and the Offerees have failed to agree upon the Fair Market Sales Value of the Properties or any other amount which maynon-cash consideration as provided above, pursuant to any provision of any Operative Agreement, such Fair Market Value will be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"pursuant to this Section 6.3(b). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of Within ten (10) days from commencement after the determination for the need for an appraisal, the Offerees (by a vote of the Appraisal Procedure under the applicable section Offerees holding a majority of the LeaseShares held by all the Offerees) will designate one appraiser experienced in such appraisals, and if they cannot agree within ten the Transferor will designate one such appraiser. Within thirty (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (2030) days after notice from their selection, the other party two appraisers so selected will each determine the Fair Market Value of such non-cash consideration. In the event such determinations vary by less than ten percent (10%) of the selection higher determination, such Fair Market Value will equal the average of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessortwo determinations. If such determinations vary by ten percent (10%) or more of the higher determination, the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then will promptly designate a third appraiser shall be selected by with similar qualifications. No Member will provide, and the selecting Members will instruct the two (2) appraisers orinitially selected not to provide, failing agreement any information to the third appraiser as to the determinations of the two appraisers initially selected, or otherwise influence such third appraiser’s determination in any way. The third appraiser will make a determination of the Fair Market Value within thirty (30) days after both shall have been appointed, by the American Arbitration Associationits selection. The decisions of the three (3) appraisers shall Fair Market Value will be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from equal to the average of the other two (2) shall closest determinations of the three appraisers, or, if the difference between the highest and middle determination is equal to the difference between the middle and lowest determination, then the Fair Market Value will be discarded and such average shall equal to the middle determination. The Fair Market Value determined pursuant to this Section will be binding and conclusive on Lessor the Transferor and Lessee; provided, that if all Offerees. Any appraisal cost incurred under this Section 6.3 will be borne by the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and LessorTransferor.

Appraisal Procedure. For determining On the earlier of 160 days prior to the end of the Lease Term or the date on which either party hereto shall have given written notice to the other requesting determination of the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined Equipment by an appraisal procedure, Lessor and Lessee shall use the following procedure this Appraisal Procedure (the "Appraisal ProcedureAPPRAISAL NOTICE"), the parties shall consult for the purpose of appointing a qualified American Society of Appraisers ("ASA") certified appraiser by mutual agreement. Lessor and Lessee shall endeavor to reach a mutual agreement as to If no such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree appraiser is so appointed within ten (10) daysbusiness days after the Appraisal Notice is given, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either each party shall fail appoint a certified ASA appraiser and the two appraisers shall attempt to choose an appraiser within twenty (20) days after notice from jointly agree on the other party Fair Market Value of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and LessorEquipment. If the two (2) appraisers cannot agree within twenty (20) days after both so agree, then the two appraisers so appointed shall appoint a third certified ASA appraiser. If the two appraisers have been appointed, then unable to agree on the Fair Market Value and on a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointedthe date of their appointment, by Lessor may apply to the ASA or the American Arbitration AssociationAssociation to make such appointment, and both parties shall be bound by any such appointment. The decisions Any appraiser or appraisers appointed pursuant to this Appraisal Procedure shall be bound to determine the Fair Market Value of the three Equipment within thirty (3) appraisers shall be given within twenty (2030) days of after the appointment of the third final appraiser to be employed pursuant to this Appraisal Procedure. If the parties shall have appointed a single appraiser, his or her determination of value shall be final, binding and conclusive on the parties. If the parties have appointed two appraisers, then their jointly agreed determination of value shall be final, binding and conclusive on the parties. If three appraisers shall be appointed, the values determined by the three appraisers shall be averaged, the appraisal having a value furthest from the average shall be discarded and the decision of the appraiser most different from remaining two appraised values shall be averaged, and the average of the other remaining two (2) appraised values shall be discarded final, binding and such average conclusive on the parties. All capitalized terms used herein and not defined herein shall be binding on Lessor have the meanings set forth or referred to in the Lease Schedule. Except as specifically set forth herein, all of the terms and Lessee; provided, conditions of the Lease shall remain in full force and effect and are hereby ratified and affirmed. To the extent that if the highest appraisal and provisions of this Rider conflict with any provisions contained in the lowest appraisal are equidistant from the third appraisalLease, the third appraisal provisions of this Rider shall be binding on control. Dated as of: DECEMBER 02, 2002 FLEET CAPITAL CORPORATION NEW JERSEY NATURAL GAS COMPANY By: /s/ Sandra Buonaiuto By: /s/ T. C. Hearne -------------------- --------------------- ▇▇me: SANDRA BUONAIUTO Name: T. C. HEARNE Title: ASSISTANT ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: SVP + TRE▇▇▇▇▇▇ ▇▇▇▇hase Option Rider/Fmv w/Floor W/Ret [FLEET CAPITAL CORPORATION LOGO] AGENCY AGREEMENT One Financial Plaza Providence, Rhode Island 02903-2448 This Ag▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (▇▇▇▇ "▇▇▇▇▇▇▇▇▇") ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇de a part of that certain Master Equipment Lease No. 35352 dated as of September 25, 2001 (the "MASTER LEASE") by and between the undersigned Lessor and Lessee. The fees Master Lease and expenses all Lease Schedules, Acceptance Certificates, exhibits, riders, amendments and addenda thereto are collectively referred to as the "LEASE". All capitalized terms used herein and not defined herein shall have the meanings set forth or referred to in the Master Lease. Except as may be otherwise provided herein, all of the appraiser appointed terms and provisions of the Master Lease shall remain in full force and effect, are applicable to the subject matter of this Agreement, and are hereby ratified and affirmed. To the extent that the provisions of this Agreement conflict with any provisions contained in the Master Lease, the provisions of this Agreement shall control. Lessee has requested that Lessor purchase and lease to Lessee from time to time certain equipment selected by Lessee shall be paid by Lessee; and described on EXHIBIT A attached hereto (the fees "EQUIPMENT"). In order to facilitate the purchase, delivery, acceptance and expenses lease of Equipment under the Lease from vendors and suppliers identified on Exhibit A hereto (each, a "VENDOR") in the ordinary course of business, Lessor is willing to appoint Lessee as its agent and attorney for the sole and limited purpose of selecting and paying for certain items of the appraiser appointed by Equipment on behalf of Lessor shall be paid by Lessor (under the terms and conditions set forth herein and in the Master Lease, and Lessee is willing to accept such fees and expenses not being indemnified pursuant to Section 11 appointment. In consideration of the Participation Agreement); mutual promises and covenants hereinafter set forth, and for other good and valuable consideration, the fees receipt and expenses sufficiency of which are hereby acknowledged, the third appraiser shall be divided equally between Lessee and Lessor.parties hereto hereby agree as follows:

Appraisal Procedure. For determining In the event that it becomes necessary to determine the Fair Market Sales Value or Fair Market Rental of any property for any purpose of the Properties applicable Lease, and the parties cannot agree amongst themselves on such Fair Market Value or any other amount which Fair Market Rental, Tenant may request that Landlord select, or Landlord may on its own initiative select, a Qualified Appraiser (as hereinafter defined). If Tenant does not accept the Fair Market Value or Fair Market Rental, as the case may be, of such property as of the relevant date as determined by such Qualified Appraiser, Tenant may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of within ten (10) days from commencement after receiving the report of such Qualified Appraiser, by written notice to Landlord, appoint a Second Qualified Appraiser. If Tenant does not so appoint a Second Qualified Appraiser within such ten (10) day period, Tenant shall be deemed to have accepted the Appraisal Procedure under Fair Market Value or Fair Market Rental determined by the applicable section of the Lease, and if they cannot agree first Qualified Appraiser. The two appraisers so designated shall meet within ten (10) daysdays after the second appraiser as designated, then two and, if within ten (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (2010) days after notice from the other party second appraiser is designated, the two appraisers do not agree upon the Fair Market Value or Fair Market Rental, as the case may be, of any property as of the selection of its appraiserrelevant date, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two appraisers shall designate a third Qualified Appraiser, within ten (2) appraisers cannot agree within twenty (2010) days after both shall have been appointed, then thereafter. In the event that the two appraisers are unable to agree upon the appointment of a third Qualified Appraiser within such ten (10) day period, either Landlord or Tenant, on behalf of both, may then request appointment of such appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by then president of the American Arbitration Association. The decisions In the event of the three (3) appraisers a failure, refusal or inability of any appraiser to a new appraiser shall be given within twenty (20) days of appointed in his stead, which appointment shall be made in the same manner as hereinabove provided for the appointment of such appraiser so failing, refusing or being unable to act. in the third event that all appraisers cannot agree upon such value ten (10) days as aforesaid, each appraiser shall submit his appraisal of such value to the other two appraisers in writing, and the decision of the appraiser most different from such value shall be determined by calculating the average of the other two numerically closest (2) shall be discarded and such average shall be binding on Lessor and Lessee; providedor, that if the highest appraisal and values are equidistant, all three) values determined by the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorthree appraisers.

Appraisal Procedure. For determining In the event that it becomes necessary to determine the Fair Market Sales Value or Fair Market Added Value of any Facility for any purpose of this Agreement and the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they parties cannot agree within ten (10) daysthereon, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, such Fair Market Value shall mutually agree thereupon, but if be determined upon the written demand of either party shall fail to choose in accordance with the following procedure. The party requesting an appraiser within twenty (20) days after notice from the other party of the selection of its appraiserappraisal, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser Notice given within thirty (30) days after both the date of the event that requires or permits such procedure, shall propose and unilaterally approve an appraiser licensed to perform MAI appraisals and experienced in the valuation of assisted living, independent living or skilled nursing facilities (a "Qualified Appraiser"). The other party, by Notice given within fifteen (15) days after receipt of such Notice appointing the first Qualified Appraiser, may appoint a second Qualified Appraiser. If the other party fails to appoint the second Qualified Appraiser within such fifteen (15) day period, such party shall have been appointedwaived its right to appoint a Qualified Appraiser, and the first Qualified Appraiser shall make the sole determination of the Fair Market Value. The selected Qualified Appraiser or Appraisers shall thereupon determine the Fair Market Value. Each such Qualified Appraiser shall, within thirty (30) days following his appointment, submit his appraisal of fair market value to each of Capstead and Brookdale in writing, and if the fair market values set forth in such appraisals vary by five percent (5%) or less of the greater value, the Fair Market Value shall be determined by calculating the average of the two fair market values determined by the two appraisers. If the fair market values set forth in the two appraisals vary by more than five percent (5%) of the greater of the two values, the two Qualified Appraisers shall select a third Qualified Appraiser within an additional fifteen (15) days following the submittal of the last appraisal. If the two appraisers are unable to agree upon the appointment of a third appraiser within such fifteen (15) day period, either party may, upon written notice to the other, request that such appointment be made by the then President (or equivalent officer) of the Chapter of the American Institute of Real Estate Appraisers in the Facility State , or his or her designee or, if there is no such organization or if such individual declines to make such appointment, by any state or Federal court of competent jurisdiction for the American Arbitration AssociationFacility State. The decisions of the three (3) appraisers shall be given within Within twenty (20) days of the appointment of following his selection, the third appraiser and shall review the decision of the appraiser most different from the average of the other two (2) appraisals and select the appraisal that he determines most clearly reflects the fair market value. The selected fair market value shall then be the Fair Market Value. In connection with the appraisal process, Brookdale shall provide the appraisers full access during normal business hours to examine the Facilities, the books, records and files of Brookdale and the Brookdale Lessees and all agreements, leases and other operating agreements relating to the Facilities. The costs of each party's appraisal shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if borne by the highest appraisal selecting party and the lowest appraisal are equidistant from the third appraisal, cost of the third appraisal shall be binding on Lessor shared equally. Upon determining such value, the appraisers shall promptly notify Capstead and LesseeBrookdale in writing of such determination. The fees and expenses determination of the appraiser appointed by Lessee Qualified Appraisers made in accordance with the foregoing provisions shall be paid by Lessee; final and binding upon the fees parties, such determination may be entered as an award in arbitration in a court of competent jurisdiction, and expenses of the appraiser appointed by Lessor shall judgment thereon may be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorentered.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties a Property or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by the Lessee; . Notwithstanding the fees and expenses foregoing, for determining the Fair Market Sales Value of a Property for any purpose under this Section 21, in lieu of the foregoing Appraisal Procedure, an appraiser appointed by Lessor shall may be paid selected by Lessor (such fees as directed by the Required Lenders) and expenses consented to by the Agent (which consent shall not being indemnified pursuant to Section 11 of the Participation Agreementbe unreasonably withheld); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining If the Fair Market Sales Value parties are to submit any matter to appraisal pursuant to the terms of this Lease, either Landlord or Tenant (the “Moving Party”) may give notice to the other demanding appraisal and naming an appraiser. The recipient of such notice (the “Recipient”) will, within 10 days after receiving the Moving Party’s notice, give notice to the Moving Party naming an appraiser selected by the Recipient. Each appraiser will be a member of the Properties or any other amount which may, pursuant American Institute of Appraisers and will have not less than 10 years experience in the appraisal of properties like the Property in the San Francisco Bay Area. If the Recipient fails to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use notify the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement Moving Party of the Appraisal Procedure under the applicable section name of the Leaseappraisal company it has selected within said 10 day period, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal company selected by such the Moving Party will determine the matter submitted. The appraiser(s) will render a determination in writing to Landlord and Tenant simultaneously within 10 days of their appointment. Any determination in which the appraiser appointed by Landlord and the appraiser shall appointed by Tenant concur will be binding on Lessee and Lessorconclusive upon the parties. If the two (2) appraisers cannot agree are unable to determine the matter within twenty (20) 20 days after both shall have been appointedappointment of the appraiser(s), then they will appoint a third appraiser, who must be an impartial person with qualifications similar to those required of the first two appraisers. If the initial two appraisers are unable to agree upon such appointment within 5 days after expiration of the 20 day period, the third appraiser shall will be selected by the two (2) appraisers orparties themselves, failing agreement if they can agree, within a further period of 10 days. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by the then presiding judge of the San Mateo County Superior Court acting in his private non-judicial capacity. The other party will not raise any question as to such Judge’s full power and jurisdiction to entertain the application for and make the appointment. If the matter cannot be determined by agreement between the two appraisers selected by Landlord and Tenant, or settlement between the parties during the course of appraisal, then it will be determined by the three appraisers in accordance with the following procedure. Each of the two appraisers originally selected by the parties will prepare a written statement of his determination, supported by the reasons therefor, with counterpart copies for each party and the third appraiser. The appraisers must arrange for a simultaneous exchange of their written statements. The role of the third appraiser will be to select which of the two proposed determinations most closely approximates his determination on the matter. The third appraiser will have no right to propose a middle ground or any modification of either of the two determinations. The appraisers will attempt to determine the matter within thirty (30) 10 days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser. The determination chosen by the third appraiser and will constitute the decision determination of the appraisers and be final and binding upon the parties. In the event of a failure, refusal or inability of any appraiser most different from to act, his successor will be appointed by him, but in the average case of the other two (2) shall third appraiser, his successor will be discarded and such average shall be binding on Lessor and Lessee; provided, that if appointed in the highest appraisal and the lowest appraisal are equidistant from manner described above for appointment of the third appraisal, the third appraisal shall be binding on Lessor and Lesseeappraiser. The fees appraisers will have the right to consult experts and expenses competent authorities with factual information or evidence pertaining to a determination on the matter, but any such consultation will be made in the presence of both parties with full right on their part to cross-examine. The appraiser(s) will render the appraiser appointed by Lessee shall be paid by Lessee; determination on the matter in writing, with counterpart copies to each party. The appraisers will have no power to modify the provisions of this Lease. Each party will pay the fees and expenses of the its respective appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and both will share equally the fees and expenses of the third appraiser shall be divided equally between Lessee appraiser, if any. Each party will pay the attorneys’ fees and Lessorexpenses of its counsel and the fees and expenses of any witnesses called by that party. Time is of the essence in connection with any matter submitted to appraisal pursuant to this Section.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and each applicable Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and each applicable Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by such Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on such Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and such Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and such Lessee. The fees and expenses of the appraiser appointed by such Lessee shall be paid by such Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between such Lessee and LessorLessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement).

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses and Lessor's share of the fees and expenses of the third appraiser as described below not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "“Appraisal Procedure"”). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten often (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the each appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining On the earlier of 160 days prior to the end of the Lease Term or the date on which either party hereto shall have given written notice to the other requesting determination of the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined Equipment by an appraisal procedure, Lessor and Lessee shall use the following procedure this Appraisal Procedure (the "Appraisal ProcedureAPPRAISAL NOTICE"), the parties shall consult for the purpose of appointing a qualified American Society of Appraisers ("ASA") certified appraiser by mutual agreement. Lessor and Lessee shall endeavor to reach a mutual agreement as to If no such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree appraiser is so appointed within ten (10) daysbusiness days after the Appraisal Notice is given, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either each party shall fail appoint a certified ASA appraiser and the two appraisers shall attempt to choose an appraiser within twenty (20) days after notice from jointly agree on the other party Fair Market Value of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and LessorEquipment. If the two (2) appraisers cannot agree within twenty (20) days after both so agree, then the two appraisers so appointed shall appoint a third certified ASA appraiser. If the two appraisers have been appointed, then unable to agree on the Fair Market Value and on a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointedthe date of their appointment, by Lessor may apply to the ASA or the American Arbitration AssociationAssociation to make such appointment, and both parties shall be bound by any such appointment. The decisions Any appraiser or appraisers appointed pursuant to this Appraisal Procedure shall be bound to determine the Fair Market Value of the three Equipment within thirty (3) appraisers shall be given within twenty (2030) days of after the appointment of the third final appraiser to be employed pursuant to this Appraisal Procedure. If the parties shall have appointed a single appraiser, his or her determination of value shall be final, binding and conclusive on the parties. If the parties have appointed two appraisers, then their jointly agreed determination of value shall be final, binding and conclusive on the parties. If three appraisers shall be appointed, the values determined by the three appraisers shall be averaged, the appraisal having a value furthest from the average shall be discarded and the decision of the appraiser most different from remaining two appraised values shall be averaged, and the average of the other remaining two (2) appraised values shall be discarded final, binding and such average conclusive on the parties. All capitalized terms used herein and not defined herein shall have the meanings set forth or referred to in the Lease Schedule. Except as specifically set forth herein, all of the terms and conditions of the Lease shall remain in full force and effect and are hereby ratified and affirmed. To the extent that the provisions of this Rider conflict with any provisions contained in the Lease, the provisions of this Rider shall control. Dated as of: December 6, 2005 BANC OF AMERICA LEASING & CAPITAL,LLC, NEW JERSEY NATURAL GA▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇-MERGER TO FLEET CAPITAL CORPORATION By: /s/ Cheryl A. Valcourt By: /s/ Timothy C. Hearne -------------------------------- ------------------------------- Name: Cheryl A. Valcourt Name: Timothy C. Hearne Title: Seni▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Sr. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Treasurer Purchase Option Rider/Fmv w/Ret Fee [INITIAL] [BANK OF AMERICA LOGO] This is counterpart No. 1 of a total of 2 counterparts. Only counterpart No. 1 shall be binding considered chattel paper for purposes of the Uniform Commercial Code and a security interest may be perfected only by possession of counterpart No. 1 EARLY PURCHASE OPTION RIDER (single option) One Financial Plaza Providence, Rhode Island 02903-2448 This Ea▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇ "▇▇▇▇▇") ▇▇ ▇▇▇▇▇▇▇▇ ▇▇ and made a part of that certain Lease Schedule No. 40739-11500-005, dated as of December 6, 2005 (the "LEASE SCHEDULE"), ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ the undersigned parties. So long as no Event of Default has occurred and is continuing under the Lease, and upon at least 90 days prior written notice to Lessor, Lessee shall have the right to terminate the Lease Term for all but not less than all of the Equipment on the Rental Payment Date for Rental Payment Number 117 (the "TERMINATION DATE"). Lessee shall pay to Lessor on the Termination Date an amount equal to: (a) all Rental Payments, late charges and other amounts due and owing under the Lease; plus (b) all taxes, assessments and other charges due or payable in connection with the sale of the Equipment to Lessee; providedplus (c) 18.79% of the Acquisition Cost of the Equipment. Provided that Lessor shall have received all amounts payable hereunder on the Termination Date, and that if no Event of Default then exists and is continuing under the highest appraisal Lease, Lessor shall convey all of its right, title and interest in and to the Equipment to Lessee on the Termination Date, on an "AS-IS," "WHERE-IS" BASIS WITHOUT REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, and without recourse to Lessor, except that the Equipment shall be free and clear of all liens created by Lessor. In the event Lessee shall not pay all amounts due hereunder on the Termination Date, then the Lease Term for the Equipment shall continue in full force and effect, and this Rider shall be null and void and of no further force and effect. All capitalized terms used herein and not defined herein shall have the meanings set forth or referred to in the Lease Schedule. Except as specifically set forth herein, all of the terms and conditions of the Lease shall remain in full force and effect and are hereby ratified and affirmed. To the extent that the provisions of this Rider conflict with any provisions contained in the Lease, the provisions of this Rider shall control. Dated as of: December 6, 2005 BANC OF AMERICA LEASING & CAPITAL, LLC, NEW JERSEY NATUR▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇SOR-BY-MERGER TO FLEET CAPITAL CORPORATION By: /s/ Cheryl A. Valcourt By: /s/ Timothy C. Hearne -------------------------------- ------------------------------- Name: Cheryl A. Valcourt Name: Timothy C. Hearne Title: Seni▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Sr. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & Treasurer Early Purchase Option Rider (Single Option) [INITIAL] [FLEET CAPITAL CORPORATION LOGO] LEASE SCHEDULE NO. 35352-00001 (True Lease Schedule) 50 Kennedy Plaza Providence, Rhode Island 02903-2305 ▇▇▇▇▇▇: NEW JERSEY NATURAL GAS COMPANY ADDRESS: 1415 Wycoff Road Wa▇▇, ▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇ Lease Schedule No. 35352-00001 dated as of October 12, 2001 is entered into pursuant to and incorporates by this reference, all of the terms and provisions of that certain Master Equipment Lease Agreement No. 35352 dated as of September 25, 2001 (the "MASTER LEASE"), for the lease of the Equipment described in Schedule A attached, hereto. This Lease Schedule shall constitute a separate, distinct and independent lease of the Equipment and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and contractual obligation of Lessee. The fees References to the "THE LEASE" or "THIS LEASE" shall mean and expenses refer to this Lease Schedule, together with the Master Lease and all exhibits, addenda, schedules, certificates, riders and other documents and instruments executed and delivered in connection with this Lease Schedule, all as the same may be amended or modified from time to time. All capitalized terms used herein and not defined herein shall have the meanings set forth or referred to in the Master Lease. By its execution and delivery of this Lease Schedule, Lessee hereby reaffirms all of the appraiser appointed by Lessee shall be paid by Lessee; representations, warranties and covenants contained in the fees and expenses Master Lease, as of the appraiser appointed by date hereof, and further represents and warrants to Lessor shall be paid by Lessor (such fees that no Event of Default, and expenses not being indemnified pursuant to Section 11 no event or condition which with notice on the passage of time or both would constitute an Event of Default, has occurred and is continuing as of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessordate hereof.

Appraisal Procedure. For determining In the event that it becomes necessary to determine the Fair Market Sales Value, Fair Market Value Purchase Price or Fair Market Rental of the Properties Leased Property or a Substitute Property for any other amount which maypurpose of this Lease, pursuant the party required or permitted to any provision give notice of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure such required determination (the "Appraisal ProcedureInitiating Party")) shall include in such notice the name of a designated Qualified Appraiser (hereinafter defined) on its behalf. Lessor and Lessee Within 10 (ten) days after notice, the party receiving such notice (the "Responding Party") shall, by written notice to the other, appoint a second Qualified Appraiser. If the Responding Party shall endeavor fail, neglect or refuse within said ten-day period to reach a mutual agreement as designate another appraiser willing so to such amount for a period of act, the appraiser designated by the Initiating Party shall designate the second Qualified Appraiser within ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree thereafter. The two appraisers so designated shall meet within ten (10) daysdays after the second appraiser is designated, then two and, if within ten (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (2010) days after notice from the other party second appraiser is designated, the two appraisers do not agree upon the Fair Market Value, Fair Market Value Purchase Price or Fair Market Rental, as the case may be, of the selection applicable property as of its appraiserthe relevant date, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two appraisers shall designate a third Qualified Appraiser, within ten (2) appraisers cannot agree within twenty (2010) days after both shall have been appointed, then thereafter. In the event that the two appraisers are unable to agree upon the appointment of a third Qualified Appraiser, within such ten (10) day period, either Landlord or Tenant, on behalf of both, may then request appointment of such appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by then president of the American Arbitration Association. The decisions In the event of the three (3) appraisers a failure, refusal or inability of any appraiser to act, a new appraiser shall be given within twenty (20) days of appointed in his stead, which appointment shall be made in the same manner as hereinabove provided for the appointment of such appraiser so failing, refusing or being unable to act. In the third event that all appraisers cannot agree upon such value ten (10) days as aforesaid, each appraiser shall submit his appraisal of such value to the other two appraisers in writing, and the decision of the appraiser most different from such value shall be determined by calculating the average of the other two numerically closest (2) shall be discarded and such average shall be binding on Lessor and Lessee; providedor, that if the highest appraisal and values are equidistant, all three) values determined by the lowest appraisal are equidistant from the third appraisalthree appraisers. The costs, the third other than counsel fees, of such appraisal shall be binding on Lessor borne equally by the parties. Upon determining such value, the appraisers shall promptly notify Landlord and LesseeTenant in writing of such determination. If any party shall fail to appear at the hearings appointed by the appraisers, the appraisers may act in the absence of such party. The fees and expenses determination of the appraiser appointed by Lessee board of appraisers (or the single additional Qualified Appraiser, as appropriate) made in accordance with the foregoing provisions shall be paid by Lessee; final and binding upon the fees parties, such determination may be entered as an award in arbitration in a court of competent jurisdiction, and expenses of the appraiser appointed by Lessor shall judgment thereon may be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessorentered.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and each applicable Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and each applicable Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by such Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on such Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and such Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and such Lessee. The fees and expenses of the appraiser appointed by such Lessee shall be paid by such Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between such Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the Properties a piece of Equipment or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedureprocedure but with respect to which no appraisal or valuation method is specified, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the LeaseProcedure, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser from a nationally recognized independent appraisal firm (with at least 15 years of experience appraising equipment similar to and used in the same industry as the Equipment) shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, provided that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of all of the appraiser appointed by Lessee appraisers shall be paid by the Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of any portion of the Properties Property (including without limitation for purposes of the Parcel Sale Requirements) or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section of the Lease, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other 35 41 two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.

Appraisal Procedure. For determining the Fair Market Sales Value of the one or more Properties or any other amount which may, pursuant to any provision of any Operative Agreement, be determined by an appraisal procedure, Lessor and Lessee shall use the following procedure (the "Appraisal Procedure"). Lessor and Lessee shall endeavor to reach a mutual agreement as to such amount for a period of ten (10) days from commencement of the Appraisal Procedure under the applicable section Section of the Leaseapplicable Operative Agreement, and if they cannot agree within ten (10) days, then two (2) qualified appraisers, one (1) chosen by Lessee and one (1) chosen by Lessor, shall mutually agree thereupon, but if either party shall fail to choose an appraiser within twenty (20) days after notice from the other party of the selection of its appraiser, then the appraisal by such appointed appraiser shall be binding on Lessee and Lessor. If the two (2) appraisers cannot agree within twenty (20) days after both shall have been appointed, then a third appraiser shall be selected by the two (2) appraisers or, failing agreement as to such third appraiser within thirty (30) days after both shall have been appointed, by the American Arbitration Association. The decisions of the three (3) appraisers shall be given within twenty (20) days of the appointment of the third appraiser and the decision of the appraiser most different from the average of the other two (2) shall be discarded and such average shall be binding on Lessor and Lessee; provided, that if the highest appraisal and the lowest appraisal are equidistant from the third appraisal, the third appraisal shall be binding on Lessor and Lessee. The fees and expenses of the appraiser appointed by Lessee shall be paid by Lessee; the fees and expenses of the appraiser appointed by Lessor shall be paid by Lessor (such fees and expenses not being indemnified pursuant to Section 11 of the Participation Agreement); and the fees and expenses of the third appraiser shall be divided equally between Lessee and Lessor.