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

Operation in Accordance with REOC/REIT Requirements. (a) The Members acknowledge that Investor or one or more of its Affiliates (a “BR Affiliate”) intends to qualify as a “real estate operating company” or “venture capital operating company” within the meaning of U.S. Department of Labor Regulation 29 C.F.R. §2510.3-101 (a “REOC”), and agree that the Company and its Subsidiaries shall be operated in a manner that will enable Investor and such BR Affiliate to so qualify. Notwithstanding anything herein to the contrary, the Company and its Subsidiaries shall not take, or refrain from taking, any action that Investor notifies the Company would result in Investor or a BR Affiliate from failing to qualify as a REOC. Except as disclosed to Investor, Hxxxxxxx and/or JHVG (a) shall not fund any Capital Contribution "with the 'plan assets' of any 'employee benefit plan' within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended or any 'plan' as defined by Section 4975 of the Internal Revenue Code of 1986, as amended", and (b) shall comply with any requirements specified by Investor in order to ensure compliance with this Section 6.4. (b) Except for the Property and the Fxxxxxx Mac Loan (and any refinance thereof), the Company shall not hold any investment, incur any indebtedness or otherwise take any action that would cause any Member of the Company (or any Person holding an indirect interest in the Company through an entity or series of entities treated as partnerships for U.S. federal income tax purposes) to realize any “unrelated business taxable income” as such term is defined in Code Sections 511 through 514, unless specifically agreed to by the Members in writing. No Manager or other Member shall be liable for any income or other taxes, damages, costs or expenses incurred by the Company or any Member by reason of the recognition by the Company of UBTI, unless caused by its own willful misconduct or gross negligence. (c) The Company may not engage in any activities or hold any assets that would constitute or result in the occurrence of a REIT Prohibited Transaction as defined herein. Notwithstanding anything to the contrary contained in this Agreement, during the time a REIT Member is a Member of the Company, neither the Company nor any Member of the Company shall take or refrain from taking any action which, or the effect of which, would constitute or result in the occurrence of a REIT Prohibited Transaction by the Company or any direct or indirect subsidiary thereof, including without limiting the generality of the foregoing, but in amplification thereof: (i) Entering into any lease, license, concession or other agreement or permitting any sublease, license, concession or other agreement that provides for rent or other payment based in whole or in part on the income or profits of any person, excluding for this purpose a lease that provides for rent based in whole or in part on a fixed percentage or percentages of gross receipts or gross sales of any person without reduction for any costs of the lessee (and in the case of a sublease, without reduction for any sublessor costs); (ii) Leasing personal property, excluding for this purpose a lease of personal property that is entered into in connection with a lease of real property where the rent attributable to the personal property is less than 15% of the total rent provided for under the lease; (iii) Acquiring or holding any debt investments, excluding for these purposes “debt” solely between wholly-owned Subsidiaries of the Company, unless (I) the amount of interest income received or accrued by the Company under such loan does not, directly or indirectly, depend in whole or in part on the income or profits of any person, or entering into any lending transaction unless the loan made by the Company meets an exception set forth in Section 856(m)(l) of the Code and (II) the debt is fully secured by mortgages on real property or on interests in real property; (iv) Acquiring or holding, directly or indirectly, more than 10% of the outstanding securities of any one issuer (by vote or value) other than an entity which either (i) is taxable as a partnership or a disregarded entity for United States federal income tax purposes, (ii) has properly elected to be a taxable REIT subsidiary of the REIT Member by jointly filing with REIT, IRS Form 8875, or (iii) has properly elected to be a real estate investment trust for U.S. federal income tax purposes; (v) Entering into any agreement where the Company receives amounts, directly or indirectly, for rendering services to the tenants of any property that is owned, directly or indirectly, by the Company other than (i) amounts received for services that are customarily furnished or rendered in connection with the rental of real property of a similar class in the geographic areas in which the Property is located where such services are either provided by (A) an Independent Contractor (as defined in Section 856(d)(3) of the Code) who is adequately compensated for such services and from which the Company or REIT Member do not, directly or indirectly, derive revenue or (B) a taxable REIT subsidiary of REIT Member who is adequately compensated for such services or (ii) amounts received for services that are customarily furnished or rendered in connection with the rental of space for occupancy only (as opposed to being rendered primarily for the convenience of the Property’s tenants); (vi) Entering into any agreement where a material amount of income received or accrued by the Company under such agreement, directly or indirectly, does not qualify as either (i) “rents from real property” or (ii) “interest on obligations secured by mortgages on real property or on interests in real property,” in each case as such terms are defined in Section 856(c) of the Code; (vii) Holding cash of the Company available for operations or distribution in any manner other than a traditional bank checking or savings account or money market fund; (viii) Selling or disposing of any property, subsidiary or other asset of the Company prior to (i) the completion of a two (2) year holding period with such period to begin on the date the Company acquires a direct or indirect interest in such property and begins to hold such property, subsidiary or asset for the production of rental income, and (ii) the satisfaction of any other requirements under Section 857 of the Code necessary for the avoidance of a prohibited transaction tax on the REIT; or (ix) To the extent Operating Cash Flow is available, failing to make current cash distributions to REIT Member each year in an amount which does not at least equal the taxable income allocable to REIT Member for such year. (d) Notwithstanding the foregoing provisions of this Section 6.4, the Company may enter into a REIT Prohibited Transaction if it receives the prior written approval of the REIT Member specifically acknowledging that the REIT Member is approving a REIT Prohibited Transaction pursuant to this Section 6.4. For purposes of this Section 6.4, “REIT Prohibited Transactions” shall mean any of the actions specifically set forth in Sections 6.4(c)(i) through (c)(ix) as well as any action of which the Company receives timely, advance written notice from Investor or a REIT Member that such action would result in a REIT Member losing its REIT status under IRC Section 856 or would cause such REIT Member to be subject to any punitive taxation pursuant to IRC Section 857(b)(6). The Fxxxxxx Mac Loan shall not be considered a REIT Prohibited Transaction. No Manager or other Member shall be liable for a violation of Section 6.4(c) unless such violation is caused by its own willful misconduct or gross negligence.

Operation in Accordance with REOC/REIT Requirements. (a) The Members acknowledge that Investor SOIF or one or more of its Affiliates, and SOIF II and one or more of its Affiliates (each, a “BR Affiliate”) ), intends to qualify as a “real estate operating company” or “venture capital operating company” within the meaning of U.S. Department of Labor Regulation 29 C.F.R. §2510.3-101 (a “REOC”), and agree that the Company and its Subsidiaries shall be operated in a manner that will enable Investor SOIF, SOIF II and such BR Affiliate to so qualify. Notwithstanding anything herein to the contrary, the Company and its Subsidiaries shall not take, or refrain from taking, any action that Investor notifies the Company would result in Investor SOIF or a BR Affiliate SOIF Affiliate, or SOIF II or a SOIF II Affiliate, from failing to qualify as a REOC. Except as disclosed to Investor, Hxxxxxxx and/or JHVG The Members (a) shall not fund any Capital Contribution "with the 'plan assets' of any 'employee benefit plan' within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended or any 'plan' as defined by Section 4975 of the Internal Revenue Code of 1986, as amended", and (b) shall comply with any requirements specified by Investor SOIF or SOIF II in order to ensure compliance with this Section 6.49.4. (b) Except for Notwithstanding anything in this Agreement to the Property and contrary, unless specifically agreed to by the Fxxxxxx Mac Loan (and any refinance thereof)Managers in writing, neither the Company nor its Subsidiaries shall not hold any investment, incur any indebtedness or otherwise take any action that would cause any Member of the Company (or any Person holding an indirect interest in the Company through an entity or series of entities treated as partnerships for U.S. federal income tax purposes) to realize any “unrelated business taxable income” as such term is defined in Code Sections 511 through 514, unless specifically agreed to by the Members in writing. No Manager or other Member shall be liable for any income or other taxes, damages, costs or expenses incurred by the Company or any Member by reason of the recognition by the Company of UBTI, unless caused by its own willful misconduct or gross negligence. (c) The Company (and any direct or indirect Subsidiary of the Company) may not engage in any activities or hold any assets that would constitute or result in the occurrence of a REIT Prohibited Transaction as defined herein. Notwithstanding anything to the contrary contained in this Agreement, during the time a REIT Member is a Member of the Company, neither the Company Company, any direct or indirect Subsidiary of the Company, nor any Member of the Company shall take or refrain from taking any action which, or the effect of which, would constitute or result in the occurrence of a REIT Prohibited Transaction by the Company or any direct or indirect subsidiary Subsidiary thereof, including without limiting the generality of the foregoing, but in amplification thereof: (i) Entering into any lease, license, concession or other agreement or permitting any sublease, license, concession or other agreement that provides for rent or other payment based in whole or in part on the income or profits of any person, excluding for this purpose a lease that provides for rent based in whole or in part on a fixed percentage or percentages of gross receipts or gross sales of any person without reduction for any costs of the lessee (and in the case of a sublease, without reduction for any sublessor costs); (ii) Leasing personal property, excluding for this purpose a lease of personal property that is entered into in connection with a lease of real property where the rent attributable to the personal property is less than 15% of the total rent provided for under the lease; (iii) Acquiring or holding any debt investments, excluding for these purposes “debt” solely between wholly-owned Subsidiaries of the Company, unless (I) the amount of interest income received or accrued by the Company under such loan does not, directly or indirectly, depend in whole or in part on the income or profits of any person, or entering into any lending transaction unless the loan made by the Company meets an exception set forth in Section 856(m)(l) of the Code and (II) the debt is fully secured by mortgages on real property or on interests in real property. Notwithstanding anything to the contrary herein, in the case of debt issued to the Company by a Subsidiary which is treated as a “taxable REIT subsidiary” of the REIT Member, such debt shall be secured by a mortgage or similar security interest, or by a pledge of the equity ownership of a subsidiary of such taxable REIT subsidiary; (iv) Acquiring or holding, directly or indirectly, more than 10% of the outstanding securities of any one issuer (by vote or value) other than an entity which either (i) is taxable as a partnership or a disregarded entity for United States federal income tax purposes, (ii) has properly elected to be a taxable REIT subsidiary of the REIT Member by jointly filing with REIT, IRS Form 8875, or (iii) has properly elected to be a real estate investment trust for U.S. federal income tax purposes; (v) Entering into any agreement where the Company receives amounts, directly or indirectly, for rendering services to the tenants of any property that is owned, directly or indirectly, by the Company other than (i) amounts received for services that are customarily furnished or rendered in connection with the rental of real property of a similar class in the geographic areas in which the Property is located where such services are either provided by (A) an Independent Contractor (as defined in Section 856(d)(3) of the Code) who is adequately compensated for such services and from which the Company or REIT Member do not, directly or indirectly, derive revenue or (B) a taxable REIT subsidiary of REIT Member who is adequately compensated for such services or (ii) amounts received for services that are customarily furnished or rendered in connection with the rental of space for occupancy only (as opposed to being rendered primarily for the convenience of the Property’s tenants); (vi) Entering into any agreement where a material amount of income received or accrued by the Company under such agreement, directly or indirectly, does not qualify as either (i) “rents from real property” or (ii) “interest on obligations secured by mortgages on real property or on interests in real property,” in each case as such terms are defined in Section 856(c) of the Code; (vii) Holding cash of the Company available for operations or distribution in any manner other than a traditional bank checking or savings account or money market fundaccount; (viii) Selling or disposing of any property, subsidiary or other asset of the Company prior to (i) the completion of a two (2) year holding period with such period to begin on the date the Company acquires a direct or indirect interest in such property and begins to hold such property, subsidiary or asset for the production of rental income, and (ii) the satisfaction of any other requirements under Section 857 of the Code necessary for the avoidance of a prohibited transaction tax on the REIT; or (ix) To the extent Operating Cash Flow is available, failing Failing to make current cash distributions to REIT Member each year in an amount which does not at least equal the taxable income allocable to REIT Member for such year. (d) Notwithstanding the foregoing provisions of this Section 6.4, the Company may enter into a REIT Prohibited Transaction if it receives the prior written approval of the REIT Member specifically acknowledging that the REIT Member is approving a REIT Prohibited Transaction pursuant to this Section 6.4. For purposes of this Section 6.4, “REIT Prohibited Transactions” shall mean any of the actions specifically set forth in Sections 6.4(c)(i) through (c)(ix) as well as any action of which the Company receives timely, advance written notice from Investor or a REIT Member that such action would result in a REIT Member losing its REIT status under IRC Section 856 or would cause such REIT Member to be subject to any punitive taxation pursuant to IRC Section 857(b)(6). The Fxxxxxx Mac Loan shall not be considered a REIT Prohibited Transaction. No Manager or other Member shall be liable for a violation of Section 6.4(c) unless such violation is caused by its own willful misconduct or gross negligence.

Operation in Accordance with REOC/REIT Requirements. (a) 5.15.1 The Members acknowledge that Investor BR Member or one or more of its Affiliates (a an “BR Affiliate”) intends to qualify as a “real estate operating company” or “venture capital operating company” within the meaning of U.S. Department of Labor Regulation 29 C.F.R. §2510.3-101 (a “REOC”), and agree that the Company and its Subsidiaries shall be operated in a manner that will enable Investor BR Member and such BR Affiliate to so qualify. Notwithstanding anything herein ; provided, however, in no event shall the foregoing require any loss of voting or decision rights to the contrary, the Company and its Subsidiaries shall not take, Stonehenge Member or refrain from taking, any action that Investor notifies the Company would result in Investor or a BR Affiliate from failing to qualify as a REOCany adverse economic rights of the Stonehenge Member. Except as disclosed to InvestorBR Member, Hxxxxxxx and/or JHVG Stonehenge Member (a) shall not fund any Capital Contribution "with the '‘plan assets' ’ of any '‘employee benefit plan' ’ within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended amended, or any '‘plan' ’ as defined by Section 4975 of the Internal Revenue Code of 1986, as amended", and (b) shall comply with any requirements specified by Investor in order to ensure compliance with this Section 6.4. (b) 5.15.2 Except for the Property and the Fxxxxxx Mac Loan (and any refinance thereof)Property, neither the Company nor its Subsidiaries shall not hold any investment, incur any indebtedness or otherwise take any action that would cause any Member of the Company (or any Person holding an indirect interest in the Company through an entity or series of entities treated as partnerships for U.S. federal income tax purposes) to realize any “unrelated business taxable income” as such term is defined in Code Sections 511 through 514, unless specifically agreed to by the Members in writing. No Manager or other Member shall be liable for any income or other taxes, damages, costs or expenses incurred by the Company or any Member by reason of the recognition by the Company of UBTI, unless caused by its own willful misconduct or gross negligencenegligence and not related to the Property. (c) 5.15.3 The Company (and any direct or indirect Subsidiary of the Company) may not engage in any activities or hold any assets that would constitute or result in the occurrence of a REIT Prohibited Transaction as defined herein. Notwithstanding anything to the contrary contained in this Agreement, during the time a REIT Member is a Member of the Company, neither the Company Company, any direct or indirect Subsidiary of the Company, nor any Member of the Company shall take or refrain from taking any action which, or the effect of which, would constitute or result in the occurrence of a REIT Prohibited Transaction by the Company or any direct or indirect subsidiary Subsidiary thereof, including without limiting the generality of the foregoing, but in amplification thereof: (i) 5.15.3.1 Entering into any lease, license, concession or other agreement or permitting any sublease, license, concession or other agreement that provides for rent or other payment based in whole or in part on the income or profits of any person, excluding for this purpose a lease that provides for rent based in whole or in part on a fixed percentage or percentages of gross receipts or gross sales of any person without reduction for any costs of the lessee (and in the case of a sublease, without reduction for any sublessor costs); (ii) Leasing 5.15.3.2 Leasing, as a lessor, personal property, excluding for this purpose a lease of personal property that is entered into in connection with a lease of real property where the rent attributable to the personal property is less than 15% of the total rent provided for under the lease; (iii) 5.15.3.3 Acquiring or holding any debt investments, excluding for these purposes “debt” solely between wholly-owned Subsidiaries of the Company, unless (I) the amount of interest income received or accrued by the Company under such loan does not, directly or indirectly, depend in whole or in part on the income or profits of any person, or entering into any lending transaction unless the loan made by the Company meets an exception set forth in Section 856(m)(l) of the Code and (II) the debt is fully secured by mortgages on real property or on interests in real property. Notwithstanding anything to the contrary herein, in the case of debt issued to the Company by a Subsidiary which is treated as a “taxable REIT subsidiary” of the REIT Member, such debt shall be secured by a mortgage or similar security interest, or by a pledge of the equity ownership of a subsidiary of such taxable REIT subsidiary; (iv) 5.15.3.4 Acquiring or holding, directly or indirectly, more than 10% of the outstanding securities of any one issuer (by vote or value) other than an entity which either (i) is taxable as a partnership or a disregarded entity for United States federal income tax purposes, (ii) has properly elected to be a taxable REIT subsidiary of the REIT Member by jointly filing with REIT, IRS Form 8875, or (iii) has properly elected to be a real estate investment trust for U.S. federal income tax purposes; (v) 5.15.3.5 Entering into any agreement where the Company receives amounts, directly or indirectly, for rendering services to the tenants of any property that is owned, directly or indirectly, by the Company other than (i) amounts received for services that are customarily furnished or rendered in connection with the rental of real property of a similar class in the geographic areas in which the Property is located where such services are either provided by (A) an Independent Contractor (as defined in Section 856(d)(3) of the Code) who is adequately compensated for such services and from which the Company or REIT Member do not, directly or indirectly, derive revenue or (B) a taxable REIT subsidiary of REIT Member who is adequately compensated for such services or (ii) amounts received for services that are customarily furnished or rendered in connection with the rental of space for occupancy only (as opposed to being rendered primarily for the convenience of the Property’s tenants); (vi) 5.15.3.6 Entering into any agreement where a material amount of income received or accrued by the Company under such agreement, directly or indirectly, does not qualify as either (i) “rents from real property” or (ii) “interest on obligations secured by mortgages on real property or on interests in real property,” in each case as such terms are defined in Section 856(c) of the Code; (vii) 5.15.3.7 Holding cash of the Company available for operations or distribution in any manner other than a traditional bank checking or savings account or money market fundaccount; (viii) 5.15.3.8 Selling or disposing of any property, subsidiary or other asset of the Company prior to (i) the completion of a two (2) year holding period with such period to begin on the date the Company acquires a direct or indirect interest in such property and begins to hold such property, subsidiary or asset for the production of rental income, and (ii) the satisfaction of any other requirements under Section 857 of the Code necessary for the avoidance of a prohibited transaction tax on the REIT; provided, that such restriction shall not affect, restrict or be deemed to modify either Member’s right to exercise its buy-sell rights under Section 12.07; or (ix) To the extent Operating Cash Flow is available, failing 5.15.3.9 Failing to make current cash distributions to REIT Member each year in an amount which does not at least equal the taxable income allocable to REIT Member for such year. (d) 5.15.4 Notwithstanding the foregoing provisions of this Section 6.45.15.3, the Company may enter into a REIT Prohibited Transaction if it receives the prior written approval of the REIT Member specifically acknowledging that the REIT Member is approving a REIT Prohibited Transaction pursuant to this Section 6.45.15.3. For purposes of this Section 6.45.15.3, “REIT Prohibited Transactions” shall mean any of the actions specifically set forth in Sections 6.4(c)(i5.15.3(1) through (c)(ix) as well as any action of which the Company receives timely, advance written notice from Investor or a REIT Member that such action would result in a REIT Member losing its REIT status under IRC Section 856 or would cause such REIT Member to be subject to any punitive taxation pursuant to IRC Section 857(b)(69). The Fxxxxxx Mac Loan shall not be considered a REIT Prohibited Transaction. No Manager or other Member shall be liable for a violation of Section 6.4(c) unless such violation is caused by its own willful misconduct or gross negligence.

Operation in Accordance with REOC/REIT Requirements. (a) 5.16.1 The Members acknowledge that Investor BR Member or one or more of its Affiliates (a an “BR Affiliate”) intends to qualify as a “real estate operating company” or “venture capital operating company” within the meaning of U.S. Department of Labor Regulation 29 C.F.R. §2510.3-101 (a “REOC”), and agree that the Company and its Subsidiaries shall be operated in a manner that will enable Investor BR Member and such BR Affiliate to so qualify. Notwithstanding ; provided, however, notwithstanding anything herein contained in this Section 5.16 to the contrary, in no event shall the Company and its Subsidiaries shall not take, foregoing require any loss of voting or refrain from taking, any action that Investor notifies decision rights to the Company would TriBridge Member or result in Investor or a BR Affiliate from failing to qualify as a REOCany adverse effect on the economic rights of the TriBridge Member. Except as disclosed to InvestorBR Member, Hxxxxxxx and/or JHVG TriBridge Member (a) shall not fund any Capital Contribution "with the '‘plan assets' ’ of any '‘employee benefit plan' ’ within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended amended, or any '‘plan' ’ as defined by Section 4975 of the Internal Revenue Code of 1986, as amended", and (b) shall comply with any requirements specified by Investor in order to ensure compliance with this Section 6.4. (b) 5.16.2 Except for the Property and the Fxxxxxx Mac Loan (and any refinance thereof)Project, neither the Company nor its Subsidiaries shall not hold any investment, incur any indebtedness or otherwise take any action that would cause any Member of the Company (or any Person holding an indirect interest in the Company through an entity or series of entities treated as partnerships for U.S. federal income tax purposes) to realize any “unrelated business taxable income” as such term is defined in Code Sections 511 through 514, unless specifically agreed to by the Members in writing. No Manager or other Member shall be liable for any income or other taxes, damages, costs or expenses incurred by the Company or any Member by reason of the recognition by the Company of UBTI, unless caused by its own willful misconduct or gross negligencenegligence and not related to the Project. (c) 5.16.3 The Company (and any direct or indirect Subsidiary of the Company) may not engage in any activities or hold any assets that would constitute or result in the occurrence of a REIT Prohibited Transaction as defined herein. Notwithstanding anything to the contrary contained in this Agreement, during the time a REIT Member is a Member of the Company, neither none of the Company Company, any direct or indirect Subsidiary of the Company, nor any Member of the Company shall take or refrain from taking any action which, or the effect of which, would constitute or result in the occurrence of a REIT Prohibited Transaction by the Company or any direct or indirect subsidiary Subsidiary thereof, including without limiting the generality of the foregoing, but in amplification thereof: (i) 5.16.3.1 Entering into any lease, license, concession or other agreement or permitting any sublease, license, concession or other agreement that provides for rent or other payment based in whole or in part on the income or profits of any person, excluding for this purpose a lease that provides for rent based in whole or in part on a fixed percentage or percentages of gross receipts or gross sales of any person without reduction for any costs of the lessee (and in the case of a sublease, without reduction for any sublessor costs); (ii) Leasing 5.16.3.2 Leasing, as a lessor, personal property, excluding for this purpose a lease of personal property that is entered into in connection with a lease of real property where the rent attributable to the personal property is less than fifteen percent (15% %) of the total rent provided for under the lease; (iii) 5.16.3.3 Acquiring or holding any debt investments, excluding for these purposes “debt” solely between wholly-owned Subsidiaries of the Company, unless (Ii) the amount of interest income received or accrued by the Company under such loan does not, directly or indirectly, depend in whole or in part on the income or profits of any person, or entering into any lending transaction unless the loan made by the Company meets an exception set forth in Section 856(m)(l) of the Code and (IIii) the debt is fully secured by mortgages on real property or on interests in real property. Notwithstanding anything to the contrary herein, in the case of debt issued to the Company by a Subsidiary which is treated as a “taxable REIT subsidiary” of the REIT Member, such debt shall be secured by a mortgage or similar security interest, or by a pledge of the equity ownership of a subsidiary of such taxable REIT subsidiary; (iv) 5.16.3.4 Acquiring or holding, directly or indirectly, more than ten percent (10% %) of the outstanding securities of any one issuer (by vote or value) other than an entity which either (i) is taxable as a partnership or a disregarded entity for United States federal income tax purposes, (ii) has properly elected to be a taxable REIT subsidiary of the REIT Member by jointly filing with REIT, IRS Form 8875, or (iii) has properly elected to be a real estate investment trust for U.S. federal income tax purposes; (v) 5.16.3.5 Entering into any agreement where the Company receives amounts, directly or indirectly, for rendering services to the tenants of any property that is owned, directly or indirectly, by the Company other than (i) amounts received for services that are customarily furnished or rendered in connection with the rental of real property of a similar class in the geographic areas in which the Property is located where such services are either provided by (A) an Independent Contractor (as defined in Section 856(d)(3) of the Code) who is adequately compensated for such services and from which the Company or REIT Member do not, directly or indirectly, derive revenue revenue, or (B) a taxable REIT subsidiary of REIT Member who is adequately compensated for such services services, or (ii) amounts received for services that are customarily furnished or rendered in connection with the rental of space for occupancy only (as opposed to being rendered primarily for the convenience of the PropertyProject’s tenants); (vi) 5.16.3.6 Entering into any agreement where a material amount of income received or accrued by the Company under such agreement, directly or indirectly, does not qualify as either (i) “rents from real property,” or (ii) “interest on obligations secured by mortgages on real property or on interests in real property,” in each case as such terms are defined in Section 856(c) of the Code; (vii) 5.16.3.7 Holding cash of the Company available for operations or distribution in any manner other than a traditional bank checking or savings account or money market fundaccount; (viii) 5.16.3.8 Selling or disposing of any property, subsidiary or other asset of the Company prior to (i) the completion of a two (2) year holding period with such period to begin on the date the Company acquires a direct or indirect interest in such property and begins to hold such property, subsidiary or asset for the production of rental income, and (ii) the satisfaction of any other requirements under Section 857 of the Code necessary for the avoidance of a prohibited transaction tax on the REIT; orprovided, that such restriction shall not affect, restrict or be deemed to modify (i) either Member’s right to exercise its buy-sell rights under Section 12.06; (ii) BR Member’s rights pursuant to Section 6.05(d); or (iii) either party's rights pursuant to Section 6.05(e). (ix) 5.16.3.9 To the extent Operating of Available Cash Flow is availableand Reserves, failing to make current cash distributions to REIT Member each year in an amount which does not at least equal the taxable income allocable to REIT Member for such year. (d) 5.16.4 Notwithstanding the foregoing provisions of this Section 6.45.16.3, the Company may enter into a REIT Prohibited Transaction if it receives the prior written approval of the REIT Member specifically acknowledging that the REIT Member is approving a REIT Prohibited Transaction pursuant to this Section 6.45.16.4. For purposes of this Section 6.45.16.4, “REIT Prohibited Transactions” shall mean any of the actions specifically set forth in Sections 6.4(c)(i5.16.3 (1) through (c)(ix) as well as any action of which the Company receives timely, advance written notice from Investor or a REIT Member that such action would result in a REIT Member losing its REIT status under IRC Section 856 or would cause such REIT Member to be subject to any punitive taxation pursuant to IRC Section 857(b)(69). The Fxxxxxx Mac Loan shall not be considered a REIT Prohibited Transaction. No Manager or other Member shall be liable for a violation of Section 6.4(c) unless such violation is caused by its own willful misconduct or gross negligence.

Operation in Accordance with REOC/REIT Requirements. (a) The Members acknowledge that Investor or one or more Affiliates of its Affiliates the Members (a “"BR Affiliate”") intends to qualify as a “"real estate operating company” " or “"venture capital operating company” " within the meaning of U.S. Department of Labor Regulation 29 C.F.R. §2510.3-101 (a “"REOC”"), and agree that the Company and its Subsidiaries shall be operated in a manner that will enable Investor and such BR Affiliate to so qualifyqualify . Notwithstanding anything herein to the contrary, the Company and its Subsidiaries shall not take, or refrain from taking, any action that Investor notifies the Company would result in Investor or a BR Affiliate from failing to qualify as a REOC. Except as disclosed to Investor, Hxxxxxxx and/or JHVG (a) No Member shall not fund any Capital Contribution "with the 'plan assets' of any 'employee benefit plan' within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended or any 'plan' as defined by Section 4975 of the Internal Revenue Code of 1986, as amended", and (b) shall comply with any requirements specified by Investor in order to ensure compliance with this Section 6.4. (b) Except for Notwithstanding anything in this Agreement to the Property and contrary, unless specifically agreed to by the Fxxxxxx Mac Loan (and any refinance thereof)Manager in writing, neither the Company nor its Subsidiaries shall not hold any investment, incur any indebtedness or otherwise take any action that would cause any Member of the Company (or any Person holding an indirect interest in the Company through an entity or series of entities treated as partnerships for U.S. federal income tax purposes) to realize any “"unrelated business taxable income” " as such term is defined in Code Sections 511 through 514, unless specifically agreed to by the Members in writing. No Manager or other Member shall be liable for any income or other taxes, damages, costs or expenses incurred by the Company or any Member by reason of the recognition by the Company of UBTI, unless caused by its own willful misconduct or gross negligence. (c) The Company (and any direct or indirect Subsidiary of the Company) may not engage in any activities or hold any assets that would constitute or result in the occurrence of a REIT Prohibited Transaction as defined herein. Notwithstanding anything to the contrary contained in this Agreement, during the time a REIT Member is a Member of the Company, neither the Company Company, any direct or indirect Subsidiary of the Company, nor any Member of the Company shall take or refrain from taking any action which, or the effect of which, would constitute or result in the occurrence of a REIT Prohibited Transaction by the Company or any direct or indirect subsidiary Subsidiary thereof, including without limiting the generality of the foregoing, but in amplification thereof: (i) Entering into any lease, license, concession or other agreement or permitting any sublease, license, concession or other agreement that provides for rent or other payment based in whole or in part on the income or profits of any person, excluding for this purpose a lease that provides for rent based in whole or in part on a fixed percentage or percentages of gross receipts or gross sales of any person without reduction for any costs of the lessee (and in the case of a sublease, without reduction for any sublessor costs); (ii) Leasing personal property, excluding for this purpose a lease of personal property that is entered into in connection with a lease of real property where the rent attributable to the personal property is less than 15% of the total rent provided for under the lease; (iii) Acquiring or holding any debt investments, excluding for these purposes “"debt” " solely between wholly-owned Subsidiaries of the Company, unless (I) the amount of interest income received or accrued by the Company under such loan does not, directly or indirectly, depend in whole or in part on the income or profits of any person, or entering into any lending transaction unless the loan made by the Company meets an exception set forth in Section 856(m)(l) of the Code and (II) the debt is fully secured by mortgages on real property or on interests in real property. Notwithstanding anything to the contrary herein , in the case of debt issued to the Company by a Subsidiary which is treated as a "taxable REIT subsidiary'' of the REIT Member such debt shall be secured by a mortgage or similar security interest, or by a pledge of the equity ownership of a subsidiary of such taxable REIT subsidiary; (iv) Acquiring or holding, directly or indirectly, more than 10% of the outstanding securities of any one issuer (by vote or value) other than an entity which either (i) is taxable as a partnership or a disregarded entity for United States federal income tax purposes, (ii) has properly elected to be a taxable REIT subsidiary of the REIT Member by jointly filing with the associated REIT, IRS Form 8875, or (iii) has properly elected to be a real estate investment trust for U.S. federal income tax purposes; (v) Entering into any agreement where the Company receives amounts, directly or indirectly, for rendering services to the tenants of any property that is owned, directly or indirectly, by the Company other than (i) amounts received for services that are customarily furnished or rendered in connection with the rental of real property of a similar class in the geographic areas in which the Property is located where such services are either provided by (A) an Independent Contractor (as defined in Section 856(d)(3) of the Code) who is adequately compensated for such services and from which the Company or REIT Member do not, directly or indirectly, derive revenue or (B) a taxable REIT subsidiary of REIT Member who is adequately compensated for such services or (ii) amounts received for services that are customarily furnished or rendered in connection with the rental of space for occupancy only (as opposed to being rendered primarily for the convenience of the Property’s 's tenants); (vi) Entering into any agreement where a material amount of income received or accrued by the Company under such agreement, directly or indirectly, does not qualify as either (i) “"rents from real property” " or (ii) “"interest on obligations secured by mortgages on real property or on interests in real property,” " in each case as such terms are defined in Section 856(c) of the Code; (vii) Holding cash of the Company available for operations or distribution in any manner other than a traditional bank checking or savings account or money market fundaccount; (viii) Selling or disposing of any property, subsidiary or other asset of the Company prior to (i) the completion of a two (2) year holding period with such period to begin on the date the Company acquires a direct or indirect interest in such property and begins to hold such property, subsidiary or asset for the production of rental income, and (ii) the satisfaction of any other requirements under Section 857 of the Code necessary for the avoidance of a prohibited transaction tax on the REIT; or (ix) To the extent Operating Cash Flow is available, failing Failing to make current cash distributions to REIT Member each year in an amount which does not at least equal the taxable income allocable to REIT Member for such year. (d) . Notwithstanding the foregoing provisions of this Section 6.49.4(c), the Company may enter into a REIT Prohibited Transaction if it receives the prior written approval of the REIT Member specifically acknowledging that the REIT Member is approving a REIT Prohibited Transaction pursuant to this Section 6.49.4(c). For purposes of this Section 6.49.4(c), “"REIT Prohibited Transactions” " shall mean any of the actions specifically set forth in Sections 6.4(c)(i) through (c)(ix) as well as any action of which the Company receives timely, advance written notice from Investor or a REIT Member that such action would result in a REIT Member losing its REIT status under IRC this Section 856 or would cause such REIT Member to be subject to any punitive taxation pursuant to IRC Section 857(b)(69.4(c). The Fxxxxxx Mac Loan shall not be considered a REIT Prohibited Transaction. No Manager or other Member shall be liable for a violation of Section 6.4(c) unless such violation is caused by its own willful misconduct or gross negligence.

Operation in Accordance with REOC/REIT Requirements. (a) 5.16.1 The Members acknowledge that Investor BR Member or one or more of its Affiliates (a “an "BR Affiliate”") intends to qualify as a “"real estate operating company” " or “"venture capital operating company” " within the meaning of U.S. Department of Labor Regulation 29 C.F.R. §2510.3-101 (a “"REOC”"), and agree that the Company and its Subsidiaries shall be operated in a manner that will enable Investor BR Member and such BR Affiliate to so qualify. Notwithstanding anything herein ; provided, however, in no event shall the foregoing require any loss of voting or decision rights to the contrary, the Company and its Subsidiaries shall not take, Catalyst Member or refrain from taking, any action that Investor notifies the Company would result in Investor or a BR Affiliate from failing to qualify as a REOCany adverse economic rights of the Catalyst Member. Except as disclosed to InvestorBR Member, Hxxxxxxx and/or JHVG Catalyst Member (a) shall not fund any Capital Contribution "with the 'plan assets' of any 'employee benefit plan' within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended amended, or any 'plan' as defined by Section 4975 of the Internal Revenue Code of 1986, as amended", and (b) shall comply with any requirements specified by Investor in order to ensure compliance with this Section 6.4. (b) 5.16.2 Except for the Property and the Fxxxxxx Mac Loan (and any refinance thereof)Property, neither the Company nor its Subsidiaries shall not hold any investment, incur any indebtedness or otherwise take any action that would cause any Member of the Company (or any Person holding an indirect interest in the Company through an entity or series of entities treated as partnerships for U.S. federal income tax purposes) to realize any “"unrelated business taxable income” " as such term is defined in Code Sections 511 through 514, unless specifically agreed to by the Members in writing. No Manager or other Member shall be liable for any income or other taxes, damages, costs or expenses incurred by the Company or any Member by reason of the recognition by the Company of UBTI, unless caused by its own willful misconduct or gross negligencenegligence and not related to the Property. (c) 5.16.3 The Company (and any direct or indirect Subsidiary of the Company) may not engage in any activities or hold any assets that would constitute or result in the occurrence of a REIT Prohibited Transaction as defined herein. Notwithstanding anything to the contrary contained in this Agreement, during the time a REIT Member is a Member of the Company, neither the Company Company, any direct or indirect Subsidiary of the Company, nor any Member of the Company shall take or refrain from taking any action which, or the effect of which, would constitute or result in the occurrence of a REIT Prohibited Transaction by the Company or any direct or indirect subsidiary Subsidiary thereof, including without limiting the generality of the foregoing, but in amplification thereof: (i) 5.16.3.1 Entering into any lease, license, concession or other agreement or permitting any sublease, license, concession or other agreement that provides for rent or other payment based in whole or in part on the income or profits of any person, excluding for this purpose a lease that provides for rent based in whole or in part on a fixed percentage or percentages of gross receipts or gross sales of any person without reduction for any costs of the lessee (and in the case of a sublease, without reduction for any sublessor costs); (ii) Leasing 5.16.3.2 Leasing, as a lessor, personal property, excluding for this purpose a lease of personal property that is entered into in connection with a lease of real property where the rent attributable to the personal property is less than 15% of the total rent provided for under the lease; (iii) 5.16.3.3 Acquiring or holding any debt investments, excluding for these purposes “"debt” " solely between wholly-owned Subsidiaries of the Company, unless (I) the amount of interest income received or accrued by the Company under such loan does not, directly or indirectly, depend in whole or in part on the income or profits of any person, or entering into any lending transaction unless the loan made by the Company meets an exception set forth in Section 856(m)(l) of the Code and (II) the debt is fully secured by mortgages on real property or on interests in real property. Notwithstanding anything to the contrary herein, in the case of debt issued to the Company by a Subsidiary which is treated as a "taxable REIT subsidiary" of the REIT Member, such debt shall be secured by a mortgage or similar security interest, or by a pledge of the equity ownership of a subsidiary of such taxable REIT subsidiary; (iv) 5.16.3.4 Acquiring or holding, directly or indirectly, more than 10% of the outstanding securities of any one issuer (by vote or value) other than an entity which either (i) is taxable as a partnership or a disregarded entity for United States federal income tax purposes, (ii) has properly elected to be a taxable REIT subsidiary of the REIT Member by jointly filing with REIT, IRS Form 8875, or (iii) has properly elected to be a real estate investment trust for U.S. federal income tax purposes; (v) 5.16.3.5 Entering into any agreement where the Company receives amounts, directly or indirectly, for rendering services to the tenants of any property that is owned, directly or indirectly, by the Company other than (i) amounts received for services that are customarily furnished or rendered in connection with the rental of real property of a similar class in the geographic areas in which the Property is located where such services are either provided by (A) an Independent Contractor (as defined in Section 856(d)(3) of the Code) who is adequately compensated for such services and from which the Company or REIT Member do not, directly or indirectly, derive revenue or (B) a taxable REIT subsidiary of REIT Member who is adequately compensated for such services or (ii) amounts received for services that are customarily furnished or rendered in connection with the rental of space for occupancy only (as opposed to being rendered primarily for the convenience of the Property’s 's tenants); (vi) 5.16.3.6 Entering into any agreement where a material amount of income received or accrued by the Company under such agreement, directly or indirectly, does not qualify as either (i) “"rents from real property” " or (ii) “"interest on obligations secured by mortgages on real property or on interests in real property,” " in each case as such terms are defined in Section 856(c) of the Code; (vii) 5.16.3.7 Holding cash of the Company available for operations or distribution in any manner other than a traditional bank checking or savings account or money market fundaccount; (viii) 5.16.3.8 Selling or disposing of any property, subsidiary or other asset of the Company prior to (i) the completion of a two (2) year holding period with such period to begin on the date the Company acquires a direct or indirect interest in such property and begins to hold such property, subsidiary or asset for the production of rental income, and (ii) the satisfaction of any other requirements under Section 857 of the Code necessary for the avoidance of a prohibited transaction tax on the REIT; provided, that such restriction shall not affect, restrict or be deemed to modify (i) either Member's right to exercise its buy- sell rights under Section 12.06; or (ii) Catalyst's rights pursuant to Section 6.05(c) or 12.09; or (ix) To the extent Operating Cash Flow is available, failing 5.16.3.9 Failing to make current cash distributions to REIT Member each year in an amount which does not at least equal the taxable income allocable to REIT Member for such year. (d) 5.16.4 Notwithstanding the foregoing provisions of this Section 6.45.16.3, the Company may enter into a REIT Prohibited Transaction if it receives the prior written approval of the REIT Member specifically acknowledging that the REIT Member is approving a REIT Prohibited Transaction pursuant to this Section 6.45.16.4. For purposes of this Section 6.45.16.4, “"REIT Prohibited Transactions” " shall mean any of the actions specifically set forth in Sections 6.4(c)(i5.16.3(1) through (c)(ix) as well as any action of which the Company receives timely, advance written notice from Investor or a REIT Member that such action would result in a REIT Member losing its REIT status under IRC Section 856 or would cause such REIT Member to be subject to any punitive taxation pursuant to IRC Section 857(b)(69). The Fxxxxxx Mac Loan shall not be considered a REIT Prohibited Transaction. No Manager or other Member shall be liable for a violation of Section 6.4(c) unless such violation is caused by its own willful misconduct or gross negligence.

Operation in Accordance with REOC/REIT Requirements. (a) The Members acknowledge that Investor BR Member or one or more of its Affiliates (a “BR Affiliate”) intends to qualify as a “real estate operating company” or “venture capital operating company” within the meaning of U.S. Department of Labor Regulation 29 C.F.R. §2510.3-101 (a “REOC”), and agree that the Company and its Subsidiaries shall be operated in a manner that will enable Investor BR Member and such BR Affiliate to so qualify. Notwithstanding anything herein to the contrary, the Company and its Subsidiaries shall not take, or refrain from taking, any action that Investor BR Member notifies the Company would result in Investor BR Member or a BR Affiliate from failing to qualify as a REOC. Except as disclosed to InvestorBR Member, the Hxxxxxxx and/or JHVG Member (ai) shall not fund any Capital Contribution "“with the '‘plan assets' ’ of any '‘employee benefit plan' ’ within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended or any '‘plan' ’ as defined by Section 4975 of the Internal Revenue Code of 1986, as amended"”, and (bii) shall comply with any requirements specified by Investor BR Member in order to ensure compliance with this Section 6.46.11. (b) Except for the Property and the Fxxxxxx Mac MONY Loan (and any refinance thereof), the Company shall not hold any investment, incur any indebtedness or otherwise take any action that would cause any Member of the Company (or any Person holding an indirect interest in the Company through an entity or series of entities treated as partnerships for U.S. federal income tax purposes) to realize any “unrelated business taxable income” as such term is defined in Code Sections 511 through 514, unless specifically agreed to by the Members in writing. No Manager or other Member shall be liable for any income or other taxes, damages, costs or expenses incurred by the Company or any Member by reason of the recognition by the Company of UBTI, unless caused by its own willful misconduct or gross negligence. (c) The Company may not engage in any activities or hold any assets that would constitute or result in the occurrence of a REIT Prohibited Transaction as defined herein. Notwithstanding anything to the contrary contained in this Agreement, during the time a REIT Member is a Member of the Company, neither the Company nor any Member of the Company shall take or refrain from taking any action which, or the effect of which, would constitute or result in the occurrence of a REIT Prohibited Transaction by the Company or any direct or indirect subsidiary thereof, including without limiting the generality of the foregoing, but in amplification thereof: (i) Entering into any lease, license, concession or other agreement or permitting any sublease, license, concession or other agreement that provides for rent or other payment based in whole or in part on the income or profits of any person, excluding for this purpose a lease that provides for rent based in whole or in part on a fixed percentage or percentages of gross receipts or gross sales of any person without reduction for any costs of the lessee (and in the case of a sublease, without reduction for any sublessor costs); (ii) Leasing Leasing, as a lessor, personal property, excluding for this purpose a lease of personal property that is entered into in connection with a lease of real property where the rent attributable to the personal property is less than 15% of the total rent provided for under the lease; (iii) Acquiring or holding any debt investments, excluding for these purposes “debt” solely between wholly-owned Subsidiaries of the Company, unless (I) the amount of interest income received or accrued by the Company under such loan does not, directly or indirectly, depend in whole or in part on the income or profits of any person, or entering into any lending transaction unless the loan made by the Company meets an exception set forth in Section 856(m)(l) of the Code and (II) the debt is fully secured by mortgages on real property or on interests in real property; (iv) Acquiring or holding, directly or indirectly, more than 10% of the outstanding securities of any one issuer (by vote or value) other than an entity which either (iA) is taxable as a partnership or a disregarded entity for United States federal income tax purposes, (iiB) has properly elected to be a taxable REIT subsidiary of the REIT Member by jointly filing with REIT, IRS Form 8875, or (iiiC) has properly elected to be a real estate investment trust for U.S. federal income tax purposes; (v) Entering into any agreement where the Company receives amounts, directly or indirectly, for rendering services to the tenants of any property that is owned, directly or indirectly, by the Company other than (iA) amounts received for services that are customarily furnished or rendered in connection with the rental of real property of a similar class in the geographic areas in which the Property is located where such services are either provided by (A1) an Independent Contractor (as defined in Section 856(d)(3) of the Code) who is adequately compensated for such services and from which the Company or REIT Member do not, directly or indirectly, derive revenue or (B2) a taxable REIT subsidiary of REIT Member who is adequately compensated for such services or (iiB) amounts received for services that are customarily furnished or rendered in connection with the rental of space for occupancy only (as opposed to being rendered primarily for the convenience of the Property’s tenants); (vi) Entering into any agreement where a material amount of income received or accrued by the Company under such agreement, directly or indirectly, does not qualify as either (iA) “rents from real property” or (iiB) “interest on obligations secured by mortgages on real property or on interests in real property,” in each case as such terms are defined in Section 856(c) of the Code; (vii) Holding cash of the Company available for operations or distribution in any manner other than a traditional bank checking or savings account or money market fund; (viii) Selling or disposing of any property, subsidiary or other asset of the Company prior to (iA) the completion of a two (2) year holding period with such period to begin on the date the Company acquires a direct or indirect interest in such property and begins to hold such property, subsidiary or asset for the production of rental income, and (iiB) the satisfaction of any other requirements under Section 857 of the Code necessary for the avoidance of a prohibited transaction tax on the REIT; or (ix) To the extent Operating Cash Flow is available, failing to make current cash distributions to REIT Member each year in an amount which does not at least equal the taxable income allocable to REIT Member for such year. (d) Notwithstanding the foregoing provisions of this Section 6.46.11, the Company may enter into a REIT Prohibited Transaction if it receives the prior written approval of the REIT Member specifically acknowledging that the REIT Member is approving a REIT Prohibited Transaction pursuant to this Section 6.46.11. For purposes of this Section 6.46.11, “REIT Prohibited Transactions” shall mean any of the actions specifically set forth in Sections 6.4(c)(i6.11(c)(i) through (c)(ix) as well as any action of which the Company receives timely, advance written notice from Investor BR Member or a REIT Member that such action would result in a REIT Member losing its REIT status under IRC Section 856 or would cause such REIT Member to be subject to any punitive taxation pursuant to IRC Section 857(b)(6). The Fxxxxxx Mac MONY Loan shall not be considered a REIT Prohibited Transaction. No Manager or other Member shall be liable for a violation of Section 6.4(c6.11(c) unless such violation is caused by its own willful misconduct or gross negligence.

Operation in Accordance with REOC/REIT Requirements. (a) The Members acknowledge that Investor or one or more Affiliates of its Affiliates the Members (a “BR Affiliate”) intends to qualify as a “real estate operating company” or “venture capital operating company” within the meaning of U.S. Department of Labor Regulation 29 C.F.R. §2510.3-101 (a “REOC”), and agree that the Company and its Subsidiaries shall be operated in a manner that will enable Investor and such each BR Affiliate to so qualify. Notwithstanding anything herein to the contrary, the Company and its Subsidiaries shall not take, or refrain from taking, any action that Investor notifies the Company would result in Investor or a BR Affiliate from failing to qualify as a REOC. Except as disclosed to Investor, Hxxxxxxx and/or JHVG (a) No Member shall not fund any Capital Contribution "with the '“plan assets' ” of any '“employee benefit plan' ” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended amended, or any '“plan' ” as defined by Section 4975 of the Internal Revenue Code of 1986, as amended", . The Members and (b) the Manager shall comply with any requirements specified by Investor a BR Affiliate in order to ensure compliance with this Section 6.49.4. (b) Except for Notwithstanding anything in this Agreement to the Property and contrary, unless specifically agreed to by the Fxxxxxx Mac Loan (and any refinance thereof)Manager in writing, neither the Company nor its Subsidiaries shall not hold any investment, incur any indebtedness or otherwise take any action that would cause any Member of the Company (or any Person holding an indirect interest in the Company through an entity or series of entities treated as partnerships for U.S. federal income tax purposes) to realize any “unrelated business taxable income” as such term is defined in Code Sections 511 through 514, unless specifically agreed to by the Members in writing514 (“UBTI”). No Manager or other Member shall be liable for any income or other taxes, damages, costs or expenses incurred by the Company or any Member by reason of the recognition by the Company of UBTI, unless caused by its own willful misconduct or gross negligencenegligence and not related to the Property. (c) The Company (and any direct or indirect Subsidiary of the Company) may not engage in any activities or hold any assets that would constitute or result in the occurrence of a REIT Prohibited Transaction (as defined hereinbelow). Notwithstanding anything to the contrary contained in this Agreement, during the time a REIT Member is a Member of the Company, neither the Company nor TIC-2, nor any direct or indirect Subsidiary of the Company or TIC-2, nor any Manager or Member of the Company Company, shall take or refrain from taking any action which, or the effect of which, would constitute or result in the occurrence of a REIT Prohibited Transaction by the Company or TIC-2 or any direct or indirect subsidiary Subsidiary thereof, including including, without limiting the generality of the foregoing, but in amplification thereof: (i) Entering into any lease, license, concession or other agreement or permitting any sublease, license, concession or other agreement that provides for rent or other payment based in whole or in part on the income or profits of any person, excluding for this purpose a lease that provides for rent based in whole or in part on a fixed percentage or percentages of gross receipts or gross sales of any person without reduction for any costs of the lessee (and in the case of a sublease, without reduction for any sublessor costs); (ii) Leasing Leasing, as a lessor, personal property, excluding for this purpose a lease of personal property that is entered into in connection with a lease of real property where the rent attributable to the personal property is less than 15% of the total rent provided for under the lease; (iii) Acquiring or holding any debt investments, excluding for these purposes “debt” solely between wholly-owned Subsidiaries of the Company, unless (I) the amount of interest income received or accrued by the Company under such loan does not, directly or indirectly, depend in whole or in part on the income or profits of any person, or entering into any lending transaction unless the loan made by the Company meets an exception set forth in Section 856(m)(l) of the Code and (II) the debt is fully secured by mortgages on real property or on interests in real property. Notwithstanding anything to the contrary herein, in the case of debt issued to the Company by a Subsidiary which is treated as a “taxable REIT subsidiary” of the REIT Member, such debt shall be secured by a mortgage or similar security interest, or by a pledge of the equity ownership of a subsidiary of such taxable REIT subsidiary; (iv) Acquiring or holding, directly or indirectly, more than 10% of the outstanding securities of any one issuer (by vote or value) other than an entity which either (i) is taxable as a partnership or a disregarded entity for United States federal income tax purposes, (ii) has properly elected to be a taxable REIT subsidiary of the REIT Member by jointly filing with the associated REIT, IRS Form 8875, or (iii) has properly elected to be a real estate investment trust for U.S. federal income tax purposes; (v) Entering into any agreement where the Company receives amounts, directly or indirectly, for rendering services to the tenants of any property that is owned, directly or indirectly, by the Company other than (i) amounts received for services that are customarily furnished or rendered in connection with the rental of real property of a similar class in the geographic areas in which the Property is located where such services are either provided by (A) an Independent Contractor (as defined in Section 856(d)(3) of the Code) who is adequately compensated for such services and from which the Company or REIT Member do not, directly or indirectly, derive revenue or (B) a taxable REIT subsidiary of REIT Member who is adequately compensated for such services or (ii) amounts received for services that are customarily furnished or rendered in connection with the rental of space for occupancy only (as opposed to being rendered primarily for the convenience of the Property’s tenants); (vi) Entering into any agreement where a material amount of income received or accrued by the Company under such agreement, directly or indirectly, does not qualify as either (i) “rents from real property” or (ii) “interest on obligations secured by mortgages on real property or on interests in real property,” in each case as such terms are defined in Section 856(c) of the Code; (vii) Holding cash of the Company available for operations or distribution in any manner other than a traditional bank checking or savings account or money market fundaccount; (viii) Selling or disposing of any property, subsidiary or other asset of the Company prior to (i) the completion of a two (2) year holding period with such period to begin on the date the Company acquires a direct or indirect interest in such property and begins to hold such property, subsidiary or asset for the production of rental income, and (ii) the satisfaction of any other requirements under Section 857 of the Code necessary for the avoidance of a prohibited transaction tax on the REIT; or (ix) To the extent Operating Cash Flow is available, failing Failing to make current cash distributions to REIT Member each year in an amount which does not at least equal the taxable income allocable to REIT Member for such year. (d) . Notwithstanding the foregoing provisions of this Section 6.49.4(c), the Company may enter into a REIT Prohibited Transaction if it receives the prior written approval of the REIT Member specifically acknowledging that the REIT Member is approving a REIT Prohibited Transaction pursuant to this Section 6.49.4(c). For purposes of this Section 6.49.4(c), “REIT Prohibited Transactions” shall mean any of the actions specifically set forth in Sections 6.4(c)(i) through (c)(ix) as well as any action of which the Company receives timely, advance written notice from Investor or a REIT Member that such action would result in a REIT Member losing its REIT status under IRC this Section 856 or would cause such REIT Member to be subject to any punitive taxation pursuant to IRC Section 857(b)(69.4(c). The Fxxxxxx Mac Loan shall not be considered a REIT Prohibited Transaction. No Manager or other Member shall be liable for a violation of Section 6.4(c) unless such violation is caused by its own willful misconduct or gross negligence.