EXCEPT AS
PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE, NO INDEMNIFIED PARTY MAY PAY OR
SETTLE ANY CLAIM AND SEEK REIMBURSEMENT THEREFOR UNDER THIS SECTION.
(D)
THE PROVISIONS OF THIS SECTION 9 SHALL SURVIVE THE EXPIRATION OR
EARLIER TERMINATION OF THIS AGREEMENT.
SECTION 10.
NO JOINT VENTURE.
THE TRUST, THE OPERATING PARTNERSHIP AND THE
MANAGER ARE NOT PARTNERS OR JOINT VENTURERS WITH EACH OTHER AND NOTHING HEREIN
SHALL BE CONSTRUED TO MAKE THEM SUCH PARTNERS OR JOINT VENTURERS OR IMPOSE ANY
LIABILITY AS SUCH ON ANY OF THEM.
SECTION 11.
TERM; TERMINATION.
(A)
INITIAL TERM.
THIS AGREEMENT SHALL BECOME EFFECTIVE ON THE
CLOSING DATE AND SHALL CONTINUE IN OPERATION, UNLESS TERMINATED IN ACCORDANCE
WITH THE TERMS HEREOF, UNTIL AUGUST 4, 2012 (THE "INITIAL TERM").
(B)
AUTOMATIC RENEWAL TERMS.
AFTER THE INITIAL TERM, THIS AGREEMENT
SHALL BE DEEMED RENEWED AUTOMATICALLY EACH YEAR FOR AN ADDITIONAL ONE-YEAR
PERIOD (AN "AUTOMATIC RENEWAL TERM") UNLESS THE TRUST OR THE MANAGER TERMINATES
THIS AGREEMENT IN ACCORDANCE WITH SECTION 11(C) OF THIS AGREEMENT.
(C)
TERMINATION OF THIS AGREEMENT.
NOTWITHSTANDING ANY OTHER
PROVISION OF THIS AGREEMENT TO THE CONTRARY, UPON THE EXPIRATION OF THE INITIAL
TERM OR ANY AUTOMATIC RENEWAL TERM AND UPON AT LEAST 180 DAYS' PRIOR WRITTEN
NOTICE TO THE MANAGER OR THE TRUST, AS APPLICABLE (THE "TERMINATION NOTICE"),
EITHER (A) THE TRUST (WITHOUT CAUSE), UPON THE AFFIRMATIVE VOTE OF AT LEAST
TWO-THIRDS OF THE INDEPENDENT TRUSTEES OR BY A VOTE OF THE HOLDERS OF AT LEAST
TWO-THIRDS OF THE TRUST'S OUTSTANDING COMMON SHARES (OTHER THAN THOSE COMMON
SHARES HELD BY THE MANAGER OR ANY AFFILIATE THEREOF), IN EACH CASE BASED UPON
(1) UNSATISFACTORY PERFORMANCE BY THE
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MANAGER THAT IS MATERIALLY DETRIMENTAL TO THE TRUST AND THE SUBSIDIARIES OR
(2) THE DETERMINATION THAT THE COMPENSATION PAYABLE TO THE MANAGER UNDER THIS
AGREEMENT IS NOT FAIR; OR (B) THE MANAGER (WITHOUT CAUSE) MAY, IN CONNECTION
WITH THE EXPIRATION OF THE INITIAL TERM OR ANY AUTOMATIC RENEWAL TERM, DECLINE
TO RENEW THIS AGREEMENT (ANY SUCH NONRENEWAL, A "NONRENEWAL TERMINATION");
PROVIDED, THAT THE TRUST SHALL NOT HAVE THE RIGHT TO TERMINATE THIS AGREEMENT
UNDER CLAUSE (2) ABOVE IF THE MANAGER AGREES TO CONTINUE TO PROVIDE SERVICES
UNDER THIS AGREEMENT AT FEES THAT AT LEAST TWO-THIRDS OF THE INDEPENDENT
TRUSTEES DETERMINE TO BE FAIR PURSUANT TO THE PROCEDURES SET FORTH BELOW.
IF THE TRUST (BUT NOT THE MANAGER) ISSUES THE TERMINATION NOTICE, THE OPERATING
PARTNERSHIP SHALL BE OBLIGATED TO PAY THE MANAGER THE TERMINATION FEE WITHIN 90
DAYS OF THE LAST DAY OF THE INITIAL TERM OR AUTOMATIC RENEWAL TERM, AS
APPLICABLE (THE "EFFECTIVE TERMINATION DATE"); PROVIDED, HOWEVER, THAT IN THE
EVENT A TERMINATION NOTICE IS GIVEN IN CONNECTION WITH A DETERMINATION THAT THE
COMPENSATION PAYABLE TO THE MANAGER IS NOT FAIR, THE MANAGER SHALL HAVE THE
RIGHT TO RENEGOTIATE SUCH COMPENSATION BY DELIVERING TO THE TRUST AND THE
OPERATING PARTNERSHIP, NO FEWER THAN 45 DAYS PRIOR TO THE PROSPECTIVE EFFECTIVE
TERMINATION DATE, WRITTEN NOTICE (ANY SUCH NOTICE, A "NOTICE OF PROPOSAL TO
NEGOTIATE") OF ITS INTENTION TO