**Exhibit10.27**EMPLOYMENT AGREEMENT OF ANDREA BILLER**          THIS EMPLOYMENT AGREEMENT (this “Agreement”) is dated as of October 23, 2006between NNN Realty Advisors, Inc., a Delaware corporation, having its principal place of businessat 1551 North Tustin Boulevard, Suite 200, Santa Ana, California 92705 (the “Company”), andAndrea Biller, Esq., an individual residing at the address set forth below the individual’s name onthe signature page hereof (the “Executive”).          The Company and the Executive enter this Agreement on the basis of the following facts,understandings and intentions:          A. The Executive desires to become employed by the Company and the Company desires to assureitself of the services of Executive;          B. The Company intends to complete a financing transaction involving the offering and sale ofshares of the Company’s common stock (the “Financing”) in a manner exempt from theregistration requirements of the Securities Act of 1933, as amended (the “Securities Act”);and          C. The Company and the Executive desire to provide for the terms and conditions of theExecutive’s employment by the Company commencing on the completion of the Financing.          NOW, THEREFORE, in consideration of the mutual covenants contained herein, the Company and theExecutive agree as follows:     1. Employment.          (a) Subject to subsection (b), the Company hereby agrees to employ the Executive, and theExecutive hereby agrees to be employed by the Company, on the terms and conditions set forthherein, commencing as of the date of completion of the Financing. The date of the completion ofthe Financing is referred to herein as the “Effective Date.”          (b) In the event that the Financing is not completed on or before December 31, 2006, thisAgreement and any and all of the rights, obligations and liabilities of the parties thereundershall terminate and be null and void.     2. Term.          (a) The employment of the Executive by the Company as provided in Section 1 above shallcommence on the Effective Date, and shall terminate on the third anniversary of the Effective Date(such term being the “Original Term”), unless earlier terminated pursuant to the provisionsof Section 5 of this Agreement.          (b) On the final day of the Original Term and on each anniversary thereafter (each an“Extension Date”), the term of this Agreement shall be extended automatically one year,such extension to commence on the Extension Date and terminate one year after the Extension Date(each such period being a “Renewal Term”), unless written notice that the term
 

 
of thisAgreement shall not be so extended is given by either party to the other at least one year prior tothe Extension Date. The employment of the Executive by the Company shall terminate upon theexpiration of the last Renewal Term, unless earlier terminated pursuant to the provisions ofSection 5 of this Agreement.          (c) The Original Term and any Renewal Terms, in their full duration, are herein referred to as“Employment Terms,” and the period of the Executive’s employment under this Agreementconsisting of the Original Term and all Renewal Terms, except as may be terminated early pursuantto Section 5, is herein referred to as the “Employment Period.”     3. Position.          (a) Title and Position. During the Employment Period, the Executive shall be employedas an executive officer of the Company with the title of General Counsel, Executive Vice Presidentand Secretary or in such other executive position as the Board of Directors of the Company (the“Board”) may from time to time determine with the consent of the Executive. In theperformance of the Executive’s duties as an executive officer, the Executive shall be subject tothe direction of the Board and the Chief Executive Officer of the Company and shall not be requiredto take direction from or report to any other person unless otherwise directed by the Board or theChief Executive Officer of the Company. The Executive’s duties and authority shall be commensuratewith the Executive’s title and position with the Company.          (b) Place of Employment. During the Employment Period, the Executive shall performthe services required by this Agreement at the Company’s principal place of business in Santa Ana,California; provided, however, that the Company may require the Executive to travelto other locations on the Company’s business.          (c) Duties; Authority. The Executive shall devote commercially reasonable efforts andsubstantially full working time and attention to the promotion and advancement of the Company andits welfare. The Executive shall serve the Company faithfully and to the best of the Executive’sability, and shall perform such services and duties in connection with the business, affairs andoperations of the Company as may be assigned or delegated to the Executive from time to time by theBoard or under, and in accordance with, the authority and direction of the Board. The Companyshall retain the right to direct and control the means and methods by which the Executive performsthe above services. The Company shall provide the Executive with all necessary authority andresources to discharge the Executive’s responsibilities under the Federal securities laws, statesecurities laws, the rules of the NASD, related authorities and industry standards of conduct(together, the “Industry Rules”), including, but not limited to, the authority to implementpolicies and procedures reasonably designed to achieve compliance with Industry Rules.          (d) Other Activities. Except with the prior written approval of the Board (which theBoard may grant or withhold in its sole and absolute discretion), and, except as may be set forthin Section 11 of this Agreement, the Executive, during the Employment Period, shall not (i) acceptany other employment, or (ii) engage, directly or indirectly, in any other business activity(whether or not pursued for pecuniary advantage) that is or may be competitive with, or that mightplace the Executive in a competing position to, that of the Company or any of its
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affiliates.Notwithstanding the foregoing, the Company agrees that the Executive (or affiliates of theExecutive) shall be permitted to undertake the activities set forth in Section 11, and to make anyother passive personal investment that is not in a business activity competitive with the Company.     4. Compensation and Related Matters.          (a) Base Salary. During the Employment Period, the Company shall pay the Executive abase salary at an annual rate of four hundred thousand dollars ($400,000). The Executive’s annualrate of base salary may be increased from time to time during the Employment Period by an amountdetermined by the Board, or the Compensation Committee of the Board (the “CompensationCommittee”). During the Employment Period, the Executive’s annual rate of base salary shallnot be decreased without the Executive’s express written consent. The Executive’s base salaryshall be paid according to the standard payroll practices of the Company, and in accordance withapplicable laws (e.g., timing of payments, standard employee deductions, tax withholdings, socialsecurity deductions, and etc.) as in effect from time to time.          (b) Business Expenses. During the Employment Period, the Company shall reimburse theExecutive for personal expenditures incurred in connection with the conduct of the Company’sbusiness in accordance with the Company’s business expense reimbursement policies as in effect fromtime to time.          (c) Benefit Plan Eligibility.               (i) During the Employment Period, the Executive shall be entitled to participate in anybenefit plans that are made generally available to executive officers of the Company from time totime, including, without limitation, any deferred compensation, health, dental, life insurance,long-term disability insurance, retirement, pension or 401(k) savings plan.               (ii) The Company shall pay 100% of the premium cost of the Company’s health insurance coverageprovided to the Executive (and the Executive’s dependents, if applicable) by the Company from timeto time.               (iii) Except for the payment of the premium cost as provided in paragraph (ii), nothing inthis Section 4(c) is intended or shall be construed to require the Company to institute or tocontinue any, or any particular, plan or benefit.          (d) Performance Bonus.               (i) Bonus Program. The Board, or the Compensation Committee, may, in its sole andabsolute discretion, establish and maintain a performance bonus program for the Executive toprovide for payment of a cash and/or non-cash bonus to the Executive. The Board, or theCompensation Committee, shall determine, in its sole and absolute discretion, the terms andconditions of any such bonus program, subject to paragraph (ii).               (ii) Target Bonus. For each fiscal year of the Company commencing during theEmployment Period, the Executive’s target bonus (the “Target Bonus”) shall equal 150% ofthe Executive’s annual rate of base salary, as in effect as of the first day of such fiscal
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year.The Executive’s Target Bonus may be increased from time to time by the Board, or the CompensationCommittee, in its sole and absolute discretion. During the Employment Period, the Executive’sTarget Bonus shall not be decreased without the Executive’s express written consent.          (e) Equity Awards. The Company shall grant the following equity awards to theExecutive, as of the Effective Date.               (i) Stock Option Award. The Company shall grant to the Executive a non-qualifiedstock option (the “Option”) representing the right to purchase forty thousand (40,000)shares of common stock, par value $0.01 per share, of the Company (“Company Common Stock”).The Option shall be exercisable at a per share exercise price equal to the fair market value of ashare of Company Common Stock as of the Effective Date, as determined by the Board or theCompensation Committee. The Option shall vest and become exercisable, on a cumulative basis, atthe rate of one-third (1/3) of the number of shares of Company Common Stock subject to the Optionon each of the Effective Date and the first and second anniversaries of the Effective Date, subjectto the continued employment of the Executive by the Company. The Option shall expire ten (10)years after the grant of the Option and shall terminate earlier in the event of the termination ofthe Executive’s employment with the Company. The Option shall be transferable by the Executive tocertain of the Executive’s family members, or a trust for such family members, subject to the termsand conditions of the Company’s stock incentive plan. The Option shall be subject to the terms andconditions of the Company’s stock incentive plan, the applicable option agreement and thisAgreement.               (ii) Restricted Stock Award. The Company shall grant to the Executive a restrictedstock award (the “Restricted Stock Award”) representing the right to receive one hundredthirty thousand (130,000) shares of Company Common Stock. The shares of the Company Common Stocksubject to the Restricted Stock Award shall be issued without purchase price and in considerationof past service by the Executive to the Company and its subsidiaries (the value of which has beendetermined by the Board, or the Compensation Committee, to be in excess of the par value of suchshares of Company Common Stock) and shall be subject to forfeiture in the event of the terminationof the Executive’s employment with the Company and shall be subject to transfer and otherrestrictions. The shares of Company Common Stock subject to the Restricted Stock Award shall vestand cease to be subject to forfeiture at the rate of one third (1/3) of the number of shares ofCompany Common Stock subject to the Restricted Stock Award on each of January 1, 2007, January 1,2008, and January 1, 2009, subject to the continued employment of the Executive by the Company.Such shares of Company Common Stock shall be subject to the restrictions, vesting and forfeitureprovisionsand the other terms and conditions of the Company’s stock incentive plan, the applicablerestricted stock agreement and this Agreement.           (f) Membership Interests in Management Entities.               (i) The Executive has received a grant of a full membership share of the NNN ApartmentManagement, LLC (“NNN Apartment Management”), in the amount of eighteen percent (18%) ofthe total membership shares of NNN Apartment Management,
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determined as of the grant date, as setforth in the Operating Agreement of NNN Apartment Management pursuant to the terms thereof.               (ii) The Executive has received a grant of a full membership share of the NNNHealthcare/Office Management, LLC (“NNN Healthcare/Office Management”), in the amount offifteen percent (15%) of the total membership shares of NNN Healthcare/Office Management,determined as of the grant date, as set forth in the Operating Agreement of NNN Healthcare/OfficeManagement pursuant to the terms thereof.               (iii) The Executive will receive a grant of a full membership share of NNN InstitutionalAdvisors, LLC, the advisor for the NNN Institutional Real Estate Fund, LP, determined as of thegrant date, as set forth in the Operating Agreement of NNN Institutional Advisors, LLC pursuant tothe terms thereof. The membership share will be equal to the membership share granted to the otherprincipals in NNN Institutional Advisors, LLC.          (g) Fringe Benefits. During the Employment Period, the Executive shall be entitled tosuch fringe benefits as may be determined or granted by the Board, or the Compensation Committee,in its sole and absolute discretion.          (h) Vacation and Holidays. During the Employment Period, the Executive shall beentitled to four (4) weeks ((20) business days) of paid vacation time in each calendar year on apro-rated basis, and shall be entitled to all paid Company holidays, subject to the Company’svacation and holiday policies, as in effect from time to time.          (i) Directors and Officers Insurance and Indemnification. The Company shall maintaininsurance to insure the Executive against claims arising out of an alleged wrongful act by theExecutive while acting as a director or officer of the Company or one of its subsidiaries. TheCompany shall further indemnify and exculpate the Executive from money damages incurred as a resultof claims arising out of an alleged wrongful act by the Executive while acting as an officer,director or employee of the Company, or one of its subsidiaries, to the fullest extent permittedunder applicable law.          (j) Performance Reviews. At the end of each fiscal year of the Company, the Board, orthe Compensation Committee, shall review the Executive’s job performance and shall provide theExecutive a written review of the Executive’s job performance during such fiscal year.     5. Termination. The Executive’s employment hereunder shall be, or may be, as the casemay be, terminated under the following circumstances:          (a) Death. The Executive’s employment under this Agreement shall terminate upon theExecutive’s death.          (b) Disability. The Executive’s employment under this Agreement shall terminate uponthe Executive’s physical or mental disability which, in the opinion of a competent physicianselected by the Board, renders the Executive unable to perform the Executive’s duties under thisAgreement for more than one hundred and eighty (180) days during any three hundred and sixty-five(365) day period. Notwithstanding anything expressed or
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implied above to the contrary, the Companyagrees to fully comply with its obligations under the Americans with Disabilities Act as well asany other applicable federal, state, or local law, regulation, or ordinance governing theprotection of individuals with such disabilities, including the Company’s obligation to providereasonable accommodation thereunder.          (c) Employment-At-Will; Discharge by the Company. The Executive’s employmenthereunder is “at will” and may be terminated by the Company at any time with or without Cause (asdefined in Section 7(d)(iii) below), by the Board upon written Notice of Termination (as definedbelow) to the Executive.          (d) Voluntary Resignation by the Executive. The Executive may voluntarily resign theExecutive’s position and terminate the Executive’s employment with the Company at any time bydelivery of a written notice of resignation to the Company (the “Notice of Resignation”).The Notice of Resignation shall set forth the date such resignation shall become effective (the“Date of Resignation”), which date shall be at least ten (10) days and no more than thirty(30) days after the date the Notice of Resignation is delivered to the Company. The Notice ofResignation shall be sufficient notice under Section 2 above to prevent the automatic extension ofthis Agreement, if timely given according to the terms of Section 2.          (e) Notice. Any termination of the Executive’s employment by the Company shall becommunicated by written Notice of Termination to the Executive. For purposes of this Agreement, a“Notice of Termination” or a “Notice of Resignation” shall mean a notice thatindicates the specific termination provision in this Agreement relied upon and sets forth inreasonable detail the facts and circumstances claimed to provide a basis for termination of theExecutive’s employment under the provision so indicated. The Notice of Termination shall besufficient notice under Section 2 above to prevent the automatic extension of this Agreement, iftimely given according to the terms of Section 2.          (f) Date of Termination. “Date of Termination” shall mean: (i) theexpiration of the Employment Terms, (ii) if the Executive’s employment is terminated by theExecutive’s death, the date of the Executive’s death; (iii) if the Executive’s employment isterminated by reason of the Executive’s disability, the date of the opinion of the physicianreferred to in Section 5(b), above; (iv) if the Executive’s employment is terminated by the Companyfor Cause or without Cause by the Company pursuant to Section 5(c) above, the date specified in theNotice of Termination; and (v) if the Executive voluntarily resigns pursuant to Section 5(d) above,the Date of Resignation set forth in the Notice of Resignation.     6. Obligations upon Termination.          (a) Return of Property. The Executive hereby acknowledges and agrees that allpersonal property (including, without limitation, any documents, files and electronic information)and equipment furnished to or prepared by the Executive in the course of or incident to theExecutive’s employment belongs to the Company and shall be promptly returned to the Company on orbefore the Date of Termination.          (b) Complete Resignation. Upon the expiration of the Employment Terms or anytermination of employment under Section 5 above, the Executive shall resign, effective upon
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theDate of Termination, from all offices and directorships then held with the Company or any of itssubsidiaries and affiliates.          (c) Survival of Representations, Warranties, Covenants and Other Provisions. Therepresentations and warranties contained in this Agreement and the parties’ obligations under thisSection 6 and Sections 7 through 24, inclusively, shall survive termination of the EmploymentPeriod and the expiration of this Agreement.     7. Compensation upon Termination. Subject to Section 8, the Executive shall beentitled to the following payments in the event of the termination of the Executive’s employmentwith the Company:          (a) Expiration of Employment Terms.               (i) Payments upon Expiration. If the Executive’s employment is terminated upon theexpiration of the Employment Terms, the Company shall pay to the Executive (A) any accrued, unpaidbase salary payable under Section 4(a) as in effect on the Date of Termination, (B) anyunreimbursed business expenses under Section 4(b), and (C) the Prorated Performance Bonus.               (ii) Prorated Performance Bonus. For purposes of Section 7(a)(i) and Sections 7(b)and 7(c), the “Prorated Performance Bonus” shall be determined as follows: (A) forpurposes of 7(a)(i), the performance bonus (if any) that otherwise would have been payable to theExecutive in respect of the fiscal year of the Company in which the Date of Termination occurs, asreasonably determined by the Company under the Company’s performance bonus program for theExecutive, had the Executive continued in employment with the Company through the last day of suchfiscal year, and for purposes of Sections 7(b) and 7(c), the maximum Target Bonus with respect tothe fiscal year of the Company in which the Date of Termination occurs, multiplied by (B) afraction, the numerator of which is the number of full calendar months in such fiscal year duringwhich the Executive was employed by the Company, and the denominator of which is the number of fullcalendar months in such fiscal year.               (iii) Payment Date. The Prorated Performance Bonus under Section 7(a)(i), or Section7(b) or 7(c), as applicable, shall be paid not later than sixty (60) days after the Date ofTermination occurs (subject to Section 9), provided that the Executive (or, in the event ofthe Executive’s death, the Executive’s legal representative) executes and delivers to theCompany, and any applicable revocation period required by law has lapsed and the Executive (or theExecutive’s legal representative) has not revoked, a general release of claims in a form acceptableto the Company in its sole and absolute discretion, and the Executive is not in material breach ofany of the provisions of this Agreement. The Company shall provide Executive (or the Executive’slegal representative) with a general release of claims in a form acceptable to the Company notlater than one week following the Date of Termination.          (b) Death. If the Executive’s employment is terminated by reason of death pursuant toSection 5(a), the Company shall pay to the Executive’s estate (i) any accrued, unpaid base salarypayable under Section 4(a) as in effect on the Date of Termination, (ii) any unreimbursed businessexpenses under Section 4(b), and (iii) the Prorated Performance Bonus.
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          (c) Disability. If the Executive’s employment is terminated by reason of disabilitypursuant to Section 5(b), the Company shall pay to the Executive (i) any accrued, unpaid basesalary payable under Section 4(a) as in effect on the Date of Termination, (ii) any unreimbursedbusiness expenses under Section 4(b), and (iii) the Prorated Performance Bonus.          (d) Termination by the Company.               (i) For Cause. If the Executive’s employment is terminated by the Company pursuant toSection 5(c) for Cause (as defined below), the Company shall pay to the Executive: (A) anyaccrued, unpaid base salary payable under Section 4(a) as in effect on the Date of Termination, and(B) any unreimbursed expenses under Section 4(b).               (ii) Without Cause. If the Executive’s employment is terminated by the Companypursuant to Section 5(c) without Cause, the Company shall pay to the Executive: (A) any accrued,unpaid base salary payable under Section 4(a) as in effect on the Date of Termination, (B) anyunreimbursed business expenses under Section 4(b), and (C) a severance benefit, in a lump sum cashpayment, in the amount of: (I) the Executive’s annual rate of base salary, as in effect as of theDate of Termination, plus the Executive’s Target Bonus for the fiscal year of the Company in whichthe Date of Termination occurs, multiplied by (II) the Severance Benefit Factor determined underparagraph (iv). The severance benefit under subparagraph (C) shall be paid not later than sixty(60) days after the Date of Termination (subject to Section 9), provided that the Executiveexecutes and delivers to the Company, and any applicable revocation period required by law haslapsed and the Executive has not revoked, a general release of claims in a form acceptable to theCompany in its sole and absolute discretion, and the Executive is not in material breach of any ofthe provisions of this Agreement. The Company shall provide Executive with a general release ofclaims in a form acceptable to the Company not later than one week following the Date ofTermination.               (iii) “Cause” means a finding by the Board that: (A) the Executive materiallybreached any of the material terms of this Agreement or any confidentiality or proprietaryinformation and inventions agreement with the Company; (B) the Executive acted with grossnegligence, willful misconduct or fraudulently in the performance of the Executive’s dutieshereunder; or (C) the Executive has been convicted of, or has entered a plea of guilty or nolocontendere to, a felony. In the case of an event described in clause (A), such event shall notconstitute “Cause” if such event is substantially corrected within thirty (30) days followingwritten notification by the Company to the Executive that the Company intends to terminate theExecutive’s employment under this Agreement because of such event. Notwithstanding the foregoing,“Cause” shall not include situations where Executive, in exercise of the Executive’s professionaljudgment regarding the Industry Rules, and in consultation with outside counsel competent in theIndustry Rules, such counsel to be mutually agreed upon by the Executive and the Company, refusesthe instruction of or is in disagreement with the Board about matters of the Company’s compliancewith Industry Rules.               (iv) For purposes of Sections 7(d)(ii) and 7(e)(i), the “Severance Benefit Factor”shall be determined as follows: (A) in the event the Date of Termination occurs during theOriginal Term, the “Severance Benefit Factor” shall equal the greater of: (I) one, and (II) thenumber of full calendar months from the Date of Termination to the last day ofthe
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Original Term,divided by twelve (12), and (B) in the event the Date of Termination occurs during a Renewal Term,the “Severance Benefit Factor” shall equal one.          (e) Voluntary Resignation.               (i) For Good Reason. If the Executive terminates the Executive’s employment with theCompany pursuant to Section 5(d) for Good Reason (as defined below), the Company shall pay to theExecutive: (A) any accrued, unpaid base salary payable under Section 4(a) as in effect on the Dateof Termination, (B) any unreimbursed business expenses under Section 4(b) and (C) a severancebenefit, in a lump sum cash payment, in the amount of: (I) the Executive’s annual rate of basesalary, as in effect as of the Date of Termination, plus the Executive’s Target Bonus for thefiscal year of the Company in which the Date of Termination occurs, multiplied by (II) theSeverance Benefit Factor determined under Section 7(d)(iv). The severance benefit undersubparagraph (C) shall be paid not later than sixty (60) days after the Date of Termination(subject to Section 9), provided that the Executive executes and delivers to the Company, and anyapplicable revocation period required by law has run and Executive has not revoked, a generalrelease of claims in a form acceptable to the Company in its sole and absolute discretion, andExecutive is not in material breach of any of the provisions of this Agreement. The Company shallprovide Executive with a general release of claims in a form acceptable to the Company not laterthan one week following the Date of Termination.               (ii) Without Good Reason. If the Executive terminates the Executive’s employment withthe Company pursuant to Section 5(d) without Good Reason, the Company shall pay to the Executive:(A) any accrued, unpaid base salary payable under Section 4(a) as in effect on the Date ofTermination, and (B) any unreimbursed business expenses under Section 4(b).               (iii) “Good Reason” means the occurrence, without the express written consent of theExecutive, of any of the following events, unless such event is substantially corrected withinthirty (30) days following written notification by the Executive to the Company that the Executiveintends to terminate the Executive’s employment under this Agreement because of such event:               (A) any material reduction or diminution in the compensation, benefits orresponsibilities of the Executive;               (B) any material breach or material default by the Company under any material provisionof this Agreement;               (C) any material diminution in the Executive’s position or responsibilities for theCompany;               (D) any relocation of the Company’s principal place of business to a location that ismore than 35 miles from such principal place of business; or               (E) when the Executive, in the exercise of the Executive’s professional judgmentregarding the Industry Rules, believes that the Board or other control persons have failedto adequately respond to issues raised by the Executive
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regarding compliance with theIndustry Rules or similar standards applicable to the Company and its subsidiaries.          (f) Accelerated Vesting of Options and Restricted Stock. In the event the Executiveis entitled to the severance benefits pursuant to Section 7(d)(ii)(C) or 7(e)(i)(C), the Option andeach other stock option exercisable for shares of Company Common Stock granted under the Company’sstock incentive plan that is held by the Executive, if then outstanding, shall become immediatelyvested and exercisable with respect to all of the shares of Company Common Stock subject thereto onthe Date of Termination and shall be exercisable in accordance with the provisions of the Company’sstock incentive plan and option agreement pursuant to which such option was granted. In addition,in the event the Executive is entitled to severance benefits pursuant to Section 7(d)(ii)(C) or7(e)(i)(C), the Restricted Stock Award and each other restricted share of the Company Common Stockgranted under the Company’s stock incentive plan that is held by the Executive that is subject to aforfeiture, reacquisition or repurchase option held by the Company shall become fully vested,nonforfeitable and no longer subject to reacquisition or repurchase by the Company or otherrestrictions on the Date of Termination.          (g) Compliance with Obligations. The continuing obligation of the Company to make anyProrated Performance Bonus payment under Section 7(a)(i), or Section 7(b) or 7(c), or severancepayment under Section 7(d)(ii)(C) or 7(e)(i)(C), to the Executive is expressly conditioned upon theExecutive complying and continuing to comply with the Executive’s obligations and covenants underSections 3(d), 6, 10 and 11 of this Agreement following the termination of the Executive’semployment with the Company.     8. Compensation upon Termination in connection with a Change in Control.          (a) Payments upon Termination. If Executive’s employment with the Company isterminated by the Company (other than upon the expiration of the Employment Terms, for Cause, or byreason of Disability, or upon Executive’s death) at any time within ninety (90) days before, orwithin twelve (12) months after, a Change in Control (as defined below), or if the Executive’semployment with the Company is terminated by the Executive for Good Reason within twelve (12)months after a Change in Control, or if the Executive’semployment with the Company is terminated by the Executive without Good Reason during theperiod commencing six (6) months after a Change in Control and ending twelve (12) months after aChange in Control, then the Company shall pay to the Executive: (i) any accrued, unpaid basesalary payable under Section 4(a) as in effect on the Date of Termination, (ii) any unreimbursedbusiness expenses under Section 4(b), and (iii) a severance benefit, in a lump sum cash payment, inan amount equal to: (A) the Executive’s annual rate of base salary, as in effect as of the Date ofTermination, plus the Executive’s Target Bonus for the fiscal year of the Company in which the Dateof Termination occurs, multiplied by (B) three. The severance benefit under paragraph (iii) shallbe paid not later than sixty (60) days after the Date of Termination (subject to Section 9),provided that the Executive executes and delivers to the Company, and any revocation periodrequired by law has lapsed and the Executive has not revoked, a general release of claims in a formacceptable to the Company in its sole and absolute discretion, and the Executive is not in materialbreach of any of the provisions of this Agreement.
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The Company shall provide Executive with ageneral release of claims in a form acceptable to the Company not later than one week following theDate of Termination.          (b) Health Insurance Coverage. In the event the Executive is entitled to theseverance benefit pursuant to Section 8(a)(iii), then in addition to such severance benefit, theExecutive shall receive 100% Company-paid health insurance coverage as provided to the Executive(and the Executive’s dependents, if applicable) immediately prior to the Executive’s termination ofemployment (the “Company-Paid Coverage”). Company-Paid Coverage shall continue for two (2)years following termination of employment or until the Executive becomes covered under anotheremployer’s group health insurance plan, whichever occurs first.          (c) Accelerated Vesting of Options and Restricted Stock. In the event the Executiveis entitled to the severance benefits pursuant to Section 8(a)(iii), the Option and each otherstock option exercisable for shares of Company Common Stock granted under the Company’s stockincentive plan that is held by the Executive, if then outstanding, shall become immediately vestedand exercisable with respect to all of the shares of Company Common Stock subject thereto on theDate of Termination and shall be exercisable in accordance with the provisions of the Company’sstock incentive plan and option agreement pursuant to which such option was granted. In addition,in the event the Executive is entitled to severance benefits pursuant to Section 8(a)(iii), theRestricted Stock Award and each other restricted share of the Company Common Stock granted underthe Company’s stock incentive plan that is held by the Executive that is subject to a forfeiture,reacquisition or repurchase option held by the Company shall become fully vested, nonforfeitableand no longer subject to reacquisition or repurchase by the Company or other restrictions on theDate of Termination.          (d) No Duplication of Payments. Any payment and benefits under this Section 8 shallbe in lieu of any payments and benefits under Section 7, and the Executive shall have no furtherright to compensation and benefits under Section 7 of this Agreement.          (e) “Change in Control” means the occurrence of any of the following events occurringafter the Effective Date:          (i) the liquidation or dissolution of the Company;          (ii) following an initial public offering of the Company Common Stock, a Person (asdefined below) directly or indirectly becomes the “beneficial owner” (as such term isdefined in Rule 13d-3 and Rule 13d-5 under the Securities Exchange Act of 1934) of more thanthirty-five percent (35%) of the total voting power of the total outstanding votingsecurities of the Company on a fully diluted basis;          (iii) a Person directly or indirectly acquires all or substantially all of the assetsand business of the Company;          (iv) for any reason during any period of two (2) consecutive years (not including anyperiod prior to the Effective Date) a majority of the Board is constituted by individualsother than (1) individuals who were directors immediately prior to the beginning of suchperiod, and (2) new directors whose election or appointment by the Board or nomination forelection by the Company’s stockholders was approved by a vote
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of at least two-thirds (2/3)of the directors then still in office who either were directors immediately prior to thebeginning of the period or whose election or nomination for election was previously soapproved; or          (v) the consummation by the Company (whether directly involving the Company orindirectly involving the Company through one or more intermediaries) of (x) a merger,consolidation, reorganization, or business combination or (y) the acquisition of assets orstock of another entity, in each case, other than a transaction which results in theCompany’s voting securities outstanding immediately before the transaction continuing torepresent (either by remaining outstanding or by being converted into voting securities ofthe entity or the person that, as a result of the transaction, controls, directly orindirectly, the Company or owns, directly or indirectly, all or substantially all of theCompany’s assets or otherwise succeeds to the business of the Company (the Company or suchperson, the “Successor Entity”)) directly or indirectly, at least fifty percent(50%) of the combined voting power of the Successor Entity’s outstanding voting securitiesimmediately after the transaction.For purposes of this Section 8(e), neither the Financing nor the Company’s initial public offeringof the Company Common Stock registered under the Securities Act shall be a “Change in Control,” and“Person” means any natural person, corporation, or any other entity; provided,however, that the term “Person” shall not include any stockholder or employee ofthe Company on the date immediately prior to the initial public offering of the Company CommonStock or any estate or member of the immediate family of such a stockholder or employee.          (f) The continuing obligation of the Company to make any severance payment under Section8(a)(iii) to the Executive is expressly conditioned upon the Executive complying and continuing tocomply with the Executive’s obligations and covenants underSections 3(d), 6, 10 and 11 of this Agreement following the termination of the Executive’semployment with the Company.          (g) Parachute Payment Excise Tax Gross-Up.               (i) In the event that it shall be determined under this paragraph 8(g) that any payment orbenefit to the Executive or for the Executive’s benefit or on the Executive’s behalf (whether paidor payable or distributed or distributable) pursuant to the terms of this Agreement or any otheragreement, arrangement or plan with the Company or any Affiliate (as defined below) (individually,a “Payment” and collectively, the “Payments”) would be subject to the excise tax(the “Excise Tax”) imposed by Section 4999 of the Internal Revenue Code of 1986, as amended(the “Code”), then Executive shall be entitled to receive from the Company one or moreadditional payments (individually, a “Gross-Up Payment” and collectively, the “Gross-UpPayments”) in an aggregate amount such that the net amount of the Payments and the Gross-UpPayments retained by Executive after the payment of all Excise Taxes (and any interest or penaltiesimposed with respect to such Excise Taxes) on the Payments and all federal, state and local incometax, employment tax and Excise Taxes (including any interest or penalties imposed with respect tosuch taxes) on the Gross-Up Payments provided for in this Section 8(g), and taking into account anylost or reduced tax deductions on account of the Gross-Up Payments, shall be equal to the Payments.For purposes of this paragraph 8(g), an “Affiliate” shall mean
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any successor to all orsubstantially all of the business and/or assets of the Company or the Parent, any person acquiringownership or effective control of the Company or the Parent or ownership of a substantial portionof the assets of the Company or the Parent, or any person whose relationship to the Company, theParent or such person is such as to require attribution under Section 318(a) of the Code.               (ii) All determinations required to be made under this Section 8(g), including whether andwhen any Gross-Up Payment is required and the amount of such Gross-Up Payment, and the assumptionsto be utilized in arriving at such determinations shall be made by the Accountants (as definedbelow) which shall provide Executive and the Company with detailed supporting calculations withrespect to such Gross-Up Payment within fifteen (15) business days of the receipt of notice fromExecutive or the Company that Executive has received or will receive a Payment. For the purposesof this paragraph 8(g), the “Accountants” shall mean the Company’s independent certified publicaccountants serving immediately prior to the “change in the ownership or effective control of acorporation” or “change in the ownership of a substantial portion of the assets of a corporation”,as defined in Section 280G of the Code, with respect to which the determination is being made. Inthe event that the Accountants are also serving as the accountants or auditors for the individual,entity or group effecting the “change in the ownership or effective control of a corporation” or“change in the ownership of a substantial portion of the assets of a corporation”, as defined inSection 280G of the Code, with respect to which the determination is being made, Executive shallappoint another nationally recognized public accounting firm, reasonably acceptable to the Company,to make the determinations required hereunder (which accounting firm shall then be referred to asthe Accountants hereunder). All fees and expenses of the Accountants shall be borne solely by theCompany.               (iii) For the purposes of determining whether any of the Payments will be subject to theExcise Tax and the amount of such Excise Tax, such Payments shall be treatedas “parachute payments” within the meaning of Section 280G of the Code, and all “parachutepayments” in excess of the “base amount” (as defined under Section 280G(b)(3) of the Code) shall betreated as subject to the Excise Tax, unless and except to the extent that, in the opinion of theAccountants, such Payments (in whole or in part) either do not constitute “parachute payments” orrepresent reasonable compensation for services actually rendered (within the meaning of Section280G(b)(4) of the Code) in excess of the “base amount,” or such “parachute payments” are otherwisenot subject to such Excise Tax.               (iv) For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemedto pay federal income taxes at the highest applicable marginal rate of federal income taxation forthe calendar year in which the Gross-Up Payment is to be made and to pay any applicable state andlocal income taxes at the highest applicable marginal rate of taxation for the calendar year inwhich the Gross-Up Payment is to be made, net of the maximum reduction in Federal income taxeswhich could be obtained from the deduction of such state or local taxes if paid in such year(determined without regard to limitations on deductions based upon the amount of Executive’sadjusted gross income); and to have otherwise allowable deductions for federal, state and localincome tax purposes at least equal to those disallowed because of the inclusion of the Gross-UpPayment in Executive’s adjusted gross income. To the extent practicable, any Gross-Up Payment withrespect to any Payment shall be paid by the Company at the time Executive is entitled to receivethe Payment and in no event will any Gross-
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Up Payment be paid later than five days after thereceipt by Executive of the Accountant’s determination.               (v) Any determination by the Accountants shall be binding upon the Company and Executive. Asa result of uncertainty in the application of Section 4999 of the Code at the time of the initialdetermination by the Accountants hereunder, it is possible that the Gross-Up Payment made will havebeen an amount less than the Company should have paid pursuant to this Section 8(g) (the“Underpayment”). In the event that the Company exhausts its remedies pursuant to Section8(g) and Executive is required to make a payment of any Excise Tax, the Underpayment shall bepromptly paid by the Company to or for Executive’s benefit; and               (vi) Executive shall notify the Company in writing of any claim by the Internal RevenueService that, if successful, would require the payment by the Company of the Gross-Up Payment.Such notification shall be given as soon as practicable after Executive is informed in writing ofsuch claim and shall apprise the Company of the nature of such claim and the date on which suchclaim is requested to be paid. Executive shall not pay such claim prior to the expiration of the30-day period following the date on which Executive gives such notice to the Company (or suchshorter period ending on the date that any payment of taxes, interest and/or penalties with respectto such claim is due). If the Company notifies Executive in writing prior to the expiration ofsuch period that it desires to contest such claim, Executive shall: (A) give the Company anyinformation reasonably requested by the Company relating to such claim; (B) take such action inconnection with contesting such claim as the Company shall reasonably request in writing from timeto time, including, without limitation, accepting legal representation with respect to such claimby an attorney reasonably selected by the Company; (C) cooperate with the Company in good faith inorder to effectively contest such claim; and (D) permit the Company to participate in anyproceedings relating to such claims; provided, however, that theCompany shall bear and pay directly all costs and expenses (including additional interest andpenalties) incurred in connection with such contest and shall indemnify Executive for and holdExecutive harmless from, on an after-tax basis, any Excise Tax or income or other taxes (includinginterest and penalties with respect thereto) imposed as a result of such representation and paymentof all related costs and expenses.               (vii) Without limiting the foregoing provisions of this Section 8(g), the Company shallcontrol all proceedings taken in connection with such contest and, at its sole option, may pursueor forgo any and all administrative appeals, proceedings, hearings and conferences with the taxingauthority in respect of such claim and may, at its sole option, either direct Executive to pay thetax claimed and sue for a refund or contest the claim in any permissible manner, and Executiveagrees to prosecute such contest to a determination before any administrative tribunal, in a courtof initial jurisdiction and in one or more appellate courts, as the Company shall determine;provided, however, that if the Company directs Executive to pay such claim and sue for a refund,the Company shall indemnify Executive for and hold Executive harmless from, on an after-tax basis,any Excise Tax or income or other taxes (including interest or penalties with respect thereto)imposed with respect to such advance or with respect to any imputed income with respect to suchadvance (including as a result of any forgiveness by the Company of such advance); provided,further, that any extension of the statute of limitations relating to the payment of taxes for thetaxable year of Executive with respect to
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which such contested amount is claimed to be due islimited solely to such contested amount. Furthermore, the Company’s control of the contest shallbe limited to issues with respect to which a Gross-Up Payment would be payable hereunder andExecutive shall be entitled to settle or contest, as the case may be, any other issue raised by theInternal Revenue Service or any other taxing authority.               (viii) In any situation where under applicable law the Company has the power to indemnify (oradvance expenses to) Executive in respect of any judgments, fines, settlements, loss, cost orexpense (including attorneys’ fees) of any nature related to or arising out of Executive’sactivities as an agent, employee, officer or director of the Company or in any other capacity onbehalf of or at the request of the Company, the Company shall promptly on written request,indemnify (and advance expenses to) Executive to the fullest extent permitted by applicable law,including but not limited to making such findings and determinations and taking any and all suchactions as the Company may, under applicable law, be permitted to have the discretion to take so asto effectuate such indemnification or advancement. Such agreement by the Company shall not bedeemed to impair any other obligation of the Company respecting Executive’s indemnificationotherwise arising out of this or any other agreement or promise of the Company or under anystatute.               (ix) The payments provided for in Section 8(g) shall be made promptly following thetermination of Executive’s employment with the Company. The payments provided for in Section 8(g)shall be made not later than the tenth day following the date of which the General Release byExecutive becomes irrevocable (or, if later, the tenth day following the date on which the Changein Control occurs); provided, however, that if the amounts of such payments cannot be finallydetermined on or before such day, the Company shall pay to Executive on such day an estimate, asdetermined in good faith by the Company, of the minimum amount of such payments and shall pay theremainder of such payments (togetherwith interest at the rate provided in Section 1274(b)(2)(B) of the Code) as soon as the amountthereof can be determined but in no event later than the thirtieth day after the Date ofTermination. In the event that the amount of the estimated payments exceeds the amountsubsequently determined to have been due, such excess shall constitute a loan by the Company toExecutive, payable on the fifth day after demand by the Company (together with interest at the rateprovided in Section 1274(b)(2)(B) of the Code).               (x) Executive shall not be required to mitigate the amount of any payment provided for in thisSection 8(g) by seeking other employment or otherwise nor, except as provided in Section 8(g),shall the amount of any payment or benefit provided for in this Section 8 be reduced by anycompensation or benefits earned by Executive as the result of employment by another employer orself-employment, by retirement benefits, by offset against any amount claimed to be owed byExecutive to the Company, or otherwise.     9. Compliance with Section 409A of the Internal Revenue Code.           (a) Short-Term Deferral Exemption. This Agreement is not intended to provide for anydeferral of compensation subject to Section 409A of the Code and, accordingly, the benefitsprovided pursuant to this Agreement are intended to be paid not later than the later of: (i) thefifteenth day of the third month following the Executive’s first taxable year in which
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such benefitis no longer subject to a substantial risk of forfeiture, and (ii) the fifteenth day of the thirdmonth following the first taxable year of the Company in which such benefit is no longer subject toa substantial risk of forfeiture, as determined in accordance with Section 409A of the Code and anyTreasury Regulations and other guidance issued thereunder. The date determined under thissubsection is referred to as the “Short-Term Deferral Date.”          (b) Compliance with Code Section 409A. Notwithstanding anything to the contraryherein, in the event that any benefits provided pursuant to this Agreement are not actually orconstructively received by the Executive on or before the Short-Term Deferral Date, to the extentsuch benefit constitutes a deferral of compensation subject to Code Section 409A, then: (i)subject to clause (ii), such benefit shall be paid upon Executive’s separation from service, withrespect to the Company and its affiliates within the meaning of Section 409A of the Code, and (ii)if Executive is a “specified employee,” as defined in Section 409A(a)(2)(B)(i) of the Code, withrespect to the Company and its affiliates, such benefit shall be paid upon the date which is sixmonths after the date of Executive’s “separation from service” (or, if earlier, the date ofExecutive’s death). In the event that any benefit provided for in this Agreement is subject tothis subsection, such benefit shall be paid on the sixtieth day following the payment datedetermined under this subsection.          (c) Reformation to Comply with Code Section 409A. To the extent that this Agreementor any payment under this Agreement is subject to Section 409A of the Code, the parties intend thatthe provisions of this Agreement meet the applicable requirements of Sections 409A(a)(2), (3) and(4) of the Code and the transitional relief under Section 409A of the Code (including, withoutlimitation, the requirements of the transitional relief under A-19(c) of Internal Revenue ServiceNotice 2005-1 and the Proposed Regulations under Section 409A of the Code) and agree that, to theextent such applicable requirements are not met, this Agreement shall be reformed to comply withsuch requirements.     10. Covenant of Confidentiality; Non-Disparagement.          (a) In addition to the agreements set forth in Sections 3(d), 6 and 11, the Executive herebyagrees that the Executive will not, during the Employment Period or for three (3) years thereafterdirectly or indirectly disclose or make available to any person, firm, corporation, association orother entity for any reason or purpose whatsoever, any Confidential Information. As used in thisAgreement, “Confidential Information” means: non-public information disclosed to theExecutive or known by the Executive as a consequence of or through the Executive’s relationshipwith the Company, about the Company’s subsidiaries, affiliates and partners thereof, owners,customers, employees, business methods, public relations methods, organization, procedures orfinances, including, without limitation, information of or relating to properties that the Companyor any of its affiliates, subsidiaries or partners thereof owns or may be considering acquiring aninterest in; provided, however, that the Executive shall not be obligated to treatas confidential, or return to the Company copies of, any Confidential Information that (i) waspublicly known at the time of disclosure to the Executive, (ii) becomes publicly known or availablethereafter other than by any means in violation of this Agreement or any other duty owed to theCompany by any person or entity, or (iii) the Executive is required by law to disclose to a thirdparty.
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          (b) The Executive agrees to not disparage the Company, any of its subsidiaries, any of itspractices, or any of its directors, officers, agents, representatives, or employees, either orallyor in writing, at any time. The Company (including without limitation its directors) agrees to notdisparage the Executive, either orally or in writing, at any time. Notwithstanding the foregoing,nothing in this Section 10(b) shall limit the ability of the Company or the Executive, asapplicable, to provide truthful testimony as required by law or any judicial or administrativeprocess.     11. Covenant Not to Compete.          (a) The Executive agrees that during the Employment Period the Executive will devotesubstantially the Executive’s full working time to the business of the Company and will not engagein any competitive business. Subject to such full-time requirement and the other restrictions setforth in this Section 11 and Section 3(d) above, the Executive shall be permitted to continue theExecutive’s existing business investments and activities and may pursue additional businessinvestments. Without limiting the foregoing, the Executive specifically covenants that during theEmployment Period and for one (1) year thereafter, the Executive shall not:          (i) compete directly with the Company in a business similar to that of the Company,including, without limitation, engage in, control, advise, manage, serve as a director,officer, member, partner or employee of, act as a consultant to, receive any economicbenefit from or exert any influence upon, any business engaged in creating, sponsoring oradvising tenant in common programs or other real estate investment programs that offerinvestors the ability to defer gains under Section 1031 of the Code or non-traded realestate investment trusts;          (ii) compete directly or indirectly with the Company, its subsidiaries and/or partnersthereof with respect to any acquisition or development of any real estate project undertakenor being considered by the Company, its subsidiaries and/or partners thereof at the end ofExecutive’s Employment Period;          (iii) lend or allow the Executive’s name or reputation to be used by or in connectionwith any business competitive with the Company, its subsidiaries and/or partners thereof; or          (iv) solicit for employment, or encourage to resign from employment, any employee ofthe Company or any of its subsidiaries, or intentionally interfere with, disrupt or attemptto disrupt the relationship, contractual or otherwise, between the Company, its subsidiariesand/or partners thereof, and any lessee, tenant, supplier, contractor, lender, employee orgovernmental agency or authority.          (b) The provisions of this Section 11 shall survive for one year and no longer following thetermination of the Employment Period, regardless of whether such termination is by reason ofdischarge for Cause or without Cause, or by reason of resignation for Good Reason or not for GoodReason, or otherwise; provided, however, that, if the Executive resigns for GoodReason, or is discharged without Cause, during the twelve months following a Change in Control
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(asdefined in Section 8), then the provisions of this Section 11 shall not survive the Executive’sresignation or discharge from employment.     12. Injunctive Relief and Enforcement. In the event of breach or threatened breach bythe Executive of the terms of Section 3(d), 6, 10 or 11, the Company shall be entitled to institutelegal proceedings to enforce the specific performance of this Agreement by the Executive and toenjoin the Executive from any further violation of Section 3(d), 6, 10 or 11 and to exercise suchremedies cumulatively or in conjunction with all other rights and remedies provided by law and nototherwise limited by this Agreement. The Executive acknowledges, however, that the remedies at lawfor any breach by the Executive of the provisions of Section 3(d), 6, 10 or 11 may be inadequate.In addition, in the event the agreements set forth in Section 3(d), 6, 10 or 11 shall be determinedby any court of competent jurisdiction to be unenforceable by reason of extending for too great aperiod of time or over too great a geographical area or by reason of being too extensive in anyother respect, each such agreement shall be interpreted to extend over the maximum period of timefor which it may be enforceable and to the maximum extent in all other respects as to which it maybe enforceable, and enforced as so interpreted, all as determined by such court in such action.     13. Notice. For the purposes of this Agreement, notices, demands and all othercommunications provided for in this Agreement shall be in writing and shall be deemed to have beenduly given when personally delivered, when transmitted by telecopy with receipt confirmed, or oneday after delivery to an overnight air courier guaranteeing next day delivery, addressed asfollows:If to the Executive:  The address set forth below**