Common use of Operation in Accordance with REIT Requirements Clause in Contracts

Operation in Accordance with REIT Requirements. The Partners acknowledge that a direct or indirect member of Starwood (a “Starwood Affiliate”) has elected to qualify as a “real estate investment trust” within the meaning of Code Sections 856-860 (a “REIT”). In furtherance of the foregoing, the Partnership shall be operated at the direction of Starwood in a manner that will enable such Starwood Affiliate to comply with the income and asset requirements of Code Sections 856(c)(2), (c)(3) and (c)(4) and to avoid the imposition of tax on prohibited transactions under Code Section 857(b)(6) (as if the Partnership were a REIT). JVP shall, promptly upon Starwood’s request, make available to Starwood all data and information in the possession of JVP, the Partnership or any of its subsidiaries, which is determined by Starwood to be necessary or helpful to monitor compliance of the Partnership with the requirements for qualification and taxation as a REIT (as if the Partnership were a REIT). The General Partner is authorized and directed to cause the Partnership and any of its subsidiaries to take any actions (and JVP agrees to cooperate with any such actions) as it shall deem necessary in its reasonable judgment to comply with and effectuate the foregoing, including, without limitation, in Starwood’s discretion, to (a) hold investments or conduct activities, including marketing, listing and sale activities, through an entity classified as a corporation for U.S. federal income tax purposes and to cause such corporation to make an election to be treated as a “taxable REIT subsidiary” (a “TRS”) within the meaning of Code Section 856(l) and (b) capitalize such TRS with debt and equity and to cause such debt to be collateralized in such manner as will enable such debt to be a qualifying “real estate asset” for REIT purposes. Notwithstanding anything herein to the contrary, JVP shall not cause the Partnership to take, or refrain from taking, any action that Starwood determines could result in such Starwood Affiliate failing to qualify as a REIT or could result in the imposition of prohibited transaction taxes to such REIT and, in the event of any such determination by Starwood, Starwood shall notify JVP thereof and JVP shall cooperate with Starwood, at Starwood’s sole cost without reimbursement from the Partnership, to take such action, or refrain from taking action, in order to effectuate the intent of this Section 9.11 and Section 8.5 of the GP Agreement. The Partners acknowledge and agree that Starwood may assign any or all of its rights or powers under this Agreement (including its right to designate committee representatives and to provide consents and approvals) to one or more of its Starwood Affiliates as it deems appropriate, and the exercise of any such rights or powers by a Starwood Affiliate shall have full force and effect under this Agreement and under the GP Agreement without the need for any further consent or approval. Starwood agrees to pay all Excess Compliance Costs without reimbursement from the Company or the Partnership and such payment shall not constitute a loan to the Partnership or a Capital Contribution or increase Starwood’s Capital Account; but if the Partnership incurs any Excess Compliance Costs, the provisions of Section 6.2(b) shall apply.

Operation in Accordance with REIT Requirements. The Partners acknowledge that a direct or indirect member of Starwood (a “Starwood Affiliate”) has elected to qualify as a “real estate investment trust” within the meaning of Code Sections 856-860 (a “REIT”). In furtherance of the foregoing, the Partnership shall be operated at the direction of Starwood in a manner that will enable such Starwood Affiliate to comply with the income and asset requirements of Code Sections 856(c)(2), (c)(3) and (c)(4) and to avoid the imposition of tax on prohibited transactions under Code Section 857(b)(6) (as if the Partnership were a REIT). JVP shall, promptly upon Starwood’s request, make available to Starwood all data and information in the possession of JVP, the Partnership or any of its subsidiaries, which is determined by Starwood to be necessary or helpful to monitor compliance of the Partnership with the requirements for qualification and taxation as a REIT (as if the Partnership were a REIT). The General Partner is authorized and directed to cause the Partnership and any of its subsidiaries to take any actions (and JVP agrees to cooperate with any such actions) as it shall deem necessary in its reasonable judgment to comply with and effectuate the foregoing, including, without limitation, in Starwood’s discretion, to (a) hold investments or conduct activities, including marketing, listing and sale activities, through an entity classified as a corporation for U.S. federal income tax purposes and to cause such corporation to make an election to be treated as a “taxable REIT subsidiary” (a “TRS”) within the meaning of Code Section 856(l) and (b) capitalize such TRS with debt and equity and to cause such debt to be collateralized in such manner as will enable such debt to be a qualifying “real estate asset” for REIT purposes. Notwithstanding anything herein to the contrary, JVP shall not cause the Partnership to take, or refrain from taking, any action that Starwood determines could result in such Starwood Affiliate failing to qualify as a REIT or could result in the imposition of prohibited transaction taxes to such REIT and, in the event of any such determination by Starwood, Starwood shall notify JVP thereof and JVP shall cooperate with Starwood, at Starwood’s sole cost without reimbursement from the Partnership, to take such action, or refrain from taking action, in order to effectuate the intent of this Section 9.11 and Section 8.5 of the GP Agreement. The Partners acknowledge and agree that Starwood may assign any or all of its rights or powers under this Agreement (including its right to designate committee representatives and to provide consents and approvals) to one or more of its Starwood Affiliates as it deems appropriate, and the exercise of any such rights or powers by a Starwood Affiliate shall have full force and effect under this Agreement and under the GP Agreement without the need for any further consent or approval. Starwood agrees to pay all Excess Compliance Costs without reimbursement from the Company or the Partnership and such payment shall not constitute a loan to the Partnership or a Capital Contribution or increase Starwood’s Capital Account; but if the Partnership incurs any Excess Compliance Costs, the provisions of Section 6.2(b) shall apply.8.5