Appraisers If it becomes necessary to determine the Fair Market Value or Fair Market Rental of the Leased Property for any purpose of this Lease, the party required or permitted to give Notice of such required determination shall include in the Notice the name of a Person selected to act as appraiser on its behalf. Within ten (10) days after Notice, Lessor (or Lessee, as the case may be) shall by Notice to Lessee (or Lessor, as the case may be) appoint a second Person as appraiser on its behalf. The appraisers thus appointed, each of whom must be a member of the American Institute of Real Estate Appraisers (or any successor organization thereto) with at least five (5) years’ experience in the State appraising property similar to the Leased Property, shall, within forty-five (45) days after the date of the Notice appointing the first appraiser, proceed to appraise the Leased Property to determine the Fair Market Value or Fair Market Rental thereof as of the relevant date (giving effect to the impact, if any, of inflation from the date of their decision to the relevant date); provided, however, that if only one appraiser shall have been so appointed, then the determination of such appraiser shall be final and binding upon the parties. To the extent consistent with sound appraisal practice as then existing at the time of any such appraisal, such appraisal shall be made on a basis consistent with the basis on which the Leased Property was appraised for purposes of determining its Fair Market Value at the time the Leased Property was acquired by Lessor. If two (2) appraisers are appointed and if the difference between the amounts so determined does not exceed five percent (5%) of the lesser of such amounts, then the Fair Market Value or Fair Market Rental shall be an amount equal to fifty percent (50%) of the sum of the amounts so determined. If the difference between the amounts so determined exceeds five percent (5%) of the lesser of such amounts, then such two appraisers shall have twenty (20) days to appoint a third appraiser. If no such appraiser shall have been appointed within such twenty (20) days or within ninety (90) days of the original request for a determination of Fair Market Value or Fair Market Rental, whichever is earlier, either Lessor or Lessee may apply to any court having jurisdiction to have such appointment made by such court. Any appraiser appointed by the original appraisers or by such court shall be instructed to determine the Fair Market Value or Fair Market Rental within forty-five (45) days after appointment of such appraiser. The determination of the appraiser which differs most in the terms of dollar amount from the determinations of the other two appraisers shall be excluded, and fifty percent (50%) of the sum of the remaining two determinations shall be final and binding upon Lessor and Lessee as the Fair Market Value or Fair Market Rental of the Leased Property, as the case may be. This provision for determining by appraisal shall be specifically enforceable to the extent such remedy is available under applicable law, and any determination hereunder shall be final and binding upon the parties except as otherwise provided by applicable law. Lessor and Lessee shall each pay the fees and expenses of the appraiser appointed by it and each shall pay one-half of the fees and expenses of the third appraiser and one-half of all other costs and expenses incurred in connection with each appraisal.
Cooperation with Financing Prior to the Closing, Sellers shall use reasonable best efforts and shall cause the Companies to use their reasonable best efforts to cooperate with Acquiror, in connection with the arrangement of the Debt Financing or any part thereof as may be reasonably requested by Acquiror (provided that such requested cooperation does not unreasonably interfere in any material respect with the ongoing operations of any of Sellers or the Companies), including using reasonable best efforts to (i) participate at reasonable times in a reasonable number of meetings with Acquiror’s financing sources (including due diligence sessions and customary “roadshow”, ratings agency and lender presentations), (ii) furnish Acquiror and its financing sources with additional financial and other pertinent information (including pro forma information for historical periods) regarding the Companies as shall exist and be reasonably requested by Acquiror, (iii) reasonably assist Acquiror and its financing sources in the preparation of materials for rating agency presentations, (iv) reasonably cooperate with the marketing efforts of Acquiror and its financing sources for any portion of the Debt Financing (including with respect to Acquiror’s preparation of any bank information memorandum (including public-side versions thereof), offering memorandum, private placement memorandum, prospectuses or similar documents, including delivery of customary representation letters), (v) assist Acquiror in obtaining surveys and title insurance, (vi) reasonably cooperate with and provide reasonable access to prospective lenders, arrangers, and their respective advisors, in each case that are subject to customary confidentiality obligations, in performing their due diligence, (vii) enter into customary purchase agreements with underwriters or arrangers that will be effective at or after the Closing, (viii) provide, no later than five (5) Business Days prior to the anticipated Closing Date, documentation and other information about the Companies as is required by both the Debt Commitment Letter and applicable “know your customer” and anti-money laundering rules and regulations (including the USA PATRIOT Act) to the extent reasonably requested at least ten (10) Business Days prior to the anticipated Closing Date and (ix) executing or delivering, as applicable, on the Closing Date and effective at or after the Closing only, any credit agreement, guarantee, pledge and security documents, landlord waivers, control agreements, lock box arrangements, other definitive financing documents or other requested certificates, existing appraisals, existing surveys, or existing title insurance policies, in each case to the extent reasonably requested, in connection with the Debt Financing, including documents relating to the release of Liens or Indebtedness and otherwise facilitating the pledging of any collateral; provided, in each case in clauses (i) through (ix), that (A) none of Sellers or any of their respective Subsidiaries (other than the Companies) shall be required to incur any liability in connection with the Debt Financing and none of the Companies shall be required to incur any liability in connection with the Debt Financing prior to the Closing, (B) neither (i) the boards of directors, boards of managers or similar governing bodies of Sellers, (ii) the directors, officers or managers of their respective Subsidiaries (other than the Companies) nor (iii) the pre-Closing directors, officers or managers of the Companies shall be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the Debt Financing is obtained, other than with respect to such actions that are both conditioned on the Closing and reasonably necessary to permit the completion of the Debt Financing, (C) none of Sellers nor any of their respective Subsidiaries (other than the Companies) shall be required to execute any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Debt Financing and none of the Companies shall be required to execute any definitive financing documents prior to the Closing, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Debt Financing and (D) nothing in this Section 5.6 shall require cooperation to the extent that it would (i) cause any condition to Closing set forth in Article VIII to not be satisfied or otherwise cause any breach of this Agreement or (ii) require Sellers or any of their respective Subsidiaries to take any action that would reasonably be expected to conflict with or violate such Person’s organizational documents or any Law, or result in the contravention of, or result in a violation or breach of, or default under, any Contract. From and after the commencement of the Marketing Period through and including the Closing Date, Sellers shall use reasonable best efforts to periodically update any Required Information provided to Acquiror if failure to do so would result in the Marketing Period to cease to be deemed to have commenced. Acquiror shall indemnify, defend and hold harmless Sellers and their respective Subsidiaries, and their respective directors, officers, employees and Representatives, from and against any liability or obligation to providers of the Debt Financing in connection with the Debt Financing and any information provided in connection therewith other than historical financial information provided by the Sellers, and the Acquiror Guaranty shall guaranty the obligations of Acquiror pursuant to this Section 5.6, in each case, other than to the extent any of the foregoing arises from the willful misconduct of, or material breach of this Agreement by, (x) any Seller or (y) any of their respective Affiliates or any of their respective directors, officers, employees and Representatives (in each case, only to the extent the party seeking indemnity under this sentence has committed such willful misconduct or material breach). Further, Sellers, on behalf of themselves and their Affiliates, hereby consent to the reasonable and customary use of their and their Affiliates’ trademarks, service marks or logos in connection with the Debt Financing; provided that such trademarks, service marks or logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage Sellers or any of their Affiliates or the reputation or goodwill of Sellers or any of their Affiliates or any of their respective Intellectual Property rights and provided that in each instance the use of their and their Affiliates’ trademarks, service marks or logos is first submitted to and approved in writing by Sellers (which approval shall not be unreasonably withheld, conditioned or delayed) and any Action or Losses related to such use shall be the responsibility of Acquiror. Acquiror shall promptly upon Sellers’ request reimburse Sellers and their respective Subsidiaries for all reasonable and documented or invoiced out-of-pocket costs and expenses (including reasonable fees and disbursements of counsel) incurred by Sellers or their respective Subsidiaries in connection with such cooperation pursuant to this Section 5.6 and, to the extent Acquiror does not reimburse Sellers or the applicable Subsidiary for any such cost or expense on or prior to the date of the Closing Date Statement, the Companies shall be deemed to have a current asset on the Closing Date Statement in the amount of such unreimbursed costs and expenses. Notwithstanding anything to the contrary in this Agreement, the condition set forth in Section 8.2(b), as it applies to Sellers’ obligations under this Section 5.6, shall be deemed satisfied unless Sellers have knowingly and willfully materially breached their obligations under this Section 5.6. If Sellers at any point believe that they have delivered the Required Information in accordance with this Section 5.6, they may deliver to Acquiror a written notice to such effect, in which case Sellers shall be deemed to have delivered the Required Information unless Acquiror shall provide to Sellers within two (2) Business Days a written notice describing in reasonable detail what information that constitutes Required Information Sellers have not delivered. In furtherance of the foregoing, Acquiror shall use commercially reasonable efforts to cause the Lenders to identify in writing and in reasonable detail all financial data expected to constitute Required Information (other than the financial statements described herein) on or before October 3, 2012 and shall provide Sellers such information as soon as reasonably practicable after receipt thereof.
