Common use of Fair Market Rental Clause in Contracts

Fair Market Rental. If it becomes necessary to determine the Fair Market Rental of the Property for any purpose under this Lease, Landlord and Tenant shall first attempt to agree on such Fair Market Rental. If Landlord and Tenant are unable to so agree within a reasonable period of time not to exceed thirty (30) days, then Landlord and Tenant shall have twenty (20) days to attempt to agree upon a single Appraiser to make such determination. If the parties so agree upon a single Appraiser, such Appraiser shall, within forty-five (45) days of being engaged, determine the Fair Market Rental as of the relevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date), and such determination shall be final and binding upon the parties. If Landlord and Tenant are unable to agree upon a single Appraiser within such twenty (20) days, then each party shall have ten (10) days in which to provide the other with the name of a person selected to act as Appraiser on its behalf. Each such Appraiser shall, within forty-five (45) days of being engaged, determine the Fair Market Rental as of the relevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date). If the difference between the amounts so determined does not exceed ten percent (10%) of the lesser of such amounts, then the Fair Market Rental shall be the average of the amounts so determined, and such average shall be final and binding upon the parties. If the difference between the amounts so determined exceeds ten percent (10%) of the lesser of such amounts, then such two Appraisers shall have twenty (20) days to appoint a third Appraiser. If the first Appraisers fail to appoint a third Appraiser within such twenty (20) days, either Landlord or Tenant may apply to any court having jurisdiction to have such appointment made by such court. Such third Appraiser, shall, within forty-five (45) days of being selected or appointed, determine the Fair Market Rental as of the relevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date). The determination of the Appraiser which differs most in terms of dollar amount from the determinations of the other two Appraisers shall be excluded, and the Fair Market Rental shall be the average of the amounts of the two remaining determinations, and such average shall be final and binding upon the parties. If either party fails to select an Appraiser within such ten (10) days or a selected Appraiser fails to make its determination within such forty-five (45) days, the Appraiser selected by the other party or the Appraiser that makes its determination with such forty-five (45) days, as applicable, shall alone determine the Fair Market Rental as of the relevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date) and such determination shall be final and binding upon the parties. Landlord and Tenant shall each pay the fees and expenses of the Appraiser appointed by it and each shall pay one-half ( 1⁄2) of the fees and expenses of the third Appraiser. For purposes of determining the Fair Market Rental, the Property shall be valued at its highest and best use which shall be presumed to be as a fully-permitted facility operated in accordance with the provisions of this Lease. In addition, the following specific matters shall be factored in or out, as appropriate, in determining the Fair Market Rental:

Fair Market Rental. If it becomes necessary to determine the Whenever a determination of Fair Market Rental is required pursuant to Section 1.04 of the Property for any purpose under this Lease, Landlord such Fair Market Rental shall be determined in accordance with the following procedures: Lessor and Tenant Lessee shall first attempt endeavor to agree on upon such Fair Market Rental within thirty (30) days after Lessee notifies Lessor of its intent to extend the Term (the “Initial Date”). Upon reaching any such agreement, the parties shall execute a written agreement setting forth the amount of such Fair Market Rental. If Landlord and Tenant are unable to so agree the parties shall not have signed such agreement within a reasonable period of time not to exceed thirty (30) daysdays after the Initial Date, then Landlord Lessor and Tenant Lessee shall have twenty (20) days to attempt to agree upon each appoint a single Appraiser to make such determinationlicensed real estate appraiser who shall be familiar with the rental market for comparable buildings in the applicable market area. Each appraiser so appointed shall determine Fair Market Rental. If the parties so agree upon a single Appraiser, higher of such Appraiser shall, within forty-five (45) days of being engaged, determine the Fair Market Rental as appraisals is equal to 110% or less of the relevant date (giving effect to the impactlower, if any, of inflation from the date of its decision to the relevant date), and such determination shall be final and binding upon the parties. If Landlord and Tenant are unable to agree upon a single Appraiser within such twenty (20) days, then each party shall have ten (10) days in which to provide the other with the name of a person selected to act as Appraiser on its behalf. Each such Appraiser shall, within forty-five (45) days of being engaged, determine the Fair Market Rental as of the relevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date). If the difference between the amounts so determined does not exceed ten percent (10%) of the lesser of such amounts, then the Fair Market Rental shall be the simple average of the amounts so determined, and such average shall be final and binding upon the partiestwo appraisals. If the difference deviation between such appraisals is greater, the amounts appraisers so determined exceeds ten percent (10%) of the lesser of such amounts, then such two Appraisers appointed shall have twenty (20) days to jointly appoint a third Appraiser. If independent appraiser (having professional qualifications similar to those of the first Appraisers fail to appoint a third Appraiser within such twenty (20) daysinitial appraisers), either Landlord or Tenant may apply to any court having jurisdiction to have such appointment made by such court. Such third Appraiser, shall, within forty-five (45) days of being selected or appointed, who shall determine the Fair Market Rental as by reviewing the conclusions of the relevant date (giving effect initial appraisals and determining which he or she believes to be the impact, if any, more reasonable. Lessee may elect to reject the conclusion of inflation from such third appraiser and shall have the date of option to withdraw its decision to the relevant date). The determination exercise of the Appraiser which differs most in terms of dollar amount from option to extend the determinations of the other two Appraisers shall be excluded, and the Fair Market Rental shall be the average of the amounts of the two remaining determinations, and such average shall be final and binding upon the parties. If either party fails to select an Appraiser Term within such ten (10) business days or a selected Appraiser fails after being notified of such determination. If Lessee makes such election to make withdraw its determination within such forty-five (45) daysexercise of the option to extend, the Appraiser selected by Lease shall terminate after the other party or the Appraiser that makes its determination with such forty-five (45) days, as applicable, shall alone determine the Fair Market Rental as expiration of the relevant date (giving effect to then existing term of the impact, if any, of inflation from the date of its decision to the relevant date) Lease. Lessor and such determination shall be final and binding upon the parties. Landlord and Tenant Lessee shall each pay the fees and expenses fee of the Appraiser appointed by appraiser it appoints and each shall pay one-half ( 1⁄2) of the fees and expenses fee of the third Appraiser. For purposes of determining the Fair Market Rental, the Property appraiser shall be valued at its highest and best use which shared equally by the parties. All appraisers selected or appointed pursuant to this Section 9.26 shall (A) be presumed independent qualified MAI appraisers, (B) have no right, power or authority to be as a fully-permitted facility operated in accordance with alter or modify the provisions of this Lease, and (C) be registered in the state where the Land is located if said state provides for or requires such registration. In addition[Signatures of Lessor and Lessee Follow on Next Pages] IN WITNESS WHEREOF, the following specific matters shall parties hereto have caused this Lease to be factored executed as of the date first above written. LESSOR: NL VENTURES VII XXXXXXX, L.L.C., a Delaware limited liability company By: /s/ Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx Title: President Witness: /s/ Xxxxxx Xxxxxxxx Name: Xxxxxx Xxxxxxxx Witness: /s/ Xxxxx Xxxxx Name: Xxxxx Xxxxx Xxxxxxx Lease Agreement LESSEE: GORDMANS, INC., a Delaware corporation By: /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: VP & CFO Witness: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Witness: /s/ Xxxxxxxx XxXxxxx Name: Xxxxxxxx XxXxxxx Xxxxxxx Lease Agreement EXHIBIT A LEGAL DESCRIPTION OF LAND THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF XXXXXXX, STATE OF NEBRASKA AND IS DESCRIBED AS FOLLOWS: Parcel 1: That part of the South Half of the South Half of the Southwest Quarter (S 1/2 S 1/2 SW 1/4) of Section 34, Township 15 North, Range 12 East of the 6th P.M., in or outthe City of Omaha, in Xxxxxxx County, Nebraska, lying between the North line of “F” Street on the South and the South line of the Union Pacific Railroad Company right-of-way line on the North; EXCEPT the East 2,100 feet thereof; and EXCEPT the West 50 feet thereof taken for 00xx Xxxxxx; and EXCEPT that part thereof particularly described as follows: Beginning at the point of intersection of the East right-of-way line of 00xx Xxxxxx and the North right-of-way line of “F” Street; thence Northerly, along the East right-of-way line of 96th Street, for a distance of 20.00 feet; thence Southeasterly, for a distance of 28.28 feet, to a point on the North right-of-way line of “F” Street; thence Westerly, along the North right-of-way line of “F” Street, for a distance of 20.00 feet to the point of beginning. Parcel 2: The West 340.33 feet of the East 2,100.00 feet to the South Half of the South Half of the Southwest Quarter (S 1/2 S 1/2 SW 1/4) of Section 34, Township 15 North, Range 12 East of the 6th P.M., in the City of Omaha, in Xxxxxxx County, Nebraska, lying between the North line of “F” Street on the South and the South line of Union Pacific Railroad Company right-of-way on the North. Parcel 3: The West 210.00 feet of the East 1,759.67 feet if the South Half of the South Half of the Southwest Quarter (S 1/2 S 1/2 SW 1/4) of Section 34, Township 15 North, Range 12 East of the 6th P.M., in the City of Omaha, in Xxxxxxx County, Nebraska, lying between the North line of “F” Street on the South and the South line of the Union Pacific Railroad Company right-of-way on the North (known as lane cutoff), more particularly described as follows: Beginning at a point 50 feet North and 1,549.67 feet West of the Southeast corner of the Southwest Quarter of said Section 34, which point of beginning is also due South of the West line of an existing warehouse; thence West 210.0 feet; thence North 443.0 feet, to the South line of the Union Pacific Railroad Company right-of-way, thence East 210.0 feet; thence South 443.0 feet (along the outside wall of said existing warehouse), to the Point of Beginning. Parcel 4: The West 500 feet of the East 1,600 feet of the South Half of the South Half of the Southwest Quarter (S 1/2 S 1/2 SW 1/4) of Section 34, Township 15 North, Range 12 East of the 6th P.M., in the City of Omaha, in Xxxxxxx County Nebraska, lying between the North line of “F” Street on the South and the South line of the Union Pacific Railroad Company right-of-way on the North (known as lane cutoff), EXCEPT the West 50 feet 4 inches thereof, being sometimes more particularly described as follows: Commencing at the Southeast corner of said South Half of the South Half of the Southwest Quarter; thence Northerly, on the East line of said South Half, 50.00 feet, to the North line of “F” Street; thence Westerly, on a line 50 feet North of and parallel to the South line of said South Half (the North line of said “F” Street), 1,100 feet, to the Point of Beginning; thence continuing Westerly, on a line 50.00 feet North of and parallel to the South line of Said South Half (the North line of said “F” Street), 449.67 feet; thence Northerly, on a line perpendicular to the last described course, 443.00 feet, to the South line of the Union Pacific Railroad right-of-way; thence Easterly, on the South line of said Union Pacific Railroad right-of-way, 449.67 feet, thence Southerly, on a line perpendicular to the South line of said Union Pacific Railroad right-of-way, 443,65 feet to the Point of Beginning. Parcels 1 through 4 are alternatively described by Metes and Bounds as follows: A parcel of land situate in the South Half of the South Half of the Southwest Quarter of Section 34, Township 15 North, Range 12 East of the 6th P.M. Xxxxxxx County, Nebraska described as follows: Commencing at the Southeast Corner of said South Half of the South Half of the Southwest Quarter; thence northerly, on the East line of said South Half, 50.00 feet, to the North Line of “F” Street, as appropriatenow located; thence along said northerly right-of-way line, in determining S90°00’00”W, 1100.00 feet to the Fair Market Rental:Point of Beginning; thence continuing along said North line, S90°00’00”W, (assumed bearing), 1480.31 feet to a point on the easterly right-of-way line of 96th Street, as now located; thence along said right-of-way line, N44°51’01 “W, 28.21 feet; thence continuing along said right-of-way line, N00°17’58”E, 419.43 feet to a point on the southerly right-of-way line of the Union Pacific Railroad; thence along said southerly right-of-way line, N89°46’45”E, 1498.02 feet; thence S00°00’00”E, 443.65 feet to the Point of Beginning. Said Parcels, 1 through 4, contain a total area of 15.199 acres. Address: 0000 “X” Xxxxxx, Xxxxx, Xxxxxxxx 00000 Tax Parcel Identification No.: 0000-0000-00 Xxxxxxx (NE) Exhibit A Legal Description EXHIBIT B PERMITTED EXCEPTIONS

Fair Market Rental. If it becomes necessary to determine the Whenever a determination of Fair Market Rental is required pursuant to Section 1.04 of the Property for any purpose under this Lease, Landlord such Fair Market Rental shall be determined in accordance with the following procedures: Lessor and Tenant Lessee shall first attempt endeavor to agree on upon such Fair Market Rental within thirty (30) days after Lessee notifies Lessor of its intent to extend the Term (the “Initial Date”). Upon reaching any such agreement, the parties shall execute a written agreement setting forth the amount of such Fair Market Rental. If Landlord and Tenant are unable to so agree the parties shall not have signed such agreement within a reasonable period of time not to exceed thirty (30) daysdays after the Initial Date, then Landlord Lessor and Tenant Lessee shall have twenty (20) days to attempt to agree upon each appoint a single Appraiser to make such determinationlicensed real estate appraiser who shall be familiar with the rental market for comparable buildings in the applicable market area. Each appraiser so appointed shall determine Fair Market Rental. If the parties so agree upon a single Appraiser, higher of such Appraiser shall, within forty-five (45) days of being engaged, determine the Fair Market Rental as appraisals is equal to 110% or less of the relevant date (giving effect to the impactlower, if any, of inflation from the date of its decision to the relevant date), and such determination shall be final and binding upon the parties. If Landlord and Tenant are unable to agree upon a single Appraiser within such twenty (20) days, then each party shall have ten (10) days in which to provide the other with the name of a person selected to act as Appraiser on its behalf. Each such Appraiser shall, within forty-five (45) days of being engaged, determine the Fair Market Rental as of the relevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date). If the difference between the amounts so determined does not exceed ten percent (10%) of the lesser of such amounts, then the Fair Market Rental shall be the simple average of the amounts so determined, and such average shall be final and binding upon the partiestwo appraisals. If the difference deviation between such appraisals is greater, the amounts appraisers so determined exceeds ten percent (10%) of the lesser of such amounts, then such two Appraisers appointed shall have twenty (20) days to jointly appoint a third Appraiser. If independent appraiser (having professional qualifications similar to those of the first Appraisers fail to appoint a third Appraiser within such twenty (20) daysinitial appraisers), either Landlord or Tenant may apply to any court having jurisdiction to have such appointment made by such court. Such third Appraiser, shall, within forty-five (45) days of being selected or appointed, who shall determine the Fair Market Rental as by reviewing the conclusions of the relevant date (giving effect initial appraisals and determining which he or she believes to be the impact, if any, more reasonable. Lessee may elect to reject the conclusion of inflation from such third appraiser and shall have the date of option to withdraw its decision to the relevant date). The determination exercise of the Appraiser which differs most in terms of dollar amount from option to extend the determinations of the other two Appraisers shall be excluded, and the Fair Market Rental shall be the average of the amounts of the two remaining determinations, and such average shall be final and binding upon the parties. If either party fails to select an Appraiser Term within such ten (10) business days or a selected Appraiser fails after being notified of such determination. If Lessee makes such election to make withdraw its determination within such forty-five (45) daysexercise of the option to extend, the Appraiser selected by Lease shall terminate after the other party or the Appraiser that makes its determination with such forty-five (45) days, as applicable, shall alone determine the Fair Market Rental as expiration of the relevant date (giving effect to then existing term of the impact, if any, of inflation from the date of its decision to the relevant date) Lease. Lessor and such determination shall be final and binding upon the parties. Landlord and Tenant Lessee shall each pay the fees and expenses fee of the Appraiser appointed by appraiser it appoints and each shall pay one-half ( 1⁄2) of the fees and expenses fee of the third Appraiser. For purposes of determining the Fair Market Rental, the Property appraiser shall be valued at its highest and best use which shared equally by the parties. All appraisers selected or appointed pursuant to this Section 9.26 shall (A) be presumed independent qualified MAI appraisers, (B) have no right, power or authority to be as a fully-permitted facility operated in accordance with alter or modify the provisions of this Lease, and (C) be registered in the state where the Land is located if said state provides for or requires such registration. In addition[Signatures of Lessor and Lessee Follow on Next Pages] IN WITNESS WHEREOF, the following specific matters parties hereto have caused this Lease to be executed as of the date first above written. LESSOR: NL VENTURES VII XXXXXXX, L.L.C., a Delaware limited liability company By: /s/ Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx Title: President Witness: Name: Witness: Name: Xxxxxxx Lease Agreement LESSEE: GORDMANS, INC., a Delaware corporation By: Name: Title: Witness: Name: Witness: Name: Xxxxxxx Lease Agreement EXHIBIT A LEGAL DESCRIPTION OF LAND Xxxxxxx Lease Agreement_3 EXHIBIT B PERMITTED EXCEPTIONS Xxxxxxx Lease Agreement_3 EXHIBIT C BASIC RENT SCHEDULE The annual Basic Rent for the Interim Term (as prorated) and the first Lease Year of the Term shall be factored in $958,375. The Basic Rent shall increase annually by three percent (3.0%) as shown below: Lease Year Dates Annual Rent Monthly Rent Interim Term Date of closing through November 30, 2008 $ 958,375 prorated 1 December 1, 2008 through November 30, 2009 $ 958,375 $ 79,865 2 December 1, 2009 through November 30, 2010 $ 987,126 $ 82,261 3 December 1, 2010 through November 30, 2011 $ 1,016,740 $ 84,728 4 December 1, 2011 through November 30, 2012 $ 1,047,242 $ 87,270 5 December 1, 2012 through November 30, 2013 $ 1,078,660 $ 89,888 6 December 1, 2013 through November 30, 2014 $ 1,111,019 $ 92,585 7 December 1, 2014 through November 30, 2015 $ 1,144,350 $ 95,362 8 December 1, 2015 through November 30, 2016 $ 1,178,680 $ 98,223 9 December 1, 2016 through November 30, 2017 $ 1,214,041 $ 101,170 10 December 1, 2017 through November 30, 2018 $ 1,250,462 $ 104,205 11 December 1, 2018 through November 30, 2019 $ 1,287,976 $ 107,331 12 December 1, 2019 through November 30, 2020 $ 1,326,615 $ 110,551 13 December 1, 2020 through November 30, 2021 $ 1,366,414 $ 113,868 14 December 1, 2021 through November 30, 2022 $ 1,407,406 $ 117,284 15 December 1, 2022 through November 30, 2023 $ 1,449,628 $ 120,802 16 December 1, 2023 through November 30, 2024 $ 1,493,117 $ 124,426 17 December 1, 2024 through November 30, 2025 $ 1,537,911 $ 128,159 18 December 1, 2025 through November 30, 2026 $ 1,584,048 $ 132,004 19 December 1, 2026 through November 30, 2027 $ 1,631,569 $ 135,964 20 December 1, 2027 through November 30, 2028 $ 1,680,516 $ 140,043 Total Rent Lease Years 1-20: $ 25,751,895 If Lessee exercises its option(s) to extend the Term, Basic Rent shall be increased or out, as appropriate, in determining the decreased to Fair Market Rental:Rental as more particularly set forth in Section 9.26 hereof. Xxxxxxx Lease Agreement_3 EXHIBIT D SEVERABLE PROPERTY Severable Property shall include all apparatus, personal property, trade fixtures, inventory, equipment, machinery, fittings, furniture, furnishings, chattel, materials and supplies located on and used in, or related to Lessee’s business, including, but not limited to, mainframe computers, kitchen equipment and telephone and similar systems and articles of personal property of every kind and nature whatsoever, and any additions, replacements, accessions and substitutions thereto or therefor, and all proceeds of all of the foregoing, including without limitation, the equipment described in Schedule D-1 attached hereto. Severable Property shall not include the Improvements. Xxxxxxx Lease Agreement_3 SCHEDULE D-1 Xxxxxxx Lease Agreement_3 EXHIBIT E Xxxxxxx Lease Agreement_3 COLLATERAL ACCESS AGREEMENT THIS COLLATERAL ACCESS AGREEMENT (this “Agreement”), executed and delivered as of this day of , 200 , by and among NL VENTURES VII XXXXXXX, L.L.C., a Delaware limited liability company (“Landlord”), GORDMANS, INC., a Delaware corporation (“Company”), and , a (“Lender”).

Fair Market Rental. If it becomes necessary Fair Market Rental shall be the actual rental rates for comparable space of comparable financial institutions in other comparable areas of Tracy, California, adjusting to determine account for, with respect to such rental, any difference between the lease and the lease(s) of comparable space, including without limitation, net versus gross lease provisions. Fair Market Rental shall be determined pursuant to the foregoing factors and shall mean the Fair Market Rental in effect as of the Property for any purpose under this Leasebeginning of the Option Period. Not less than sixty (60) days before the beginning of each Option Period, Landlord and shall notify Tenant shall first attempt to agree on such of Landlord's determination of the Fair Market RentalRental for the Premises for the coming Option Period (the Fair Market Rental Notice). If Landlord and Tenant are unable to so agree within a reasonable period disputes the amount of time not to exceed thirty (30) days, then Landlord and Tenant shall have twenty (20) days to attempt to agree upon a single Appraiser to make such determination. If the parties so agree upon a single Appraiser, such Appraiser shall, within forty-five (45) days of being engaged, determine the Fair Market Rental as determined by Landlord, Tenant may require that Landlord submit the dispute to arbitration. The judgment rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between parties. The arbitration shall be conducted in San Francisco, California, in accordance with the then prevailing rules of the relevant date (giving effect American Arbitration Association or its successors for arbitration of commercial disputes, except to the impactextent that the procedures mandated by such rules shall be modified as follows: Tenant shall make demand for arbitration in writing within twenty (20) business days after receipt of the Fair Market Rental Notice, specifying therein the name and address of the person to act as the arbitrator on Tenant's behalf. The arbitrator shall be qualified as a real estate appraiser familiar with the fair market rental of comparable space in comparable areas in Tracy, California. Failure on the part of Tenant to make a timely and proper demand for such arbitration shall constitute a waiver of the right thereto, and rental for the option period shall be the amount stated in the Fair Market Rental Notice. Within ten (10) business days after the service of the demand for arbitration, Landlord shall give notice to Tenant specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualified. If Landlord fails to notify Tenant of the appointment of its arbitrator within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. If two arbitrators are chosen pursuant to the preceding paragraph, the arbitrators so chosen shall meet within ten (10) business days after the second arbitrator has been appointed and, if anywithin twenty (20) business days after such meeting the two arbitrators are unable to agree promptly upon a determination of Fair Market Rental, they - themselves - shall appoint a third arbitrator who shall be a competent and impartial person with qualifications similar to those required of inflation from the date first two arbitrators. If the two arbitrators are unable to agree upon such appointment within five (5) business days after the expiration of its decision such twenty (20) day period, the third arbitrator shall be selected by the parties themselves, if they can agree thereon within a further period of ten (10) business days. If the parties cannot so agree, then either party, on behalf of both, may request the then Chief Judge of the United States District Court having jurisdiction over the City of San Francisco, California, to appoint a third arbitrator and the other party shall not raise any question as to the relevant date)judge's full power and jurisdiction to entertain the application for and make the appointment. Where the issue cannot be resolved by agreement between the two arbitrators selected by Landlord and Tenant or settled between the parties during the course of arbitration, the issue shall be resolved by the three arbitrators as follows: The arbitrator selected by each of the parties shall state in writing his determination of the Fair Market Rental supported by the reasons therefore with counterpart copies to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third arbitrator shall be to select which of the two proposed resolutions most closely approximates his determination of Fair Market Rental. The third arbitrator shall have no right to propose -------------------------------------------------------------------------------- 5 a middle ground or any modification of either of the two proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute the decision of the arbitrators and such determination shall be final and binding upon the parties. If Landlord and Tenant are any arbitrator fails, refuses, or is unable to agree upon a single Appraiser act, his successor shall be appointed by him, but in the case of the third arbitrator, his successor shall be appointed in the same manner as provided for the appointment of the third arbitrator. The arbitrators shall attempt to decide the issue within such twenty (20) days, then each party shall have ten (10) business days after the appointment of the third arbitrator. Any decision in which to provide the other with the name of a person selected to act as Appraiser on its behalf. Each such Appraiser shall, within forty-five (45) days of being engaged, determine the Fair Market Rental as of the relevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date). If the difference between the amounts so determined does not exceed ten percent (10%) of the lesser of such amounts, then the Fair Market Rental arbitrator appointed by Landlord and arbitrator appointed by Tenant concur shall be the average of the amounts so determined, binding and such average shall be final and binding conclusive upon the parties. If Each party shall pay the difference between the amounts so determined exceeds ten percent (10%) of the lesser of such amounts, then such two Appraisers shall have twenty (20) days to appoint a third Appraiser. If the first Appraisers fail to appoint a third Appraiser within such twenty (20) days, either Landlord or Tenant may apply to any court having jurisdiction to have such appointment made by such court. Such third Appraiser, shall, within forty-five (45) days of being selected or appointed, determine the Fair Market Rental as of the relevant date (giving effect to the impact, if any, of inflation from the date fee and expense of its decision to the relevant date). The determination of the Appraiser which differs most in terms of dollar amount from the determinations of the other two Appraisers respective arbitrator and both shall be excluded, and the Fair Market Rental shall be the average of the amounts of the two remaining determinations, and such average shall be final and binding upon the parties. If either party fails to select an Appraiser within such ten (10) days or a selected Appraiser fails to make its determination within such forty-five (45) days, the Appraiser selected by the other party or the Appraiser that makes its determination with such forty-five (45) days, as applicable, shall alone determine the Fair Market Rental as of the relevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date) and such determination shall be final and binding upon the parties. Landlord and Tenant shall each pay the fees and expenses of the Appraiser appointed by it and each shall pay one-half ( 1⁄2) of share the fees and expenses of the third Appraiserarbitrator, if any. For purposes The attorneys' fees and expenses of determining counsel for the respective parties and of witnesses shall be paid by the respective party engaging such counsel or calling such witnesses. The arbitrators shall have the right to consult experts and competent authorities for factual information or evidence pertaining to a determination of Fair Market Rental, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The arbitrators shall render their decision in writing with counter-part copies to each party. The arbitrators shall have no power to modify the provisions of the lease. If the new rental term begins prior to determination of Fair Market Rental, then the minimum monthly rental initially due during the new rental term shall be the amount stated in the Fair Market Rental Notice. Within fifteen (15) days after determination of the Fair Market Rental, the Property appropriate party shall be valued at its highest pay the other party the difference between the amount actually paid and best use which shall be presumed the amount that should have been paid pursuant to be as a fully-permitted facility operated in accordance with the provisions of this LeaseParagraph 2. In additionno case shall the Fixed Minimum Monthly Rent be less than the minimum monthly rent paid immediately preceding the option period year, the following specific matters shall be factored in or out, as appropriate, in determining the Fair Market Rental:plus two (2%) percent.