Common use of Subordinated Performance Fee Due Upon Termination Clause in Contracts

Subordinated Performance Fee Due Upon Termination. Upon termination, unless such termination is by the Company because of a material breach of this Advisory Agreement by the Advisor as a result of willful or intentional misconduct or bad faith on behalf of the Advisor, the Advisor shall be entitled to receive from the Company the Subordinated Performance Fee Due Upon Termination payable in the form of an interest bearing promissory note bearing interest at a rate of LIBOR plus 200 basis points (the “Performance Fee Note”). The Company shall repay the Performance Fee Note at such time as the Company completes the first Sale or refinancing of a Property held at the Termination Date using Cash from Sales or Cash from Financings in an amount equal to the value such Property contributed to the Performance Fee Note. If such amount is insufficient to pay the Performance Fee Note in full, then the Performance Fee Note shall be paid in part from the Cash from Sales from the first Sale or Cash from Financings from the first refinancing of a Property held at the Termination Date, and in part from the Cash from Sales from each successive Sale or Cash from Financings from each successive refinancing of Properties held at the Termination Date in an amount equal to the value such Properties contributed to the Performance Fee Note until the Performance Fee Note is repaid in full. If the Performance Fee Note has not been paid in full on the earlier of (a) the date the Common Stock is Listed, or (b) within three (3) years from the Termination Date, then the holder of the Performance Fee Note, its successors or assigns, may elect to convert the balance of the fee into Common Stock at a price per share equal to the average closing price of the shares of Common Stock over the ten (10) trading days immediately preceding the date of such election if the Common Stock is Listed at such time. If the Common Stock is not Listed within three (3) years from the Termination Date, the holder of the Performance Fee Note, its successors or assigns, may elect to convert the balance of the fee into shares of Common Stock at a price per share equal to the fair market value for such Shares as determined by the Board of Directors based upon the Appraised Value of the Properties, loans, and other investments, net of any debt thereon, on the date of election.

Subordinated Performance Fee Due Upon Termination. Upon termination, unless such termination is by the Company because of a material breach of this Advisory Agreement by the Advisor as a result of willful or intentional misconduct or bad faith on behalf of the Advisor, the Advisor shall be entitled to receive from the Company the Subordinated Performance Fee Due Upon Termination payable in the form of an a non-interest bearing promissory note bearing interest at a rate of LIBOR plus 200 basis points (the “Performance Fee Note”). The Company shall repay the Performance Fee Note at such time as the Company completes the first Sale or refinancing of a Property held at the Termination Date using Cash from Sales or Cash from Financings in an amount equal to the value such Property contributed to the Performance Fee Note. If such amount is insufficient to pay the Performance Fee Note in full, then the Performance Fee Note shall be paid in part from the Cash from Sales from the first Sale or Cash from Financings from the first refinancing of a Property held at the Termination Date, and in part from the Cash from Sales from each successive Sale or Cash from Financings from each successive refinancing of Properties held at the Termination Date in an amount equal to the value such Properties contributed to the Performance Fee Note until the Performance Fee Note is repaid in full. If the Performance Fee Note has not been paid in full on the earlier of (a) the date the Common Stock is Listed, or (b) within three (3) years from the Termination Date, then the holder of the Performance Fee Note, its successors or assigns, may elect to convert the balance of the fee into Common Stock at a price per share equal to the average closing price of the shares of Common Stock over the ten (10) trading days immediately preceding the date of such election if the Common Stock is Listed at such time. If the Common Stock is not Listed within three (3) years from the Termination Date, the holder of the Performance Fee Note, its successors or assigns, may elect to convert the balance of the fee into shares of Common Stock at a price per share equal to the fair market value for such Shares as determined by the Board of Directors based upon the Appraised Value of the Properties, loans, and other investments, net of any debt thereon, on the date of election.