Common use of Performance Goals Clause in Contracts

Performance Goals. (i) The Restricted Shares shall vest on the applicable Vesting Date on a year by year basis provided one of the following financial tests ("Financial Tests") is met for the measurement period ending on the last day of the Company's fiscal year immediately preceding such Vesting Date: (A) the Company achieves an eight percent (8%) funds from operations per common share ("FFO") increase, or (B) shareholders receive a twelve and three quarters percent (12.75%) total return (dividends, assuming reinvestment upon applicable payment date, plus stock appreciation per share of Common Stock). For purposes of this Agreement, FFO shall mean (i) net income (loss) before minority interest of unit holders, computed in accordance with generally accepted accounting principles ("GAAP"), excluding the effect of straight lining of rents, gains (or losses) from debt restructuring, other extraordinary and significant non-recurring items, and gains (or losses) on sale of property and other property-related valuation allowances, plus real estate related depreciation and amortization, as calculated in accordance with the National Association of Real Estate Investment Trusts definition published in March 1995 after adjustment for straight lining of rents and as applied in accordance with the accounting practices and policies of the Company in effect from time to time on a consistent basis to the entire Vesting Period, divided by (ii) the sum of (A) the diluted weighted average number of outstanding shares of Common Stock and (B) the diluted weighted average number of outstanding common limited partnership units of Xxxx-Xxxx Realty, L.P., a Delaware limited partnership of which the Company is the sole general partner, for the applicable period with such calculations being made all before the effect on FFO and diluted common shares/common limited partnership units resulting from certain non-recurring cash payments made pursuant to certain written employment agreements and from the vesting of restricted share awards and other similar plans or compensation arrangements for the applicable period. (ii) In the event that neither of the Financial Tests above is satisfied for the fiscal year of the Company corresponding to the applicable Vesting Date ("Non-Achievement Year"), any Restricted Shares that failed to vest under the annual performance goal criteria on such Date may vest on such Date or on a subsequent Vesting Date provided the test described below is satisfied (the "Cumulative Test"). The Cumulative Test shall be applied at the end of the Non-Achievement Year or any subsequent fiscal year ("Catch-Up Year") with respect to any Non-Achievement Year provided a Financial Test was satisfied in a prior fiscal year or is satisfied in a Catch-Up Year, by applying the aggregate Financial Test percentages and the performance goal requirement on a cumulative basis beginning with the first fiscal year of the Vesting Period and ending with the Non-Achievement Year or the Catch-Up Year, as applicable. In the event the Cumulative Test is satisfied (i.e., the

Performance Goals. (i) The A total of 11,111 Restricted Shares shall vest on the applicable each Vesting Date on a year by year basis provided one of the following financial tests ("Financial Tests") is met for the measurement period ending on the last day of the Company's fiscal year immediately preceding such Vesting Date: (A) the Company achieves an eight percent (8%) funds from operations per common share ("FFO") increase, or (B) shareholders receive a twelve and three quarters fifteen percent (12.7515%) total return (dividends, assuming reinvestment upon applicable payment date, dividends plus stock appreciation per share of Common Stock). For purposes of this Agreement, FFO shall mean (i) net income (loss) before minority interest of unit holders, computed in accordance with generally accepted accounting principles ("GAAP"), excluding the effect of straight lining of rents, gains (or losses) from debt restructuring, other extraordinary restructuring and significant non-recurring items, and gains (or losses) on sale of property and other property-related valuation allowances, plus real estate related return, depreciation and amortization, amortization as calculated in accordance with the National Association of Real Estate Investment Trusts definition published in March 1995 after adjustment for straight lining of rents 1995, as amended from time to time, and as applied in accordance with the accounting practices and policies of the Company in effect from time to time on a consistent basis to the entire Vesting Period, divided by (ii) the sum of (A) the diluted primary weighted average number of outstanding shares of Common Stock as it appears in the Company's financial statement for the applicable period and (B) the diluted primary weighted average number of outstanding common limited partnership units of Xxxx-Xxxx Cali Realty, L.P., a Delaware limited partnership of which the Company is the sole general partner, for the applicable period with such calculations being made all before the effect on FFO and diluted common shares/common limited partnership units resulting from certain non-recurring cash payments made pursuant to certain written employment agreements and from the vesting of restricted share awards and other similar plans or compensation arrangements for the applicable period. (ii) In the event that neither of the Financial Tests above is satisfied for in the fiscal year of the Company corresponding to measurement period ending on the applicable Vesting Date ("Non-Achievement Year"), any Restricted Shares that failed to vest under the annual performance goal criteria on such Date may vest on such Date or on a subsequent Vesting Date provided the test described below is satisfied (the "Cumulative Test"). The Cumulative Test shall be applied at the end of the Non-Achievement Year or any subsequent fiscal year measurement period ("Catch-Up Year") with respect to any prior Non-Achievement Year provided both of the following conditions are satisfied: (I) a Financial Test was satisfied in a prior fiscal year or is satisfied in a the Catch-Up Year, by applying the aggregate Year without respect to any prior period and (II) a Financial Test percentages and is satisfied in the performance goal requirement Catch-Up Year on a cumulative basis beginning with the first fiscal year of measurement period occurring within the Vesting Period and ending with the Catch-Up Year. In the event that both of the conditions in the immediately preceding sentence are satisfied, the Restricted Shares that failed to vest in the Non-Achievement Year shall automatically vest on the Vesting Date applicable to the Catch-Up Year. For example, if vesting occurred in years one (1) and two (2), year three (3) is a Non-Achievement Year, and one of the Financial Tests is met in year four (4), the Cumulative Test may be used. Vesting in that portion of the Restricted Stock Award scheduled to vest in year three (3) will occur in year four (4) if either the aggregate FFO is thirty-two percent (32%) or the aggregate total return is sixty percent (60%) at the end of the fourth (4th) fiscal year. Rules for Application of the Cumulative Test: (a) it is not necessary for the Catch-Up Year to immediately succeed the Non-Achievement Year in order for the Cumulative Test to be applicable as long as the Catch-Up Year occurs during the Vesting Period and (b) it is not necessary for the same Financial Test to be satisfied in the Catch-Up Year, as applicablefirst on an independent and then on a cumulative basis, in order for conditions (l) and (ll) above to be satisfied. In the event Notwithstanding any contrary provisions contained in this Section 2(c), any Restricted Shares that have not been earned and vested by January 21, 2004 pursuant to the Cumulative Test is satisfied (i.e., theshall automatically be canceled and forfeited.

Performance Goals. (i) The A total of 1,852 Restricted Shares shall vest on the applicable each Vesting Date on a year by year basis provided one of the following financial tests ("Financial Tests") is met for the measurement period ending on the last day of the Company's fiscal year immediately preceding such Vesting Date: (A) the Company achieves an eight percent (8%) funds from operations per common share ("FFO") increase, or (B) shareholders receive a twelve and three quarters fifteen percent (12.7515%) total return (dividends, assuming reinvestment upon applicable payment date, dividends plus stock appreciation per share of Common Stock). For purposes of this Agreement, FFO shall mean (i) net income (loss) before minority interest of unit holders, computed in accordance with generally accepted accounting principles ("GAAP"), excluding the effect of straight lining of rents, gains (or losses) from debt restructuring, other extraordinary restructuring and significant non-recurring items, and gains (or losses) on sale of property and other property-related valuation allowances, plus real estate related return, depreciation and amortization, amortization as calculated in accordance with the National Association of Real Estate Investment Trusts definition published in March 1995 after adjustment for straight lining of rents 1995, as amended from time to time, and as applied in accordance with the accounting practices and policies of the Company in effect from time to time on a consistent basis to the entire Vesting Period, divided by (ii) the sum of (A) the diluted primary weighted average number of outstanding shares of Common Stock as it appears in the Company's financial statement for the applicable period and (B) the diluted primary weighted average number of outstanding common limited partnership units of Xxxx-Xxxx Cali Realty, L.P., a Delaware limited partnership of which the Company is the sole general partner, for the applicable period with such calculations being made all before the effect on FFO and diluted common shares/common limited partnership units resulting from certain non-recurring cash payments made pursuant to certain written employment agreements and from the vesting of restricted share awards and other similar plans or compensation arrangements for the applicable period. (ii) In the event that neither of the Financial Tests above is satisfied for in the fiscal year of the Company corresponding to measurement period ending on the applicable Vesting Date ("Non-Achievement Year"), any Restricted Shares that failed to vest under the annual performance goal criteria on such Date may vest on such Date or on a subsequent Vesting Date provided the test described below is satisfied (the "Cumulative Test"). The Cumulative Test shall be applied at the end of the Non-Achievement Year or any subsequent fiscal year measurement period ("Catch-Up Year") with respect to any prior Non-Achievement Year provided both of the following conditions are satisfied: (I) a Financial Test was satisfied in a prior fiscal year or is satisfied in a the Catch-Up Year, by applying the aggregate Year without respect to any prior period and (II) a Financial Test percentages and is satisfied in the performance goal requirement Catch-Up Year on a cumulative basis beginning with the first fiscal year of measurement period occurring within the Vesting Period and ending with the Catch-Up Year. In the event that both of the conditions in the immediately preceding sentence are satisfied, the Restricted Shares that failed to vest in the Non-Achievement Year shall automatically vest on the Vesting Date applicable to the Catch-Up Year. For example, if vesting occurred in years one (1) and two (2), year three (3) is a Non-Achievement Year, and one of the Financial Tests is met in year four (4), the Cumulative Test may be used. Vesting in that portion of the Restricted Stock Award scheduled to vest in year three (3) will occur in year four (4) if either the aggregate FFO is thirty-two percent (32%) or the aggregate total return is sixty percent (60%) at the end of the fourth (4th) fiscal year. Rules for Application of the Cumulative Test: (a) it is not necessary for the Catch-Up Year to immediately succeed the Non-Achievement Year in order for the Cumulative Test to be applicable as long as the Catch-Up Year occurs during the Vesting Period and (b) it is not necessary for the same Financial Test to be satisfied in the Catch-Up Year, as applicablefirst on an independent and then on a cumulative basis, in order for conditions (I) and (II) above to be satisfied. In the event Notwithstanding any contrary provisions contained in this Section 2(c), any Restricted Shares that have not been earned and vested by January 21, 2004 pursuant to the Cumulative Test is satisfied (i.e., theshall automatically be canceled and forfeited.

Performance Goals. (i) The Restricted Shares shall vest on the applicable Vesting Date on a year by year basis provided one of the following financial tests ("Financial Tests") is met for the measurement period ending on the last day of the Company's fiscal year immediately preceding such Vesting Date: (A) the Company achieves an eight percent (8%) funds from operations per common share ("FFO") increase, or (B) shareholders receive a twelve and three quarters percent (12.75%) total return (dividends, assuming reinvestment upon applicable payment date, plus stock appreciation per share of Common Stock). For purposes of this Agreement, FFO shall mean (i) net income (loss) before minority interest of unit holders, computed in accordance with generally accepted accounting principles ("GAAP"), excluding the effect of straight lining of rents, gains (or losses) from debt restructuring, other extraordinary and significant non-recurring items, and gains (or losses) on sale of property and other property-related valuation allowances, plus real estate related depreciation and amortization, as calculated in accordance with the National Association of Real Estate Investment Trusts definition published in March 1995 after adjustment for straight lining of rents and as applied in accordance with the accounting practices and policies of the Company in effect from time to time on a consistent basis to the entire Vesting Period, divided by (ii) the sum of (A) the diluted weighted average number of outstanding shares of Common Stock and (B) the diluted weighted average number of outstanding common limited partnership units of Xxxx-Xxxx Realty, L.P., a Delaware limited partnership of which the Company is the sole general partner, for the applicable period with such calculations being made all before the effect on FFO and diluted common shares/common limited partnership units resulting from certain non-recurring cash payments made pursuant to certain written employment agreements and from the vesting of restricted share awards and other similar plans or compensation arrangements for the applicable period. (ii) In the event that neither of the Financial Tests above is satisfied for the fiscal year of the Company corresponding to the applicable Vesting Date ("Non-Achievement Year"), any Restricted Shares that failed to vest under the annual performance goal criteria on such Date may vest on such Date or on a subsequent Vesting Date provided the test described below is satisfied (the "Cumulative Test"). The Cumulative Test shall be applied at the end of the Non-Achievement Year or any subsequent fiscal year ("Catch-Up Year") with respect to any Non-Achievement Year provided PROVIDED a Financial Test was satisfied in a prior fiscal year or is satisfied in a Catch-Up Year, by applying the aggregate Financial Test percentages and the performance goal requirement on a cumulative basis beginning with the first fiscal year of the Vesting Period and ending ENDING with the Non-Achievement Year or the Catch-Up Year, as applicable. In the event the Cumulative Test is satisfied (i.e.I.E., thethe aggregate increase in FFO or aggregate total return is not less than the minimum percentage required to satisfy the Financial Test after taking into account the applicable Non-Achievement Year), the Restricted Shares that failed to vest in the Non-Achievement Year shall automatically vest on the Vesting Date applicable to the Non-Achievement Year or the Catch-Up Year, as the case may be. For example, if vesting occurred in years one (1) and two (2), year three (3) is a Non-Achievement Year, and the Cumulative Test is met for the Non-Achievement Year (I.E., either the aggregate increase in FFO is not less than twenty-four (24%) percent or the aggregate total return is not less than thirty-eight and one-quarter (38.25%) percent) vesting would occur on the Vesting Date applicable to the Non-Achievement Year. In the event the Cumulative Test is not met in the Non-Achievement Year (year (3)) and one of the Financial Tests is met in year four (4), the Cumulative Test may be used in year four (4). Under this scenario, vesting in that portion of the Restricted Stock Award scheduled to vest in year three (3) will occur in year four (4) if either the aggregate increase in FFO is not less than thirty-two percent (32%) or the aggregate total return is not less than fifty-one percent (51%) at the end of the fourth (4th) fiscal year. RULES FOR APPLICATION OF THE CUMULATIVE TEST: (a) the Cumulative Test will be applied first at the end of any Non-Achievement Year, (b) it is not necessary for any Catch-Up Year to immediately succeed a Non-Achievement Year in order for the Cumulative Test to be applicable as long as the Catch-Up Year occurs during the Vesting Period, (c) if two (2) or more Non-Achievement Years have occurred during the Vesting Period and Restricted Shares that failed to vest in the Non-Achievement Years remain non-vested, then in the event that the Cumulative Test is met on a partial basis so that at least one (1) full year's vesting may occur, the Restricted Share Award granted with respect to the last Non-Achievement Year that has occurred, shall vest first and any excess shall be credited to another Non-Achievement Year and (d) the Cumulative Test may be met on a partial basis by aggregating percentages in excess of the minimum annual requirement from more than one (1) fiscal year in the Vesting Period. For example, if vesting occurred in year one (1) and the FFO is sixteen (16%) percent, years two (2) and three (3) are Non-Achievement Years with a loss in year two (2) of two (2%) percent and year three (3) the FFO is four (4%) percent, the Restricted Shares awarded with respect to year three (3) would vest under the Cumulative Test and two (2%) percent of the remaining FFO would be available to be used in year two (2) or any other year (E.G., in the event that FFO were fourteen (14%) percent in year four (4), the Restricted Shares applicable to year two (2) would also vest. In the alternative, if FFO were six (6%) percent in year four (4), year four (4) would vest and year two (2) would remain a Non-Achievement Year). Notwithstanding any contrary provisions contained in this Section 2(c) and subject to Section 4 below, any Restricted Shares that have not been earned and vested by January 1, 2004 on a year by year basis or by January 1, 2006 pursuant to the Cumulative Test shall automatically be canceled and forfeited.

Performance Goals. (i) The A total of 1,481 Restricted Shares shall vest on the applicable each Vesting Date on a year by year basis provided one of the following financial tests ("Financial Tests") is met for the measurement period ending on the last day of the Company's fiscal year immediately preceding such Vesting Date: (A) the Company achieves an eight percent (8%) funds from operations per common share ("FFO") increase, or (B) shareholders receive a twelve and three quarters fifteen percent (12.7515%) total return (dividends, assuming reinvestment upon applicable payment date, dividends plus stock appreciation per share of Common Stock). For purposes of this Agreement, FFO shall mean (i) net income (loss) before minority interest of unit holders, computed in accordance with generally accepted accounting principles ("GAAP"), excluding the effect of straight lining of rents, gains (or losses) from debt restructuring, other extraordinary restructuring and significant non-recurring items, and gains (or losses) on sale of property and other property-related valuation allowances, plus real estate related return, depreciation and amortization, amortization as calculated in accordance with the National Association of Real Estate Investment Trusts definition published in March 1995 after adjustment for straight lining of rents 1995, as amended from time to time, and as applied in accordance with the accounting practices and policies of the Company in effect from time to time on a consistent basis to the entire Vesting Period, divided by (ii) the sum of (A) the diluted primary weighted average number of outstanding shares of Common Stock as it appears in the Company's financial statement for the applicable period and (B) the diluted primary weighted average number of outstanding common limited partnership units of Xxxx-Xxxx Cali Realty, L.P., a Delaware limited partnership of which the Company is the sole general partner, for the applicable period with such calculations being made all before the effect on FFO and diluted common shares/common limited partnership units resulting from certain non-recurring cash payments made pursuant to certain written employment agreements and from the vesting of restricted share awards and other similar plans or compensation arrangements for the applicable period. (ii) In the event that neither of the Financial Tests above is satisfied for in the fiscal year of the Company corresponding to measurement period ending on the applicable Vesting Date ("Non-Achievement Year"), any Restricted Shares that failed to vest under the annual performance goal criteria on such Date may vest on such Date or on a subsequent Vesting Date provided the test described below is satisfied (the "Cumulative Test"). The Cumulative Test shall be applied at the end of the Non-Achievement Year or any subsequent fiscal year measurement period ("Catch-Up Year") with respect to any prior Non-Achievement Year provided both of the following conditions are satisfied: (I) a Financial Test was satisfied in a prior fiscal year or is satisfied in a the Catch-Up Year, by applying the aggregate Year without respect to any prior period and (II) a Financial Test percentages and is satisfied in the performance goal requirement Catch-Up Year on a cumulative basis beginning with the first fiscal year of measurement period occurring within the Vesting Period and ending with the Catch-Up Year. In the event that both of the conditions in the immediately preceding sentence are satisfied, the Restricted Shares that failed to vest in the Non-Achievement Year shall automatically vest on the Vesting Date applicable to the Catch-Up Year. For example, if vesting occurred in years one (1) and two (2), year three (3) is a Non-Achievement Year, and one of the Financial Tests is met in year four (4), the Cumulative Test may be used. Vesting in that portion of the Restricted Stock Award scheduled to vest in year three (3) will occur in year four (4) if either the aggregate FFO is thirty-two percent (32%) or the aggregate total return is sixty percent (60%) at the end of the fourth (4th) fiscal year. Rules for Application of the Cumulative Test: (a) it is not necessary for the Catch-Up Year to immediately succeed the Non-Achievement Year in order for the Cumulative Test to be applicable as long as the Catch-Up Year occurs during the Vesting Period and (b) it is not necessary for the same Financial Test to be satisfied in the Catch-Up Year, as applicablefirst on an independent and then on a cumulative basis, in order for conditions (I) and (II) above to be satisfied. In the event Notwithstanding any contrary provisions contained in this Section 2(c), any Restricted Shares that have not been earned and vested by January 21, 2004 pursuant to the Cumulative Test is satisfied (i.e., theshall automatically be canceled and forfeited.

Performance Goals. (i) The A total of 1,296 Restricted Shares shall vest on the applicable each Vesting Date on a year by year basis provided one of the following financial tests ("Financial Tests") is met for the measurement period ending on the last day of the Company's fiscal year immediately preceding such Vesting Date: (A) the Company achieves an eight percent (8%) funds from operations per common share ("FFO") increase, or (B) shareholders receive a twelve and three quarters fifteen percent (12.7515%) total return (dividends, assuming reinvestment upon applicable payment date, dividends plus stock appreciation per share of Common Stock). For purposes of this Agreement, FFO shall mean (i) net income (loss) before minority interest of unit holders, computed in accordance with generally accepted accounting principles ("GAAP"), excluding the effect of straight lining of rents, gains (or losses) from debt restructuring, other extraordinary restructuring and significant non-recurring items, and gains (or losses) on sale of property and other property-related valuation allowances, plus real estate related return, depreciation and amortization, amortization as calculated in accordance with the National Association of Real Estate Investment Trusts definition published in March 1995 after adjustment for straight lining of rents 1995, as amended from time to time, and as applied in accordance with the accounting practices and policies of the Company in effect from time to time on a consistent basis to the entire Vesting Period, divided by (ii) the sum of (A) the diluted primary weighted average number of outstanding shares of Common Stock as it appears in the Company's financial statement for the applicable period and (B) the diluted primary weighted average number of outstanding common limited partnership units of Xxxx-Xxxx Cali Realty, L.P., a Delaware limited partnership of which the Company is the sole general partner, for the applicable period with such calculations being made all before the effect on FFO and diluted common shares/common limited partnership units resulting from certain non-recurring cash payments made pursuant to certain written employment agreements and from the vesting of restricted share awards and other similar plans or compensation arrangements for the applicable period. (ii) In the event that neither of the Financial Tests above is satisfied for in the fiscal year of the Company corresponding to measurement period ending on the applicable Vesting Date ("Non-Achievement Year"), any Restricted Shares that failed to vest under the annual performance goal criteria on such Date may vest on such Date or on a subsequent Vesting Date provided the test described below is satisfied (the "Cumulative Test"). The Cumulative Test shall be applied at the end of the Non-Achievement Year or any subsequent fiscal year measurement period ("Catch-Up Year") with respect to any prior Non-Achievement Year provided both of the following conditions are satisfied: (I) a Financial Test was satisfied in a prior fiscal year or is satisfied in a the Catch-Up Year, by applying the aggregate Year without respect to any prior period and (II) a Financial Test percentages and is satisfied in the performance goal requirement Catch-Up Year on a cumulative basis beginning with the first fiscal year of measurement period occurring within the Vesting Period and ending with the Catch-Up Year. In the event that both of the conditions in the immediately preceding sentence are satisfied, the Restricted Shares that failed to vest in the Non-Achievement Year shall automatically vest on the Vesting Date applicable to the Catch-Up Year. For example, if vesting occurred in years one (1) and two (2), year three (3) is a Non-Achievement Year, and one of the Financial Tests is met in year four (4), the Cumulative Test may be used. Vesting in that portion of the Restricted Stock Award scheduled to vest in year three (3) will occur in year four (4) if either the aggregate FFO is thirty-two percent (32%) or the aggregate total return is sixty percent (60%) at the end of the fourth (4th) fiscal year. Rules for Application of the Cumulative Test: (a) it is not necessary for the Catch-Up Year to immediately succeed the Non-Achievement Year in order for the Cumulative Test to be applicable as long as the Catch-Up Year occurs during the Vesting Period and (b) it is not necessary for the same Financial Test to be satisfied in the Catch-Up Year, as applicablefirst on an independent and then on a cumulative basis, in order for conditions (I) and (II) above to be satisfied. In the event Notwithstanding any contrary provisions contained in this Section 2(c), any Restricted Shares that have not been earned and vested by January 21, 2004 pursuant to the Cumulative Test is satisfied (i.e., theshall automatically be canceled and forfeited.

Performance Goals. (i) The Restricted Shares shall vest on the applicable Vesting Date on a year by year basis provided one of the following financial tests ("Financial Tests") is met for the measurement period ending on the last day of the Company's fiscal year immediately preceding such Vesting Date: (A) the Company achieves an eight percent (8%) funds from operations per common share ("FFO") increase, or (B) shareholders receive a twelve and three quarters percent (12.75%) total return (dividends, assuming reinvestment upon applicable payment date, plus stock appreciation per share of Common Stock). For purposes of this Agreement, FFO shall mean (i) net income (loss) before minority interest of unit holders, computed in accordance with generally accepted accounting principles ("GAAP"), excluding the effect of straight lining of rents, gains (or losses) from debt restructuring, other extraordinary and significant non-recurring items, and gains (or losses) on sale of property and other property-related valuation allowances, plus real estate related depreciation and amortization, as calculated in accordance with the National Association of Real Estate Investment Trusts definition published in March 1995 after adjustment for straight lining of rents and as applied in accordance with the accounting practices and policies of the Company in effect from time to time on a consistent basis to the entire Vesting Period, divided by (ii) the sum of (A) the diluted weighted average number of outstanding shares of Common Stock and (B) the diluted weighted average number of outstanding common limited partnership units of Xxxx-Xxxx Realty, L.P., a Delaware limited partnership of which the Company is the sole general partnerpartner (the "Partnership"), for the applicable period with such calculations being made all before the effect on FFO and diluted common shares/common limited partnership units resulting from certain non-recurring cash payments made pursuant to certain written employment agreements and from the vesting of restricted share awards and other similar plans or compensation arrangements for the applicable period. (ii) In the event that neither of the Financial Tests above is satisfied for the fiscal year of the Company corresponding to the applicable Vesting Date ("Non-Achievement Year"), any Restricted Shares that failed to vest under the annual performance goal criteria on such Date may vest on such Date or on a subsequent Vesting Date provided the test described below is satisfied (the "Cumulative Test"). The Cumulative Test shall be applied at the end of the Non-Achievement Year or any subsequent fiscal year ("Catch-Up Year") with respect to any Non-Achievement Year provided a Financial Test was satisfied in a prior fiscal year or is satisfied in a Catch-Up Year, by applying the aggregate Financial Test percentages and the performance goal requirement on a cumulative basis beginning with the first fiscal year of the Vesting Period and ending with the Non-Achievement Year or the Catch-Up Year, as applicable. In the event the Cumulative Test is satisfied (i.e., thethe aggregate increase in FFO or aggregate total return is not less than the minimum percentage required to satisfy the Financial Test after taking into account the applicable Non-Achievement Year), the Restricted Shares that failed to vest in the Non-Achievement Year shall automatically vest on the Vesting Date applicable to the Non-Achievement Year or the Catch-Up Year, as the case may be. For example, if vesting occurred in years one (1) and two (2), year three (3) is a Non-Achievement Year, and the Cumulative Test is met for the Non-Achievement Year (i.e., either FFO is not less than twenty-four (24%) percent or the aggregate return is not less than thirty-eight and one-quarter (38.25%) percent) vesting would occur on the Vesting Date applicable to the Non-Achievement Year. In the event the Cumulative Test is not met in the Non-Achievement Year, one of the Financial Tests is met in year four (4), the Cumulative Test may be used. Under this scenario, vesting in that portion of the Restricted Stock Award scheduled to vest in year three (3) will occur in year four (4) if either the aggregate FFO is not less than thirty-two percent (32%) or the aggregate total return is not less than fifty-one percent (51%) at the end of the fourth (4th) fiscal year.