Determination of FMV Clause Samples

The "Determination of FMV" clause defines the process for establishing the fair market value (FMV) of an asset, property, or interest referenced in the agreement. Typically, this clause outlines the methodology to be used—such as referencing independent appraisals, market comparables, or a mutually agreed formula—and may specify the appointment of a third-party valuator if the parties cannot agree. Its core practical function is to provide a clear, objective mechanism for valuing assets, thereby reducing disputes and ensuring transparency in transactions where FMV is a critical factor.
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Determination of FMV. For purposes of this Section 15, the FMV shall be determined by one (1) or more qualified commercial real estate brokers with at least five (5) years’ experience with the purchase and sale of real estate projects similar to the Property. Bluerock and ArchCo shall negotiate in good faith in an effort to agree on one (1) broker within ten (10) days after the expiration of the thirty (30) day period set forth above. In the event that the Members cannot agree on a broker within such ten (10) day period, each Member shall appoint its own broker and the two brokers shall then decide on a third broker. If the two (2) selected brokers fail to appoint a third (3rd) broker within ten (10) days following the expiration of the ten (10) day negotiation period, either Bluerock or ArchCo may petition a court of competent jurisdiction to appoint a third (3rd) broker, in the same manner as provided for the appointment of an arbitrator by the American Arbitration Association. If either Bluerock or ArchCo fails to suggest such a broker, or appoint such a broker, as the case may be, within the time period specified, the broker duly appointed by the other Member shall proceed to evaluate the proposed FMVs submitted by Bluerock and ArchCo (the “Evaluation”) as herein set forth, and the determination of such broker shall be conclusive on all the Members. The broker or three (3) brokers, as the case may be, shall promptly fix a time for the completion of the Evaluation, which shall not be later than thirty (30) days from the effective date of appointment of the last broker. The broker(s) shall determine the FMV by evaluating both Members proposed FMVs in light of the fair market value of the Property, such fair market value being the fairest price estimated in the terms of money that the Company could obtain if the Property was sold in the open market allowing a reasonable time to find a purchaser who purchases with knowledge of the business of the Property at the time of the delivery of the Put Election Notice or Call Election Notice. The broker(s) shall select the proposed FMV of the Member which each such broker deems most accurate in light of its analysis. In the event that three (3) brokers are involved in the Evaluation, the decision of any two (2) brokers with respect to either Member’s proposed FMV shall constitute selection of such FMV.
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Determination of FMV. Parent may from time to time engage an Appraiser to determine the FMV of the Exchangeable Shares and/or shares of Parent Common Stock. If no determination of FMV has been made for either the Exchangeable Shares or the Parent Common Stock within the six (6) month period prior to receipt by Parent of a Put Election Notice or receipt by MD ▇▇▇▇▇▇▇▇ of a Call Election Notice or Parent Exit Event Notice, Parent shall promptly engage the Appraiser to determine FMV of the Exchangeable Shares and/or Parent Common Stock. In connection with any engagement of the Appraiser under this Section 1.9, (i) Parent shall notify the Appraiser of the definition of FMV contained herein, (ii) Parent and the Company will provide information to the Appraiser (and, subject to customary confidentiality obligations, with a copy to MD ▇▇▇▇▇▇▇▇) as such Appraiser may reasonably request, and (iii) all costs and expenses of such Appraiser shall be paid by the Company. The Appraiser shall inform Parent and MD ▇▇▇▇▇▇▇▇ in writing of its determination of FMV, including a report describing the methodologies and underlying assumptions. Absent manifest error, the determination by the Appraiser shall be final and conclusive on Parent, the Company and MD ▇▇▇▇▇▇▇▇.
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Determination of FMV. Subject to the express terms of ---------------------- Sections 5.4(b), 5.5(a)(1), 13.2(a) and 13.2(b) regarding the determination of FMV or the selection of the Appraiser (which shall control over this Section), if a disagreement among the Partners has arisen as to the FMV of an asset or transaction for which the FMV is expressly required by the provisions of this Agreement and the Partners are unable to resolve such disagreement within thirty (30) days, any Partner may give notice to the other Partners of its election to have the FMV determined pursuant to this Section. Within thirty (30) days after such notice is given to the Partners, a Majority in Interest of the Partners may by notice to the other Partners designate an Appraiser (who must be independent from the Partnership, the Partners, and their respective Affiliates) to determine the FMV. If a Majority in Interest of the Partners fails to designate an Appraiser within such 30-day period, any Partner by written notice to the other Partners, may require the determination of FMV to be made by one of three Appraisers specified in such notice (each of which must be independent from the Partnership, the Partners, and their respective Affiliates). If more than one Partner gives such a notice, the first notice given to the other Partners shall have priority. A Majority in Interest of the Partners receiving such notice must, within twenty (20) days after receipt of such notice, choose one of the Appraisers listed in such notice to determine the FMV. If a Majority in Interest of the Partners receiving such notice fails to choose one of the Appraisers listed in such notice within said 20-day period, the Partner giving such notice may, by written notice to the other Partners, choose one of the Appraisers listed in such notice to determine the FMV. Once an Appraiser has been selected pursuant to the foregoing procedure, all Partners will promptly provide such Appraiser with all information each deems necessary or appropriate to determine such FMV and shall use best efforts to cooperate with the Appraiser so that it can determine such FMV as soon as practicable. The FMV determined by such Appraiser shall be binding upon the Partnership, the Partners and any Person owning or holding a Partnership Share or any right or interest in the Partnership. The Partnership will pay the costs of the appraisal and the Appraiser. This Section shall not apply to the determination of FMV under Section 13.2, and the respective ...
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Determination of FMV. If County and Tenant cannot agree on the FMV for the Helpline Space during the three month advance notice period set forth in Section 3.3 hereof, FMV shall be determined by using the rental rate prevailing for similarly-improved office space within a three-mile radius of the Premises for transactions consummated within the last 12 months immediately preceding the date of the cancellation notice under Section 3.3. If similarly-improved office space cannot be found within a three-mile radius of the Premises, then the search area shall be enlarged to a five-mile radius. In determining FMV for the Helpline Space, equitable adjustments to the surveyed rental values shall be made for the size and credit-worthiness of Tenant, the quality of the project, the nature of the Tenant’s improvements (if any) and any other lease terms having an impact on rental values. The fair rental survey shall be conducted by the County's appraiser and the Tenant’s appraiser, each of which shall be certified and licensed by the State of California. County shall bear the cost of County’s appraiser and Tenant shall bear the cost of Tenant’s appraiser. If County and Tenant cannot agree on the FMV for the Helpline Space within 45 days after the date of the cancellation notice pursuant to Section 3.3 hereof, each shall mutually select a third appraiser who shall also conduct a FMV appraisal. The third appraiser shall be required to have the same certification and licensing as the first two appraisers. The average of the two (2) appraisals nearest in value shall be the FMV for the Helpline Space and shall be final and binding on the parties. The cost of the third appraiser shall be borne equally by County and Tenant.
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Determination of FMV. In the event of a Buy-Out Notice under Sections 2.6.1, 2.8, 2.9, 8.1.4, 8.2.4 or 8.8, or an Insolvency Notice under Section 8.2.6 above, the Fair Market Value of the Holding Company and its subsidiaries as of the date the Buy-Out Notice is given shall be determined under Section 8.4 below.
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Determination of FMV. The FMV shall be fixed by the three (3) appraisers in accordance with the following procedures and Section 5.7.1 above. Within five (5) Business Days following appointment of the third appraiser, each party-appointed appraiser shall provide a complete copy of its appraisal to the third appraiser. If either of the party-appointed appraisers fails to submit its appraisal within such five (5) Business Day period, the other party-appointed appraiser’s FMV determination shall be deemed to be the FMV. If both party-appointed appraisers submit their proposed FMV determinations, the role of the neutral appraiser shall be to select whichever of the two proposed determinations of FMV most closely approximates the neutral appraiser’s own determination of FMV. The neutral appraiser shall have no right to propose a middle ground or any modification of either of the two proposed determinations of FMV. The determination of FMV that the neutral appraiser chooses as that most closely approximating the neutral appraiser’s determination of the FMV shall constitute the decision of the appraisers and shall be final and binding upon the parties. The appraisers shall have no power to modify the provisions of this Lease.
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Related to Determination of FMV

  • Determination of Fair Market Value For purposes of this Section 10.2, “fair market value” of a Share (or Common Stock if the Shares have been converted into Common Stock) as of a particular date (the “Determination Date”) shall mean: (i) If the Conversion Right is exercised in connection with and contingent upon a Public Offering, and if the Company’s Registration Statement relating to such Public Offering (“Registration Statement”) has been declared effective by the Securities and Exchange Commission, then the initial “Price to Public” specified in the final prospectus with respect to such offering. (ii) If the Conversion Right is not exercised in connection with and contingent upon a Public Offering, then as follows: (A) If traded on a securities exchange, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock on such exchange over the five trading days immediately prior to the Determination Date, and the fair market value of the Shares shall be deemed to be such fair market value of the Common Stock multiplied by the number of shares of Common Stock into which each share of Series Preferred is then convertible; (B) If traded on the Nasdaq Stock Market or other over-the-counter system, the fair market value of the Common Stock shall be deemed to be the average of the closing prices of the Common Stock over the five trading days immediately prior to the Determination Date, and the fair market value of the Shares shall be deemed to be such fair market value of the Common Stock multiplied by the number of shares of Common Stock into which each Share is then convertible; and (C) If there is no public market for the Common Stock, then fair market value shall be determined by the Board of Directors of the Company in good faith. In making a determination under clauses (A) or (B) above, if on the Determination Date, five trading days had not passed since the closing of the Company’s initial public offering of its Common Stock (“IPO”), then the fair market value of the Common Stock shall be the average closing prices or closing bid prices, as applicable, for the shorter period beginning on and including the date of the IPO and ending on the trading day prior to the Determination Date (or if such period includes only one trading day, the closing price or closing bid price, as applicable, for such trading day). If closing prices or closing bid prices are no longer reported by a securities exchange or other trading system, the closing price or closing bid price shall be that which is reported by such securities exchange or other trading system at 4:00 p.m. New York City time on the applicable trading day.

  • Determination of Amount In lieu of the payment of the Exercise Price multiplied by the number of Units for which this Purchase Option is exercisable (and in lieu of being entitled to receive Common Stock and Warrants) in the manner required by Section 2.1, the Holder shall have the right (but not the obligation) to convert any exercisable but unexercised portion of this Purchase Option into Units ("Conversion Right") as follows: upon exercise of the Conversion Right, the Company shall deliver to the Holder (without payment by the Holder of any of the Exercise Price in cash) that number of shares of Common Stock and Warrants comprising that number of Units equal to the quotient obtained by dividing (x) the "Value" (as defined below) of the portion of the Purchase Option being converted by (y) the Current Market Value (as defined below). The "Value" of the portion of the Purchase Option being converted shall equal the remainder derived from subtracting (a) (i) the Exercise Price multiplied by (ii) the number of Units underlying the portion of this Purchase Option being converted from (b) the Current Market Value of a Unit multiplied by the number of Units underlying the portion of the Purchase Option being converted. As used herein, the term "Current Market Value" per Unit at any date means the remainder derived from subtracting (x) the exercise price of the Warrants multiplied by the number of shares of Common Stock issuable upon exercise of the Warrants underlying one Unit from (y) the Current Market Price of the Common Stock multiplied by the number of shares of Common Stock underlying the Warrants and the Common Stock issuable upon exercise of one Unit. The "Current Market Price" of a share of Common Stock shall mean (i) if the Common Stock is listed on a national securities exchange or quoted on the Nasdaq National Market, Nasdaq SmallCap Market or NASD OTC Bulletin Board (or successor such as the Bulletin Board Exchange), the last sale price of the Common Stock in the principal trading market for the Common Stock as reported by the exchange, Nasdaq or the NASD, as the case may be; (ii) if the Common Stock is not listed on a national securities exchange or quoted on the Nasdaq National Market, Nasdaq SmallCap Market or the NASD OTC Bulletin Board (or successor such as the Bulletin Board Exchange), but is traded in the residual over-the-counter market, the closing bid price for the Common Stock on the last trading day preceding the date in question for which such quotations are reported by the Pink Sheets, LLC or similar publisher of such quotations; and (iii) if the fair market value of the Common Stock cannot be determined pursuant to clause (i) or (ii) above, such price as the Board of Directors of the Company shall determine, in good faith.

  • Determination of LIBOR (a) On each LIBOR Determination Date, the Trustee will determine LIBOR for the related Interest Accrual Period, which shall be the rate for deposits in United States dollars for a period equal to one month (commencing on the first day of such Interest Accrual Period) that appears on Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, on such date. Upon such determination, the Trustee shall notify the Servicer of LIBOR for such LIBOR Determination Date. If such rate does not appear on Reuters Screen LIBOR01 Page, the rate for the LIBOR Determination Date will be determined on the basis of the rates at which deposits in United States dollars are offered by the Reference Banks at approximately 11:00 a.m., London time, on that day to prime banks in the London interbank market for a period equal to one month (commencing on the first day of such Interest Accrual Period). The Servicer will request the principal London office of each of the Reference Banks to provide a quotation of its rate. If at least two such quotations are provided, the rate for that LIBOR Determination Date will be the arithmetic mean of the quotations. If fewer than two quotations are provided as requested, the rate for that LIBOR Determination Date will be the arithmetic mean of the rates quoted by major banks in New York City, selected by the Servicer, at approximately 11:00 a.m., New York City time, on that day for loans in United States dollars to leading European banks for a period equal to one month (commencing on the first day of such Interest Accrual Period). If the banks selected by the Servicer are not quoting rates as provided in the immediately preceding sentence, LIBOR for such Interest Accrual Period will be LIBOR in effect for the immediately preceding Interest Accrual Period. (b) The Servicer shall determine, and promptly notify the Transferors and the Trustee of, the Class A Certificate Rate and the Class B Certificate Rate for the applicable Interest Accrual Period. The Class A Certificate Rate and Class B Certificate Rate applicable to the then current and the immediately preceding Interest Accrual Periods may be obtained by any Investor Certificateholder by telephoning the Trustee at its Corporate Trust Office at (▇▇▇) ▇▇▇-▇▇▇▇. (c) On each LIBOR Determination Date prior to 3:00 p.m., New York City time, the Trustee shall send to the Transferors and the Servicer by facsimile, notification of LIBOR for the following Interest Accrual Period.

  • Determination of Adjustments If any questions will at any time arise with respect to the Exercise Price or any adjustment provided for in Section 4.8, such questions will be conclusively determined by the Company’s Auditors, or, if they decline to so act any other firm of certified public accountants in the United States of America that the Company may designate and who will have access to all appropriate records and such determination will be binding upon the Company and the Holders of the Warrants.

  • Determination of Gross-Up Payment Subject to sub-paragraph (c) below, all determinations required to be made under this Section 6, including whether a Gross-Up Payment is required and the amount of the Gross-Up Payment, shall be made by the firm of independent public accountants selected by the Company to audit its financial statements for the year immediately preceding the Change in Control (the "Accounting Firm") which shall provide detailed supporting calculations to the Company and the Executive within 30 days after the date of the Executive's termination of employment. In the event that the Accounting Firm is serving as accountant or auditor for the individual, entity or group affecting the Change of Control, the Executive may appoint another nationally recognized accounting firm to make the determinations required under this Section 6 (which accounting firm shall then be referred to as the "Accounting Firm"). All fees and expenses of the Accounting Firm in connection with the work it performs pursuant to this Section 6 shall be promptly paid by the Company. Any Gross-Up Payment shall be paid by the Company to the Executive within 5 days of the receipt of the Accounting Firm's determination. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall furnish the Executive with a written opinion that failure to report the Excise Tax on the Executive's applicable federal income tax return would not result in the imposition of a penalty. Any determination by the Accounting Firm shall be binding upon the Company and the Executive. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Accounting Firm, it is possible that Gross-Up Payments which will not have been made by the Company should have been made ("Underpayment"). In the event that the Company exhausts its remedies pursuant to sub-paragraph (c) below, and the Executive is thereafter required to make a payment of Excise Tax, the Accounting Firm shall promptly determine the amount of the Underpayment that has occurred and any such Underpayment shall be paid by the Company to the Executive within 5 days after such determination. Amended and Restated Change in Control Agreement