advisoryagreementrenewal






                           ADVISORY AGREEMENT                                                                               among                                                                 COTTONWOOD COMMUNITIES, INC.                                                                                and                                                               COTTONWOOD COMMUNITIES O.P., LP                                                                                and                                                                       CC ADVISORS III, LLC                                                                                                                                                                                                      August 13, 2019                                                WEST\287276844.2  





 






                               TABLE OF CONTENTS                                                                                Page     1.    DEFINITIONS ................................................................................................................... 1   2.   APPOINTMENT ............................................................................................................... 8   3.   DUTIES OF THE ADVISOR ............................................................................................ 8         3.1   Organizational and Offering Services .................................................................... 8        3.2   Acquisition Services .............................................................................................. 8        3.3   Asset Management Services .................................................................................. 9        3.4   Stockholder Services ............................................................................................ 11        3.5   Other Services ...................................................................................................... 11   4.   AUTHORITY OF ADVISOR ......................................................................................... 11         4.1   General ................................................................................................................. 11        4.2  Powers of the Advisor .......................................................................................... 12        4.3   Approval by the Board ......................................................................................... 12        4.4   Modification or Revocation of Authority of Advisor .......................................... 12   5.    BANK ACCOUNTS ........................................................................................................ 12   6.   RECORDS AND FINANCIAL STATEMENTS ............................................................ 12   7.    LIMITATION ON ACTIVITIES .................................................................................... 13   8.    FEES ................................................................................................................................ 13         8.1   Contingent Acquisition Fees ................................................................................ 13        8.2   Asset Management Fees ...................................................................................... 15        8.3   Contingent Financing Fees .................................................................................. 16   9.    EXPENSES ...................................................................................................................... 17         9.1   General ................................................................................................................. 17        9.2   Advisor Expenses................................................................................................. 18        9.3   Limitation on Reimbursements ............................................................................ 18   10.   VOTING AGREEMENT................................................................................................. 19                                         i WEST\287276844.2  





 






   11.  RELATIONSHIP OF ADVISOR AND COMPANY; OTHER ACTIVITIES OF       THE ADVISOR ............................................................................................................... 19         11.1  Relationship ......................................................................................................... 19        11.2  Time Commitment ............................................................................................... 19        11.3  Investment Opportunities and Allocation ............................................................ 19   12.  THE COTTONWOOD COMMUNITIES NAME .......................................................... 20   13.   TERM AND TERMINATION OF THE AGREEMENT ............................................... 20         13.1  Term ..................................................................................................................... 20        13.2  Termination by Either Party................................................................................. 20        13.3  Payments on Termination .................................................................................... 20        13.4  Duties of Advisor Upon Termination .................................................................. 20   14.   ASSIGNMENT ................................................................................................................ 21   15.  INDEMNIFICATION AND LIMITATION OF LIABILITY ........................................ 21         15.1  Indemnification .................................................................................................... 21        15.2  Limitation on Indemnification ............................................................................. 22        15.3  Limitation on Payment of Expenses .................................................................... 22   16.   MISCELLANEOUS ........................................................................................................ 22         16.1  Notices ................................................................................................................. 22        16.2  Modification ......................................................................................................... 23        16.3  Severability .......................................................................................................... 23        16.4  Governing Law; Venue ........................................................................................ 23        16.5  Entire Agreement ................................................................................................. 23        16.6  Waiver .................................................................................................................. 23        16.7  Gender .................................................................................................................. 23        16.8  Titles Not to Affect Interpretation ....................................................................... 23        16.9  Counterparts ......................................................................................................... 23        16.10  Binding Effect ...................................................................................................... 24                                            ii  WEST\287276844.2  





 






                              ADVISORY AGREEMENT         This  Advisory  Agreement  (this  “Agreement”),  dated  as  of  August 13,  2019  is  entered  into  by  and  among  Cottonwood  Communities,  Inc.,  a  Maryland  corporation  (the  “REIT”),  Cottonwood Communities O.P., LP (the “Operating Partnership”) and CC Advisors III, LLC, a  Delaware limited liability company (the “Advisor”).  The Operating Partnership, the REIT and  their subsidiaries are collectively referred to herein as the “Company.”                                 W I T N E S S E T H         WHEREAS,  the  Company  desires  to  continue  to  avail  itself  of  the  knowledge,  experience,  sources  of  information,  advice,  assistance  and  certain  facilities  available  to  the  Advisor  and to have the Advisor undertake the duties and responsibilities hereinafter set forth,  on behalf of, and subject to the supervision of, the board of directors of the REIT (the “Board”),  all as provided herein; and         WHEREAS, the Advisor is willing to undertake to render such services, subject to the  supervision of the Board, on the terms and conditions hereinafter set forth.         NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and  agreements contained herein, the parties hereto agree as follows:   1.    Definitions.  The following defined terms used in this Agreement shall have the meanings  specified below:         “Acquisition Expenses” means any and all costs and expenses, excluding the fees payable  to the Advisor pursuant to Sections 8.1 and 8.3, incurred by the Company, any Subsidiary, the  Advisor or their Affiliates, in connection with the selection, acquisition or development of any  Property,  Loan  or  other  Permitted  Investment,  whether  or  not  acquired  or  originated,  as  applicable, including, without limitation, due diligence expenses, legal fees and expenses, travel  and communications expenses, mortgage tax, escrow fees, loan origination fees and expenses,  costs  of  appraisals,  environmental  and  other  third  party  reports,  earnest  money  deposits  and  nonrefundable option payments on properties or other investments not acquired, accounting fees  and expenses, and title insurance premiums, transfer taxes, transfer fees and recording fees and  other customary acquisition closing costs.          “Acquisition Fees” means the fees payable to the Advisor pursuant to Sections 8.1 and  8.3 plus all other fees and commissions, excluding Acquisition Expenses, paid by the Company  or any of its Subsidiaries to any Person in connection with making or investing in any Property,  Loan  or  other  Permitted  Investment  or  the  purchase,  development  or  construction  of  any  Property by the Company or any of its Subsidiaries.  Included in the computation of such fees or  commissions shall be any real estate commission, selection fee, Development Fee, Construction  Fee, nonrecurring management fee, loan fees or points or any fee of a similar nature, however  designated.   Excluded  shall  be  Development  Fees  and  Construction  Fees  paid  to  Persons  not  Affiliated  with  the  Advisor  in  connection  with  the  actual  development  and  construction  of  a  Property.                                          1 WEST\287276844.2  





 






         “Advisor” means (i) CC Advisors III, LLC, a Delaware limited liability company, or (ii)  any successor advisor to the Company.         “Affiliate” or “Affiliated” means, with respect to any first Person, any of the following:  (i) any other Person directly or indirectly controlling, controlled by, or under common control  with such first Person; (ii) any other Person directly or indirectly owning, controlling, or holding  with the power to vote 10% or more of the outstanding voting securities of such first Person; (iii)  any  legal  entity  for  which  such  first  Person  acts  as  an  executive  officer,  director,  trustee,  or  general partner; (iv) any other Person 10% or more of whose outstanding voting securities are  directly or indirectly owned, controlled, or held, with power to vote, by such first Person; and (v)  any executive officer, director, trustee, or general partner of such first Person. An entity shall not  be deemed to control or be under common control with an Advisor-sponsored program unless (i)  the entity owns 10% or more of the voting equity interests of such program or (ii) a majority of  the board of directors (or equivalent governing body) of such program is composed of Affiliates  of the entity.         “Agreement”  shall  mean  this  Advisory  Agreement  between  the  Company  and  the  Advisor, as amended from time to time.         “Asset Management Fee” shall have the meaning set forth in Section 8.2.          “Average  Invested  Assets”  means,  for  a  specified  period, the  average  of  the  aggregate  book value of the assets of the Company invested, directly or indirectly, in Properties, Loans and  other Permitted Investments secured by real estate before reserves for depreciation or bad debts  or other similar non-cash reserves, computed by taking the average of such book values at the  end of each month during such period.         “Average Issue Price” means the weighted average price at which shares were purchased  in  the  primary  portion  of  an  Offering  which  shall  be  calculated  as  of  the  end  of  the  month  preceding the date upon which the calculation is being made.          “Board” means the board of directors of the REIT, as of any particular time.         “Bylaws” means the bylaws of the REIT, as amended from time to time.         “Cash from Sales and Settlements” means the net cash proceeds realized by the Company  (i) from the sale, exchange or other disposition of any of its assets or any portion thereof after  deduction  of  all  expenses  incurred  in  connection  therewith  and (ii)  from  the  prepayment,  maturity,  workout  or  other  settlement  of  any  Loan  or  Permitted Investment  or  portion  thereof  after  deduction  of  all  expenses  incurred  in  connection  therewith.  In  the  case  of  a  transaction  described in clause (i) (C) of the definition of “Sale” and (i)(B) of the definition of “Settlement,”  Cash from Sales and Settlements means the proceeds of any such transaction actually distributed  to the Company from the Joint Venture or partnership.           “Charter” means the articles of incorporation of the Company, as amended from time to  time.                                          2 WEST\287276844.2  





 






         “Code” means the Internal Revenue Code of 1986, as amended from time to time, or any  successor statute thereto. Reference to any provision of the Code shall mean such provision as in  effect from time to time, as the same may be amended, and any successor provision thereto, as  interpreted by any applicable regulations as in effect from time to time.         “Company” shall mean the Operating Partnership, the REIT and their Subsidiaries.         “Conflicts Committee” shall have the meaning set forth in the REIT’s Charter.         “Construction  Fee”  means  a  fee  or  other  remuneration  for  acting  as  general  contractor  and/or construction manager to construct improvements, supervise and coordinate projects or to  provide major repairs or rehabilitation on a Property.         “Contingent Acquisition Fee” shall have the meaning set forth in Section 8.1.         “Contingent Financing Fee” shall have the meaning set forth in Section 8.3.          “Dealer  Manager”  means  (i)  Orchard  Securities,  LLC,  or  (ii)  any  successor  dealer  manager to the Company.         “Development  Fee”  means  a  fee  for  the  packaging  and/or  development  of  a  Property,  including  negotiating  and  approving  plans,  and  undertaking  to  assist  in  obtaining  zoning  and  necessary variances and necessary financing for the Property, either initially or at a later date.         “Director” means a member of the board of directors of the Company.         “Distributions” means any distributions of money or other property by the Company to  owners  of  Shares,  including  distributions  that  may  constitute  a  return  of  capital  for  federal  income tax purposes.         “GAAP” means accounting principles generally accepted in the United States.          “Gross Assets” means (i) the gross book value of the assets of the Company until such  time  as  the  Board  has  established  a  net  asset  value  of  the  Company’s  assets  and  (ii) after  the  Board  has  established  a  net  asset  value  of  the  Company’s  assets,  the  gross  asset  value  of  the  assets of the Company based on such net asset value determination; provided that the value of  any assets acquired after the establishment of a net asset value will be the gross book value of the  assets until such assets are included in a net asset value determination. Under (i) or (ii), gross  book value or gross asset value (as applicable) shall be determined based on the Company’s pro  rata ownership interest in the underlying real estate (including the pro rata value of any budgeted  development-related project costs and/or debt underlying any mezzanine loans, preferred equity,  other real estate-related investments such as B-notes, and/or common  equity investments) and  other assets and liabilities, without regard to GAAP consolidation or equity method accounting  principles.           “Initial Public Offering”  means the public offering of Shares registered on Registration  Statement No. 333-215272 on Form S-11.                                          3 WEST\287276844.2  





 






           “Invested  Capital”  means  the  amount  calculated  by  multiplying  the  total  number  of   Shares  purchased  by  Stockholders  by  the  issue  price,  reduced  by  the  total  number  of  shares   repurchased by the Company multiplied by the Average Issue Price.          “Joint Venture” means any joint venture, limited liability company or other arrangement   between the Company and a third party or an Affiliate of the Company that owns, in whole or in   part, on behalf of the Company any Properties, Loans or other Permitted Investments.          “Listed” or “Listing” shall have the meaning set forth in the Charter.            “Loans” means mortgage loans and other types of debt financing investments made by   the  Company,  either  directly  or indirectly,  including  through  ownership  interests  in  a  Joint   Venture  or  partnership,  including,  without  limitation,  mezzanine  loans,  B-notes,  bridge  loans,   convertible  mortgages,  wraparound  mortgage  loans,  construction mortgage  loans,  loans  on   leasehold interests, and participations in such loans.          “Market Value” shall have the meaning set forth in Section 8.1.3.           “Merger”  means  any  business  combination,  merger,  reorganization  or  share  exchange   involving the Company or its subsidiaries into or with another corporation or other legal person  (the  “Acquiror”)  and  as  a  result of  such  transaction,  less  than  51%  of  the  outstanding  voting   securities or other capital interests of the surviving, resulting or acquiring corporation or other   legal person are owned in the aggregate by those who were Stockholders immediately prior to   such transaction (other than the Acquiror or its Affiliates if they owned Shares immediately prior   to such transaction).           “Merger  Consideration  Amount”  means  (i)  in  the  case  of  a  Merger  in  which  the   consideration consists solely of cash, the total consideration to be received by holders of Shares   outstanding immediately prior to the closing of the Merger, (ii) in the case of a Merger in which   the consideration consists of securities traded on a national securities exchange, the product of   (x) the number of shares of such  securities  received  by  the Stockholders  at the  closing  of  the   Merger and (y) the market value of such securities, measured by taking the average closing price   or the average of the bid and asked price, as the case may be, over a period of 30 consecutive   days during which such securities are traded, with such 30-day period ending on the trading day   prior to the closing date of the Merger, (iii) in the case of a Merger in which the consideration   consist of securities that are not traded on a national securities exchange, the aggregate the fair   market  value  (as  of  the  most  recent  practicable  date)  of  the  securities  to  be  received  by  the   Stockholders as estimated by an independent expert chosen by the Board of Directors, and (iv) in   the case of a Merger in which the consideration is some combination of that described above, the   sum of clauses (i) through (iii), as applicable.          “NASAA  Guidelines”  means  the  NASAA  Statement  of  Policy  Regarding  Real  Estate   Investment Trusts as in effect on the date hereof.          “Net Income” means, for any period, the total revenues applicable to such period, less the   total  expenses  applicable  to  such  period  excluding  additions  to  reserves  for  depreciation,  bad   debts  or  other  similar  non-cash  reserves;  provided,  however,  Net  Income  for  purposes  of                                          4  WEST\287276844.2  





 






   calculating  total  allowable  Operating  Expenses  (as  defined  herein)  shall  exclude  the  gain  included in the Company’s consolidated accounts arising from the sale of assets.         “Offering”  means  any  offering  of  the  Company’s  securities  that is  registered  with  the  SEC, excluding Shares offered under any employee benefit plan.         “Operating  Cash  Flow”  means  Operating  Revenue  Cash  Flows  minus the  sum  of  (i)  Operating Expenses, (ii) all principal and interest payments on indebtedness and other sums paid  to  lenders,  (iii)  to  the  extent  paid  by  the  Company,  the  expenses  of  raising  capital  such  as  Organization and Offering Expenses, legal, audit, accounting, underwriting, brokerage, listing,  registration, and other fees, printing and other such expenses and tax incurred in connection with  the issuance, distribution, transfer, registration and Listing of the Shares, (iv) taxes, (v) incentive  fees paid in compliance with Section IV.F. of the NASAA Guidelines and (vi) Acquisition Fees,  Acquisition Expenses, real estate commissions on the resale of real property, and other expenses  connected with  the acquisition,  origination,  disposition,  and  ownership  of  real  estate  interests,  loans or other property (other than commissions on the sale of assets other than real property),  such  as  the  costs  of  foreclosure,  insurance  premiums,  legal  services,  maintenance,  repair  and  improvement of property.         “Operating  Expenses”  means  all  costs  and  expenses  incurred  by  the  Company,  as  determined  under  GAAP,  that  in  any  way  are  related  to  the  operation  of  the  Company  or  to  Company business, including fees paid to the Advisor, but excluding (i) the expenses of raising  capital to the extent paid by the Company, including Organization and Offering Expenses, legal,  audit, accounting, underwriting, brokerage, listing, registration, and other fees, printing and other  such expenses and tax incurred in connection with the issuance, distribution, transfer, registration  and Listing of the Shares, (ii) interest payments, (iii) taxes, (iv) non-cash expenditures such as  depreciation,  amortization  and  bad  loan  reserves,  (v)  incentive  fees  paid  in  compliance  with  Section IV.F. of the NASAA Guidelines and (vi) Acquisition Fees, Acquisition Expenses, real  estate  commissions  on  the  resale  of  real  property,  and  other  expenses  connected  with  the  acquisition, disposition, and ownership of real estate interests, loans or other property (other than  commissions  on  the  sale  of  assets  other  than  real  property),  such  as  the  costs  of  foreclosure,  insurance premiums, legal services, maintenance, repair and improvement of property.          “Operating  Revenue  Cash  Flows”  means  the  Company’s  cash  flow  from  ownership  and/or  operation  of  (i)  Properties,  (ii)  Loans,  (iii)  Permitted  Investments,  (iv)  short-term  investments, and (v) interests in Properties, Loans and Permitted Investments owned by any Joint  Venture  or  any  partnership  in  which  the  Company  is,  directly  or  indirectly,  a  co-venturer  or  partner.         “Organization and Offering Expenses” means all expenses incurred by or on behalf of the  Company in connection with or preparing the Company for the offering and distributing of its  Shares in an Offering, whether incurred before or after the date of this Agreement, which may  include but are not limited to, (i) total underwriting and brokerage discounts and commissions  (including fees of the underwriters’ attorneys); (ii) placement agent fees and expenses; (iii) legal,  accounting, tax planning and escrow costs; (iv) printing, attending, supplementing, mailing and  distribution  costs;  (v) expenses  for  printing,  engraving  and  mailing;  (vi) salaries  of  employees  while  engaged  in  sales  activity;  (vii) charges  of  transfer  agents,  registrars,  trustees,  escrow                                         5 WEST\287276844.2  





 






     holders, depositaries and experts; and (viii) expenses of obtaining exemption or qualification of   the sale of the securities under Federal and state laws, including taxes and fees, accountants’ and   attorneys’ fees.          “Operating Partnership” means Cottonwood Communities O.P., LP, a Delaware limited   partnership  formed  to  own  and  operate  Properties,  Loans  and  other  Permitted  Investments  on   behalf of the Company.            “Permitted  Investments”  means  all  investments  (other  than  Properties  and  Loans)   in   which  the  Company  may  acquire  an  interest,  either  directly  or  indirectly,  including  through   ownership  interests  in  a  Joint  Venture  or  partnership,  pursuant  to  its  Charter,  Bylaws  and  the   investment objectives and policies adopted by the Board from time to time, other than short-term   investments acquired for purposes of cash management.          “Person”  means  an  individual,  corporation,  partnership,  estate,  trust  (including  a  trust   qualified under Section 401(a) or 501(c) (17) of the Code), a portion of a trust permanently set  aside  for  or  to  be  used  exclusively  for  the  purposes  described in  Section  642(c)  of  the  Code,  association,  private  foundation within  the  meaning  of  Section  509(a)  of  the  Code,  joint  stock  company or other entity, or any government or any agency or political subdivision thereof, and  also  includes  a  group  as  that  term  is  used  for  purposes  of  Section  13(d)(3)  of  the  Securities  Exchange Act of 1934, as amended.         “Property”  means  any  real  property  or  properties  transferred  or  conveyed  to  the   Company, either directly or indirectly, including through ownership interests in a Joint Venture   or partnership.             “Property Manager” means an entity that has been retained to perform and carry out at   one  or  more  of  the  Properties  property  management  services,  excluding  persons,  entities  or   independent  contractors  retained  or  hired  to  perform  facility  management  or  other  services  or   tasks at a particular Property, the costs for which are passed through to and ultimately paid by the   tenant at such Property.           “Sale” means any transaction or series of related transactions whereby: (A) the Company   sells,  grants,  transfers,  conveys,  or  relinquishes  its  ownership  of  any  Property,  Loan  or  other   Permitted Investment or portion thereof, including the transfer of any Property that is the subject   of a ground lease, and including any event with respect to any Property, Loan or other Permitted   Investment that gives rise to a significant amount of insurance proceeds or condemnation awards,   and including the issuance by one of the Company’s subsidiaries of any asset-backed securities   as  part  of  a  securitization  transaction;  (B)  the  Company  sells,  grants,  transfers,  conveys,  or   relinquishes its ownership of all or substantially all of the interest of the Company in any Joint   Venture or partnership in which it is, directly or indirectly, a co-venturer or partner; or (C) any   Joint Venture or partnership (in which the Company is, directly or indirectly, a co-venturer or   partner) sells, grants, transfers, conveys, or relinquishes its ownership of any Property, Loan or   other Permitted Investment or portion thereof, including any event with respect to any Property,   Loan or other Permitted Investment that gives rise to insurance claims or condemnation awards,   and including the issuance by such Joint Venture or partnership or one of its subsidiaries of any   asset-backed securities as part of a securitization transaction.                                          6  WEST\287276844.2  





 






         “SEC” means the United States Securities and Exchange Commission.         “Settlement” means the prepayment, maturity, workout or other settlement of any Loan  or  other  Permitted  Investment  or  portion  thereof  owned,  directly  or  indirectly,  by  (A)  the  Company  or  (B)  any  Joint  Venture or  any  partnership  in  which  the  Company  is,  directly  or  indirectly, a partner.          “Shares” means shares of common stock of the Company, par value $.01 per share.         “Stockholders” means the registered holders of the Shares.         “Stockholders’ 6% Return” means, as of any date, an aggregate amount equal to a 6%  cumulative, non-compounded, annual return on Invested Capital (calculated like simple interest  on a daily basis based on a three hundred sixty-five day year).  For purposes of calculating the  Stockholders’ 6% Return, Invested Capital shall be determined for each day during the period for  which the Stockholders’ 6% Return is being calculated, including a daily adjustment to reflect  shares  repurchased  by  the  Company  (excluding  shares  issued  as  stock  dividends  and  subsequently repurchased by the Company), and shall be calculated net of (1) Distributions of  Cash from Sales and Settlements and (2) Distributions of Operating Cash Flow to the extent such  Distributions of Operating Cash Flow provide a cumulative, non-compounded, annual return in  excess of 6%, as such amounts are computed on a daily basis based on a three hundred sixty-five  day year.         “Stockholders’ 13% Return” means, as of any date, an aggregate amount equal to a 13%  cumulative, non-compounded, annual return on Invested Capital (calculated like simple interest  on a daily basis based on a three hundred sixty-five day year). For purposes of calculating the  Stockholders’ 13% Return, Invested Capital shall be determined for each day during the period  for  which  the  Stockholders’  13%  Return  is  being  calculated,  including  a  daily  adjustment  to  reflect  shares  repurchased  by  the  Company  (excluding  shares  issued  as  stock  dividends  and  subsequently repurchased by the Company), and shall be calculated net of (1) Distributions of  Cash from Sales and Settlements and (2) Distributions of Operating Cash Flow to the extent such  Distributions of Operating Cash Flow provide a cumulative, non-compounded, annual return in  excess of 13%, as such amounts are computed on a daily basis based on a three hundred sixty- five day year.         “Subsidiary”  means,  with  respect  to  any  Person  (the  “parent”), at  any  date,  any  corporation,  limited  liability  company,  partnership,  association  or  other  entity  the  accounts  of  which  would  be  consolidated  with  those  of  the  parent  in  the  parent’s  consolidated  financial  statements if such financial statements were prepared in accordance with GAAP as of such date,  as well as any other corporation, limited liability company, partnership, association or other entity  of which securities or other ownership interests representing more than 50% of the equity or more  than  50%  of  the  ordinary  voting  power  or,  in  the  case  of  a  partnership  or  limited  liability  company, more than 50% of the general partnership interests or managing member interests are,  as of such date, owned, controlled or held, directly or indirectly, by one or more of the parent and  its Subsidiaries.                                          7 WEST\287276844.2  





 






         “Termination  Date”  means  the  date  of  termination  of  the  Agreement  determined  in  accordance with Section 13.         “2%/25% Guidelines” shall have the meaning set forth in Section 9.3.   2.    Appointment.         The Company hereby appoints the Advisor to serve as its advisor and asset manager on  the  terms  and  conditions  set  forth  in  this  Agreement,  and  the  Advisor  hereby  accepts  such  appointment.   3.    Duties of the Advisor.         The  Advisor  is  responsible  for managing,  operating,  directing  and  supervising  the  operations  and  administration  of  the  Company  and  its  assets.   The  Advisor  undertakes  to  use  commercially reasonable efforts to present to the Company potential investment opportunities, to  make investment decisions on behalf of the Company subject to the limitations in the Company’s  Charter, the direction and oversight of the Board and Section 4.3, and to provide the Company  with a continuing and suitable investment program consistent with the investment objectives and  policies of the Company as determined and adopted from time to time by the Board.  Subject to  the limitations set forth in this Agreement, including Section 4, and the continuing and exclusive  authority of the Board over the management of the Company, the Advisor shall, either directly or  by engaging an Affiliate or third party, perform the following duties:         3.1   Organizational  and  Offering  Services.   The  Advisor  shall  perform  all  services  related to the organization of the Company or any Offering, other than services that (i) are to be  performed  by  the  Dealer  Manager,  (ii) the  Company  elects  to  perform  directly  or  (iii) would  require the Advisor to register as a broker-dealer with the SEC or any state.        3.2   Acquisition Services.               3.2.1 Serve  as  the  Company’s  investment  and  financial  advisor  and  provide  relevant  market  research  and  economic  and  statistical  data  in  connection  with  the  Company’s  assets and investment objectives and policies;               3.2.2 Subject  to  Section  4  and  the  investment  objectives  and  policies of the  Company:  (a)  locate,  analyze  and select  potential  investments; (b)  structure  and  negotiate  the  terms  and  conditions  of  transactions  pursuant  to  which  investments  in  Properties,  Loans  and  other Permitted Investments will be made; (c) acquire, originate and dispose of Properties, Loans  and other Permitted Investments on behalf of the Company and its Subsidiaries; (d) arrange for  financing and refinancing and make other changes in the asset or capital structure of investments  in Properties, Loans and other Permitted Investments of the Company and its Subsidiaries; and  (e)  enter  into  leases,  service  contracts  and  other  agreements  for  Properties,  Loans  and  other  Permitted Investments of the Company and its Subsidiaries;               3.2.3 Perform due diligence on prospective investments and create due diligence  reports summarizing the results of such work;                                         8 WEST\287276844.2  





 






                 3.2.4 With  respect  to  prospective  investments  presented  to  the  Board,  prepare   reports  regarding  such  prospective  investments  that  include  recommendations  and  supporting   documentation necessary for the Directors to evaluate the proposed investments;                3.2.5 Obtain reports (which may be prepared by the Advisor or its Affiliates),   where  appropriate,  concerning the  value  of  contemplated  investments  of  the  Company  and its   Subsidiaries;                 3.2.6 Deliver to or maintain on behalf of the Company copies of all appraisals   obtained in connection with the Company’s and its Subsidiaries’ investments; and                3.2.7 Negotiate  and  execute  approved  investments  and  other  transactions,   including prepayments, maturities, workouts and other settlements of Loans and other Permitted   Investments of the Company and its Subsidiaries.          3.3   Asset Management Services.                3.3.1 Real Estate and Related Services:                      (a)   Investigate,  select  and,  on  behalf  of  the  Company,  engage  and   conduct  business  with  (including  enter  contracts  with)  such  Persons  as  the  Advisor  deems   necessary to the proper performance of its obligations as set forth in this Agreement, including   but  not  limited  to  consultants,  accountants,  lenders,  technical  advisors,  attorneys,  brokers,   underwriters, corporate fiduciaries, escrow agents, depositaries, custodians, agents for collection,  insurers, insurance agents, developers, construction companies, Property Managers and any and  all Persons acting in any other capacity deemed by the Advisor necessary or desirable for the  performance of any of the foregoing services;                     (b)   Negotiate  and  service  the  Company’s  and  its  Subsidiaries’  debt  facilities and other financings;                     (c)   Monitor  applicable  markets  and  obtain  reports  (which  may  be  prepared by the Advisor or its Affiliates) where appropriate, concerning the value of investments  of the Company and its Subsidiaries;                     (d)   Monitor  and  evaluate  the  performance  of  each  asset  of  the  Company and its Subsidiaries and the Company’s and its Subsidiaries’ overall portfolio of assets,  provide  daily  management  services  to  the  Company  and  perform  and  supervise  the  various  management  and  operational  functions  related  to  the  Company’s  and  its  Subsidiaries’  investments;                     (e)   Formulate  and  oversee  the  implementation  of  strategies  for  the  administration,  promotion,  management,  operation,  maintenance, improvement,  financing  and  refinancing,  marketing,  leasing  and  disposition  of  Properties, Loans  and  other  Permitted  Investments on an overall portfolio basis;                     (f)   Consult with the Company’s officers and the Board and assist the  Board  in  the  formulation  and  implementation  of  the  Company’s  financial  policies,  and,  as                                          9  WEST\287276844.2  





 






     necessary with respect to investment and borrowing opportunities presented to the Board, furnish   the  Board  with  advice  and  recommendations  with  respect  to  the  making  of  investments   consistent with the investment objectives and policies of the Company and in connection with   any borrowings proposed to be undertaken by the Company and its Subsidiaries;                      (g)   Aggregate property budgets into the Company’s overall budget;                      (h)   Conduct  periodic  on-site  property  visits  to  some  or  all  (as  the   Advisor deems reasonably necessary) of the Properties to inspect the physical condition of the   Properties;                      (i)   Coordinate and manage relationships between the Company and its   Subsidiaries, on the one hand, and any Joint Venture partners on the other; and                      (j)   Consult  with  the  Company’s  officers  and  the  Board  and  provide   assistance with the evaluation and approval of potential asset disposition, sale and refinancing   opportunities that are presented to the Board.                3.3.2 Accounting and Other Administrative Services:                      (a)   Provide the day-to-day management of the Company and perform   and supervise the various administrative functions reasonably necessary for the management of   the Company and its Subsidiaries;                      (b)   From  time  to  time,  or  at  any  time  reasonably  requested  by  the   Board, make reports to the Board on the Advisor’s performance of services to the Company and   its Subsidiaries under this Agreement;                      (c)   Provide or arrange for any administrative services and items, legal  and other services, office space, office furnishings, personnel and other overhead items necessary  and incidental to the Company’s and its Subsidiaries’ businesses and operations;                     (d)   Provide financial and operational planning services;                     (e)   Maintain  accounting  and  other  record-keeping  functions  at  the  Company and investment levels, including information concerning the activities of the Company  as shall be required to prepare and to file all periodic financial reports, tax returns and any other  information  required  to  be  filed  with  the  SEC,  the  Internal  Revenue  Service  and  any  other  regulatory agency;                     (f)   Maintain  and  preserve  all  appropriate  books  and  records  of  the  Company and its Subsidiaries;                     (g)   Provide  tax  and  compliance  services  and  coordinate  with  appropriate third parties, including the Company’s independent auditors and other consultants,  on related tax matters;                                            10  WEST\287276844.2  





 






                       (h)   Provide the Company and its Subsidiaries with all necessary cash   management services;                      (i)   Manage  and  coordinate  with  the  transfer  agent  the  periodic   dividend process and payments to Stockholders;                      (j)   Consult with the Company’s officers and the Board and assist the   Board  in  evaluating  and  obtaining  adequate  insurance  coverage  based  upon  risk  management   determinations;                      (k)   Consult with the Company’s officers and the Board relating to the   corporate governance structure and appropriate policies and procedures related thereto;                       (l)   Perform all reporting, record keeping, internal controls and similar  matters in a manner to allow the Company and its Subsidiaries to comply with applicable law,  including federal and state securities laws and the Sarbanes-Oxley Act of 2002, and provide the  Company’s  officers  and  the  Board  with  timely  updates  regarding the  Company’s  compliance  with applicable law;                     (m)   Notify the Board of all proposed material transactions before they  are completed and get approval where necessary; and                     (n)   Do all things necessary to assure its ability to render the services  described in this Agreement.         3.4   Stockholder Services.                3.4.1 Manage services for and communications with Stockholders and holders   of other securities of the Company,  including  answering  phone  calls,  preparing  and  sending   written and electronic reports and other communications;                 3.4.2 Oversee the performance of the transfer agent and registrar;                 3.4.3 Establish  technology  infrastructure  to  assist  in  providing  Stockholder  support and service; and               3.4.4 Consistent  with  Section  3.1,  the  Advisor  shall  perform  the  various  subscription processing services reasonably necessary for the admission of new Stockholders.         3.5   Other Services.  Except as provided in Section 7, the Advisor shall perform any   other services reasonably requested by the Company (acting through the Conflicts Committee).    4.    Authority of Advisor.          4.1   General.  Subject to the supervision of the Board, all rights and powers to manage   and  control  the  day-to-day  business  and  affairs  of  the  Company and  its  Subsidiaries  shall  be   vested in the Advisor. The Advisor shall have the power to delegate all or any part of its rights   and powers to manage and control the business and affairs of the Company and its Subsidiaries                                          11  WEST\287276844.2  





 






     to such officers, employees, Affiliates, agents and representatives of the Advisor or the Company   as it may deem appropriate.  Any authority delegated by the Advisor to any other Person shall be   subject to the limitations on the rights and powers of the Advisor specifically set forth in this   Agreement or the Charter.          4.2   Powers  of  the  Advisor.   Subject  to  the  express  limitations  set forth  in  this   Agreement and the continuing and exclusive authority of the Board over the management of the   Company,  the  power  to  direct  the  management,  operation  and  policies  of  the  Company,   including making, financing and disposing of investments, shall be vested in the Advisor, which   shall have the power by itself and shall be authorized and empowered on behalf and in the name   of the Company to carry out any and all of the objectives and purposes of the Company and to   perform all acts and enter into and perform all contracts and other undertakings that it may in its   sole discretion deem necessary, advisable or incidental thereto to perform its obligations under   this Agreement.          4.3   Approval by the Board.  Notwithstanding the foregoing, the Advisor may not take   any action on behalf of the Company (or its Subsidiaries) without the prior approval of the Board   or  duly  authorized  committees  thereof  if  the  Charter  or  Maryland  General  Corporation  Law  require  the  prior  approval  of  the  Board  (or  if  the  governing  documents  or  governing  law  applicable  to  any  Subsidiary  require  the  prior  approval  of  the governing  body  of  such  Subsidiary).   If  the  Board  or  a  committee  of  the  Board  must  approve  a  proposed  investment,  financing or disposition or chooses to do so, the Advisor will deliver to the Board or committee,  as applicable, all documents required by it to evaluate such investment, financing or disposition.         4.4   Modification or Revocation of Authority of Advisor.  The Board may, at any time   upon the giving of notice to the Advisor, modify or revoke the authority or approvals set forth in   Section  3  and  this  Section  4  hereof;  provided,  however,  that  such  modification  or  revocation   shall  be  effective  upon  receipt  by  the  Advisor  and  shall  not  be  applicable  to  investment   transactions to which the Advisor has committed the Company or its Subsidiaries prior to the   date of receipt by the Advisor of such notification.    5.    Bank Accounts.          The Advisor may establish and maintain one or more bank accounts in the name of the   Company (and its Subsidiaries) and may collect and deposit into any such account or accounts,   and disburse from any such account or accounts, any money on behalf of the Company and its   Subsidiaries,  under  such  terms  and  conditions  as  the  Board  (or the  governing  body  of  such   Subsidiary)  may  approve,  provided  that  no  funds  shall  be  commingled  with  the  funds  of  the   Advisor.  The Advisor shall from time to time render appropriate accountings of such collections  and payments to the Board and the independent auditors of the Company.   6.    Records and Financial Statements.          The  Advisor,  in  the  conduct  of its  responsibilities  to  the  Company,  shall  maintain   adequate and separate books and records for the Company’s and its Subsidiaries’ operations in   accordance with GAAP, which shall be supported by sufficient documentation to ascertain that   such books and records are properly and accurately recorded.  Such books and records shall be                                          12  WEST\287276844.2  





 






     the  property  of  the  Company  and  its  Subsidiaries  and  shall  be  available  for  inspection  by  the   Board and by counsel, auditors and other authorized agents of the Company, at any time or from   time to time during normal business hours.  Such books and records shall include all information   necessary  to  calculate  and  audit  the  fees  or  reimbursements  paid  under  this  Agreement.   The   Advisor shall utilize procedures to attempt to ensure such control over accounting and financial   transactions as is reasonably required to protect the Company’s and its Subsidiaries’ assets from   theft,  error  or  fraudulent  activity.   All  financial  statements that  the  Advisor  delivers  to  the   Company  shall  be  prepared  on an accrual  basis  in  accordance  with  GAAP,  except  for  special   financial reports that by their nature require a deviation from GAAP. The Advisor shall liaise   with  the  Company’s  officers  and  independent  auditors  and  shall provide  such  officers  and   auditors with the reports and other information that the Company so requests.    7.    Limitation on Activities.          Notwithstanding any provision in this Agreement to the contrary, the Advisor shall not   take  any  action  that,  in  its  sole  judgment  made  in  good  faith, would  (i)  adversely  affect  the   ability of the Company to qualify or continue to qualify as a “real estate investment trust” under   Sections  856  through  860  of  the  Code,  (ii)  subject  the  Company to  regulation  under  the   Investment Company Act of 1940, as amended, (iii) violate any law, rule, regulation or statement  of policy of any governmental body or agency having jurisdiction over the Company, its Shares  or its other securities, (iv) require the Advisor to register as a broker-dealer with the SEC or any  state,  (v)  violate  the  Charter  or  Bylaws,  or  (vi)  violate  the  governing  documents  of  any  Subsidiary  of  the  Company.   In  the  event  an  action  that  would  violate  (i)  through  (vi)  of  the  preceding sentence but such action has been ordered by the Board, the Advisor shall notify the  Board of the Advisor’s judgment of the potential impact of such action and shall refrain from  taking such action until it receives further clarification or instructions from the Board.  In such  event, the Advisor shall have no liability for acting in accordance with the specific instructions of  the Board so given.    8.    Fees.            8.1   Contingent Acquisition Fees.                  8.1.1 After  the  Stockholders  have  received  or  are  deemed  to  have  received   Distributions, including with respect to a Listing or a Merger as described in Sections 8.1.3 and   8.1.4 below, in an aggregate amount equal to the sum of (i) the Stockholders’ 6% Return and (ii)   Invested Capital, the Company shall pay the Advisor a Contingent Acquisition Fee as follows.    With respect to the acquisition or origination of a Property, Loan or other Permitted Investment   to be  owned by the  Company or a Subsidiary, the  Contingent  Acquisition Fee  payable to the   Advisor  shall  equal  1.0%  of  the  sum  of  the  amount  actually  paid  or  allocated  to  fund  the   acquisition,  origination,  development,  construction  or  improvement  of  the  Property,  Loan  or   other  Permitted  Investment,  inclusive  of  the  Acquisition  Expenses  associated  with  such   Property,  Loan  or  other  Permitted  Investment  and  the  amount  of any  debt  associated  with,  or   used  to  fund  the  investment  in,  such  Property,  Loan  or  other  Permitted  Investment,  plus   significant (as determined in the sole discretion of the Advisor) capital expenditures related to   the development, construction or improvement of such Property, Loan or Permitted Investment.    With respect to the acquisition or origination of a Property, Loan or other Permitted Investment                                          13  WEST\287276844.2  





 






     through any Joint Venture or any partnership in which the Company is, directly or indirectly, a   partner  and  which  is  not  deemed  a  Subsidiary,  the  Contingent  Acquisition  Fee  payable  to  the   Advisor shall equal 1.0% of the portion that is attributable to the Company’s direct or indirect   investment in such Joint Venture or partnership of the amount actually paid or allocated to fund   the acquisition, origination, development, construction or improvement of the Property, Loan or   other Permitted Investment, inclusive of the Acquisition Expenses associated with such Property,   Loan or other Permitted Investment, plus the amount of any debt associated with, or used to fund   the  investment  in,  such  Property,  Loan  or  other  Permitted  Investment,  plus  significant  (as   determined in the sole discretion of the Advisor) capital expenditures related to the development,   construction or improvement of such Property, Loan or Permitted Investment.                 8.1.2 After  the  Stockholders  have  received  or  are  deemed  to  have  received   Distributions, including with respect to a Listing or a Merger as described in Sections 8.1.3 and   8.1.4 below, in an aggregate amount equal to the sum of (i) the Stockholders’ 13% Return and   (ii)  Invested  Capital,  the  Company  shall  pay  the  Advisor  a  Contingent  Acquisition  Fee  as  follows.  With respect to the acquisition or origination of a Property, Loan or other Permitted  Investment  to  be  owned  by  the  Company  or  a  Subsidiary,  the  Contingent  Acquisition  Fee  payable to the Advisor shall equal 2.0% of the sum of the amount actually paid or allocated to  fund  the  acquisition,  origination,  development,  construction  or  improvement  of  the  Property,  Loan or other Permitted Investment, inclusive of the Acquisition Expenses associated with such  Property,  Loan  or  other  Permitted  Investment  and  the  amount  of any  debt  associated  with,  or  used  to  fund  the  investment  in,  such  Property,  Loan  or  other  Permitted  Investment,  plus  significant (as determined in the sole discretion of the Advisor) capital expenditures related to  the development, construction or improvement of such Property, Loan or Permitted Investment.   With respect to the acquisition or origination of a Property, Loan or other Permitted Investment  through any Joint Venture or any partnership in which the Company is, directly or indirectly, a  partner  and  which  is  not  deemed  a  Subsidiary,  the  Contingent  Acquisition  Fee  payable  to  the  Advisor shall equal 2.0% of the portion that is attributable to the Company’s direct or indirect  investment in such Joint Venture or partnership of the amount actually paid or allocated to fund  the acquisition, origination, development, construction or improvement of the Property, Loan or  other Permitted Investment, inclusive of the Acquisition Expenses associated with such Property,  Loan or other Permitted Investment, plus the amount of any debt associated with, or used to fund  the  investment  in,  such  Property,  Loan  or  other  Permitted  Investment,  plus  significant  (as  determined in the sole discretion of the Advisor) capital expenditures related to the development,  construction or improvement of such Property, Loan or Permitted Investment.               8.1.3 In  the  event  of  a  Listing,  Stockholders will be deemed to have received  Distributions sufficient to provide the required return if (i) the market value of the outstanding  Shares of the Company, measured by taking the average closing price or the average of the bid  and asked price, as the case may be, during a period of 30 trading days commencing after the  first day of the 6th month, but no later than the last day of the 18th month following Listing, the   commencement date of which shall be chosen by the Advisor in its sole discretion (the “Market   Value”), plus the total of all Distributions paid to Stockholders from the Company’s inception   until the date that Market Value is determined, exceeds (ii) the sum of (A) Invested Capital and   (B)  the  total  Distributions  required  to  be  paid  to  the  Stockholders  in  order  to  pay  the   Stockholders’ 6% Return or the Stockholders 13% Return, as applicable, from inception through   the date Market Value is determined.                                           14  WEST\287276844.2  





 






                 8.1.4 In the event of a Merger, Stockholders will be deemed to have received  Distributions sufficient to provide the required return if (i) the Merger Consideration Amount,  plus the total of all Distributions paid to Stockholders from the Company’s inception until the  date of the closing of the Merger, plus all Distributions declared prior to the Merger but to be  paid after the Merger, exceeds (ii) the sum of (A) Invested Capital and (B) the total Distributions  required  to  be  paid  to  the  Stockholders  in  order  to  pay  the  Stockholders’  6%  Return  or  the  Stockholders  13%  return,  as  applicable,  from  inception  through the  date  of  the  closing  of  the  Merger.                8.1.5 Contingent  Acquisition  Fees  are  payable  upon  satisfying  each  return  threshold with respect to assets in the portfolio at the time the return threshold is satisfied and at  the closing of acquisitions following satisfaction of the return threshold.  For the avoidance of  doubt,  in  the  event  of  a  Merger,  the  Contingent  Acquisition  fee  will  be  payable  immediately  prior to the closing of the Merger if the return threshold would be satisfied upon closing of the  Merger.               8.1.6 Upon the termination or non-renewal of this Agreement by the Company  prior to August 13, 2028 for any reason other than the Advisor’s fraud, willful misconduct or  gross negligence, as determined by a final, non-appealable judgement of a court of competent  jurisdiction, the Company shall pay the Advisor a Contingent Acquisition Fee as follows. With  respect to the acquisition or origination of a Property, Loan or other Permitted Investment to be  owned by the Company or a Subsidiary, the Contingent Acquisition Fee payable to the Advisor  shall equal  3.0%  of  the  sum  of  the amount  actually  paid  or  allocated  to  fund  the  acquisition,  origination, development, construction or improvement of the Property, Loan or other Permitted  Investment, inclusive of the Acquisition Expenses associated with such Property, Loan or other  Permitted Investment and the amount of any debt associated with, or used to fund the investment  in, such Property, Loan or other Permitted Investment, plus significant (as determined in the sole  discretion  of  the  Advisor)  capital  expenditures  related  to  the development,  construction  or  improvement of such Property, Loan or Permitted Investment.  With respect to the acquisition or  origination of a Property, Loan or other Permitted Investment through any Joint Venture or any  partnership in which the Company is, directly or indirectly, a partner and which is not deemed a  Subsidiary,  the  Contingent  Acquisition  Fee  payable  to  the  Advisor  shall  equal  3.0%  of  the  portion that is attributable to the Company’s direct or indirect investment in such Joint Venture  or  partnership  of  the  amount  actually  paid  or  allocated  to  fund  the  acquisition,  origination,  development, construction or improvement of the Property, Loan or other Permitted Investment,  inclusive of  the  Acquisition  Expenses  associated  with  such  Property,  Loan  or other  Permitted  Investment, plus the amount of any debt associated with, or used to fund the investment in, such   Property,  Loan  or  other  Permitted  Investment,  plus  significant (as  determined  in  the  sole   discretion  of  the  Advisor)  capital  expenditures  related  to  the development,  construction  or   improvement of such Property, Loan or Permitted Investment.  Any amounts payable pursuant to   this Section 8.1.6 will be reduced by any amounts previously paid to the Advisor under Section   8.1.1 and Section 8.1.2.          8.2   Asset Management Fees.  The Company shall pay the Advisor a monthly Asset   Management  Fee  in  an  amount  equal  to  one-twelfth  of  1.25%   of  the  Gross  Assets  of  the   Company. The Gross Assets will be determined as of the last day of the prior month. The Asset   Management Fee shall be payable monthly on the first business day following the last day of                                          15  WEST\287276844.2  





 






     such month.  Notwithstanding the foregoing, the amount of the Asset Management Fee payable  monthly shall be reduced by the aggregate amount of the purchase price discount provided to  investors  purchasing  shares  through  a  registered  investment  advisor  as  described  in  the  prospectus for the Initial Public Offering during the month.           8.3   Contingent Financing Fees.                  8.3.1 After  the  Stockholders  have  received  or  are  deemed  to  have  received   Distributions, including with respect to a Listing or a Merger as described in Sections 8.3.2 and   8.3.3 below, in an aggregate amount equal to the sum of (i) the Stockholders’ 13% Return and   (ii)  Invested  Capital,  the  Company  shall  pay  the  Advisor  a  Contingent Financing Fee in an   amount  equal  to  1.0%  of  the  original  principal  amount  of  any  debt  financing  obtained  or   assumed by or for the Company or its Subsidiaries.                8.3.2 In  the  event  of  a  Listing,  Stockholders will be deemed to have received   Distributions sufficient to provide the required return if (i) the Market Value of the outstanding   Shares  of  the  Company,  plus  the  total  of  all  Distributions  paid  to  Stockholders  from  the   Company’s inception until the date that Market Value is determined, exceeds (ii) the sum of (A)   Invested Capital and (B) the total Distributions required to be paid to the Stockholders in order to   pay the Stockholders 13% Return, as applicable, from inception through the date Market Value is   determined.                 8.3.3 In the event of a Merger, Stockholders will be deemed to have received   Distributions sufficient to provide the required return if (i) the Merger Consideration Amount,   plus the total of all Distributions paid to Stockholders from the Company’s inception until the   date of the closing of the Merger, plus all Distributions declared prior to the Merger but to be   paid after the Merger, exceeds (ii) the sum of (A) Invested Capital and (B) the total Distributions   required  to  be  paid  to  the  Stockholders  in  order  to  pay  the  Stockholders  13%  Return  from   inception through the date of the closing of the Merger.                 8.3.4 Contingent  Financing  Fees  are  payable  upon  satisfying  the  return  threshold with respect to any financing obtained or assumed by the Company or its Subsidiaries  prior  to  satisfaction  of  the  return  threshold  and  at  the  closing  of  new  financing  following  satisfaction  of  the  return  threshold.  For  the  avoidance  of  doubt,  in the  event  of  a  Merger,  the  Contingent Financing fee will be payable immediately prior to the closing of the Merger if the  return threshold would be satisfied upon closing of the Merger.               8.3.5 Upon the termination or non-renewal of this Agreement by the Company  prior to August 13, 2028 for any reason other than the Advisor’s fraud, willful misconduct or  gross negligence, as determined by a final, non-appealable judgement of a court of competent  jurisdiction, the Company shall pay the Advisor a Contingent Financing Fee in an amount equal  to 1.0% of the original principal amount of any debt financing obtained or assumed by or for the  Company  or  its  Subsidiaries.   Any  amounts  payable  pursuant  to  this  Section  8.3.5  will  be  reduced by any amounts previously paid to the Advisor under Section 8.3.1.                                           16  WEST\287276844.2  





 






     9.    Expenses.          9.1   General.   Subject  to  Section  9.2,  in  addition  to  the  compensation  paid  to  the   Advisor pursuant to Section 8, the Company shall pay directly or reimburse the Advisor for all of   the expenses paid or incurred by the Advisor or its Affiliates on behalf of the Company or in   connection with the services provided to the Company pursuant to this Agreement, including, but   not limited to the Company’s allocable share of the Advisor’s or its Affiliates’ overhead such as   rent, personnel costs, utilities, cybersecurity and IT costs as well as the following:               9.1.1 Acquisition  Fees  and  Acquisition  Expenses  incurred  in  connection  with  the  selection  and  acquisition  of  Properties,  Loans  and  other  Permitted  Investments  and  Joint  Venture opportunities, including such expenses incurred related to assets pursued or considered  but  not  ultimately  acquired  by  the  Company  or  any  of  its  Subsidiaries,  provided  that,  notwithstanding  anything  herein  to  the  contrary,  the  payment  of Acquisition Fees and  Acquisition  Expenses  by  the  Company  shall  be  subject  to  the  limitations  contained  in  the   Charter;                9.1.2 The actual out-of-pocket cost of goods and services used by the Company  and its Subsidiaries and obtained from entities not Affiliated with the Advisor, including travel,   meals  and  lodging  expenses  incurred  by  the  Advisor  in  performing  duties  associated  with  the   acquisition or origination of Properties, Loans or other Permitted Investments;                9.1.3 Interest and other costs for borrowed money, including discounts, points   and other similar fees;                9.1.4 Taxes  and  assessments  on  income  or  Properties,  taxes  as  an  expense  of   doing business and any other taxes otherwise imposed on the Company and its Subsidiaries and   their business, assets or income;                9.1.5 Out-of-pocket costs associated with insurance required in connection with   the business of the Company or by its officers and Directors or by its Subsidiaries;                9.1.6 Expenses  of  managing,  improving, developing,  operating  and  selling   Properties,  Loans  and  other  Permitted  Investments  owned,  directly  or  indirectly,  by  the   Company, as well as expenses of other transactions relating to such Properties, Loans and other   Permitted Investments, including but not limited to prepayments, maturities, workouts and other   settlements of Loans and other Permitted Investments;                9.1.7 All out-of-pocket expenses in connection with payments to the Board and   meetings of the Board and Stockholders;                9.1.8 Subject to the approval of the Board, costs associated with the Advisor’s   provision  of  services  to  the  Company  that  would  otherwise  be  provided  by  a  third  party,   including,  without  limitation,  Development  Fees  or  Construction  Fees  in  connection  with  the   acquisition  or  development  of  Properties,  Loans,  Permitted  Investments  and  Joint  Venture   opportunities;                                           17  WEST\287276844.2  





 






                 9.1.9 Personnel  and  related  employment  costs  incurred  by  the  Advisor or  its   Affiliates in performing the services described in Section 3 hereof;                9.1.10 Out-of-pocket  expenses  of  providing  services  for  and   maintaining   communications  with  Stockholders, including  the  cost  of  preparation,  printing,  and  mailing   annual  reports  and  other  Stockholder  reports,  proxy  statements and  other  reports  required  by   governmental entities;                9.1.11 Audit, accounting and legal fees, and other fees for professional services   relating to the operations of the Company and its Subsidiaries and all such fees incurred at the   request,  or  on  behalf  of,  the  Board,  the  Conflicts  Committee  or  any  other  committee  of  the   Board;                9.1.12 Out-of-pocket costs for the Company and its Subsidiaries to comply with   all applicable laws, regulations and ordinances;                 9.1.13 Expenses connected with payments of Distributions made or caused to be   made by the Company to the Stockholders or to holders of other securities of the Company;                9.1.14 Expenses  of  organizing,  redomesticating,  merging,  liquidating  or   dissolving the Company or of amending the Charter or the Bylaws; and                9.1.15 All  other  out-of-pocket  costs  incurred  by  the  Advisor  in  performing  its  duties hereunder.         9.2   Advisor  Expenses.   Notwithstanding  the  foregoing,  the  Advisor  shall  be   responsible  for  the  expenses  related  to  any  and  all  personnel  of  the  Advisor  who  provide   investment  advisory  services  to  the  Company  pursuant  to  this  Agreement  or  serve  as  an   executive officer of the Company, including, without limitation, salaries, bonus and other wages,   payroll taxes, and the cost of employee benefit plans of such personnel, and costs of insurance   with respect to such personnel.            9.3   Limitation on Reimbursements.  Commencing upon the earlier to occur of  four   full fiscal quarters after (i) the Company’s acquisition of its first asset or, (ii) six months after the   commencement of the Initial Public Offering, the following limitation on Operating Expenses   shall apply:   The Company shall not reimburse the Advisor at the end of any fiscal quarter for   Operating Expenses that in the four consecutive fiscal quarters then ended (the “Expense Year”)   exceed  (the  “Excess  Amount”)  the  greater  of  2%  of  Average  Invested  Assets  or  25%  of  Net   Income (the “2%/25% Guidelines”) for such year unless the Conflicts Committee determines that   such  excess  was  justified,  based  on  unusual  and  nonrecurring  factors  that  the  Conflicts   Committee deems sufficient.  If the Conflicts Committee does not approve such excess as being   so justified, any Excess Amount paid to the Advisor during a fiscal quarter shall be repaid to the   Company.  If the Conflicts Committee determines such excess was justified, then, within 60 days   after  the  end  of  any  fiscal  quarter  of  the  Company  for  which  total  reimbursed  Operating   Expenses for the Expense Year exceed the 2%/25% Guidelines, the Advisor, at the direction of   the Conflicts Committee, shall cause such fact to be disclosed to the Stockholders in writing (or   the  Company  shall  disclose  such  fact  to  the  Stockholders  in  the  next  quarterly  report  of  the   Company  or  by  filing  a  Current  Report  on  Form  8-K  with  the  SEC within  60  days  of  such                                          18  WEST\287276844.2  





 






     quarter end), together with an explanation of the factors the Conflicts Committee considered in   determining  that  such  excess  expenses  were  justified.   The  Company  will  ensure  that  such   determination will be reflected in the minutes of the meetings of the Board.      10.   Voting Agreement.          The Advisor agrees that, with respect to any Shares now or hereinafter owned by it, the   Advisor  will  not  vote  or  consent  on  matters  submitted  to  the  stockholders  of  the  Company   regarding (i) the removal of the Advisor or any Affiliate of the Advisor or (ii) any transaction   between the Company or its Subsidiaries and the Advisor or any of its Affiliates.  This voting   restriction shall survive until such time that the Advisor is both no longer serving as such and is   no longer an Affiliate of the Company.    11.   Relationship of Advisor and Company; Other Activities of the Advisor.          11.1  Relationship.  The Company and the Advisor are not partners or joint venturers   with each other, and nothing in this Agreement shall be construed to make them such partners or   joint  venturers.   Nothing  herein  contained  shall  prevent  the  Advisor  from  engaging  in  other   activities, including, without limitation, the rendering of advice to other Persons (including other   real  estate  investment  trusts)  and  the  management  of  other  programs  advised,  sponsored  or   organized by the Advisor or its Affiliates.  Nor shall this Agreement limit or restrict the right of   any  manager,  director,  officer, employee  or  equity  holder  of  the  Advisor  or  its  Affiliates  to  engage in any other business or to render services of any kind to any other Person.  The Advisor  may, with respect to any investment in which the Company is a participant, also render advice  and service to each and every other participant therein.  The Advisor shall promptly disclose to  the Board the existence of any condition or circumstance, existing or anticipated, of which it has  knowledge, that creates or could create a conflict of interest between the Advisor’s obligations to  the Company and its obligations to or its interest in any other Person.         11.2  Time Commitment.  The Advisor shall, and shall cause its Affiliates  and  their   respective  employees,  officers  and  agents  to,  devote  to  the  Company  such  time  as  shall  be   reasonably  necessary  to  conduct  the  business  and  affairs  of  the  Company  in  an  appropriate   manner  consistent  with  the  terms  of  this  Agreement.   The  Company  acknowledges  that  the   Advisor and its Affiliates and their respective employees, officers and agents may also engage in   activities unrelated to the Company and may provide services to Persons other than the Company   or any of its Affiliates.          11.3  Investment Opportunities and Allocation.  The Advisor shall be required to use   commercially reasonable efforts to present a continuing and suitable investment program to the   Company  that  is  consistent  with the  investment  policies  and  objectives  of  the  Company  as   described in the most recent prospectus for any Offering of the  Company  (and  subject  to any   limitations  described  in  such  prospectus),  but  neither  the  Advisor  nor  any  Affiliate  of  the   Advisor  shall  be  obligated  generally  to  present  any  particular investment  opportunity  to  the   Company  even  if  the  opportunity  is  of  character  that,  if  presented  to  the  Company,  could  be   taken by the Company.                                             19  WEST\287276844.2  





 






   12.   The Cottonwood Communities Name.         The  Advisor  and  its  Affiliates  have  a  proprietary  interest  in  the  name  “COTTONWOOD.”   The  Advisor  hereby  grants  to  the  Company  a  non-transferable,  non- assignable,  non-exclusive  royalty-free  right  and  license  to  use  the  name  “COTTONWOOD”  during the term of this Agreement. Accordingly, and in recognition of this right, if at any time  the Company ceases to retain the Advisor or one of its Affiliates to perform advisory services for  the  Company,  the  Company  will,  promptly  after  receipt  of  written  request  from  the  Advisor,  cease to conduct business under or use the name “COTTONWOOD” or any derivative thereof  and the Company shall change its name and the names of any of its subsidiaries to a name that  does  not  contain  the  name  “COTTONWOOD”  or  any  other  word  or  words  that  might,  in  the  reasonable discretion of the Advisor, be susceptible of indication of some form of relationship  between the Company and the Advisor or any of its Affiliates.  At such time, the Company will  also make any changes to any trademarks, servicemarks or other marks necessary to remove any  references  to  the  word  “COTTONWOOD.”  Consistent  with  the  foregoing,  it  is  specifically  recognized that the Advisor or one or more of its Affiliates may in the future organize, sponsor  or otherwise permit to exist other investment vehicles (including vehicles for investment in real  estate)  and  financial  and  service  organizations  having  “COTTONWOOD” as a part of their  name,  all  without  the  need  for  any  consent  (and  without  the  right  to  object  thereto)  by  the  Company.   13.   Term and Termination of the Agreement.         13.1  Term.  Subject to Section 4.2 hereof, this Agreement shall continue in full force  until August 13, 2020.  Thereafter, this Agreement may be renewed for an unlimited number of  successive one-year terms upon mutual consent of the parties. The Company (acting through the  Conflicts  Committee)  will  evaluate  the  performance  of  the  Advisor  annually  before  renewing  this Agreement, and each such renewal shall be for a term of no more than one year.  Any such  renewal must be approved by the Conflicts Committee.         13.2  Termination by Either Party.  This Agreement may be terminated upon 60 days  written  notice  without  cause  or  penalty  by  either  the  Company  (acting  through  the  Conflicts  Committee) or the Advisor. The provisions of Sections 1, 4, 10, 12, 13, 15 and 16 shall survive  termination of this Agreement.           13.3  Payments on Termination. Payments to the Advisor pursuant to this Section 13.3  shall be subject to the 2%/25% Guidelines to the extent applicable.  After the Termination Date,  the Advisor shall not be entitled to compensation for further services hereunder except it shall be  entitled to receive from the Company within 30 days after the effective date of such termination  all  unpaid  reimbursements  of  expenses  and  all  earned  but unpaid  fees  payable  to the  Advisor  prior  to  termination  of  this  Agreement,  including  the  Contingent  Acquisition  Fees  and  the  Contingent Financing Fees to the extent payable.         13.4  Duties  of  Advisor  Upon  Termination.   The  Advisor  shall  promptly  upon  termination:                                          20 WEST\287276844.2  





 






                 13.4.1 pay over to the Company all money collected pursuant to this Agreement,   if any, after deducting any accrued compensation and reimbursement for its expenses to which it   is then entitled;                13.4.2 deliver to the Board a full accounting, including a statement showing all   payments collected by it and a statement of all money held by it, covering the period following   the date of the last accounting furnished to the Board;                13.4.3 deliver to the Board all assets and documents of the Company then in the   custody of the Advisor; and                13.4.4 cooperate with the Company to provide an orderly transition of advisory   functions.    14.   Assignment.          This Agreement may be assigned by the Advisor to an Affiliate with the consent of the   Conflicts Committee. The Advisor may assign any rights to receive fees or other payments under   this  Agreement  without  obtaining  the  approval  of  the  Board.  This  Agreement  shall  not  be  assigned  by  the  Company  without  the  consent  of  the  Advisor,  except  in  the  case  of  an  assignment by the Company to a corporation or other organization that is a successor to all of the  assets, rights and obligations of the Company, in which case such successor organization shall be  bound hereunder and by the terms of said assignment in the same manner as the Company is  bound by this Agreement.   15.   Indemnification and Limitation of Liability.          15.1  Indemnification.  Except as prohibited by the restrictions provided in this Section   15.1, Section 15.2 and Section 15.3, the Company shall indemnify, defend and hold harmless the   Advisor and its Affiliates, including their respective officers, directors, equity holders, partners   and employees, from all liability, claims, damages or losses arising in the performance of their   duties hereunder, and related expenses, including reasonable attorneys’ fees, to the extent such   liability, claims, damages or losses and related expenses are not fully reimbursed by insurance.    Any indemnification of the Advisor may be made only out of the net assets of the Company and   not from Stockholders.          Notwithstanding  the  foregoing,  the  Company  shall  not  indemnify the  Advisor  or  its  Affiliates for any loss, liability or expense arising from or out of an alleged violation of federal  or state securities laws by such party unless one or more of the following conditions are met: (i)  there has been a successful adjudication on the merits of each count involving alleged material  securities  law  violations  as  to  the  particular  indemnitee;  (ii)  such  claims  have  been  dismissed  with prejudice on the merits by a court of competent jurisdiction as to the particular indemnitee;  or (iii) a court of competent jurisdiction approves a settlement of the claims against a particular  indemnitee and finds that indemnification of the settlement and the related costs should be made,  and the court considering the request for indemnification has been advised of the position of the  SEC and of the published position of any state securities regulatory authority in which securities  of the Company were offered or sold as to indemnification for violations of securities laws.                                          21  WEST\287276844.2  





 






         15.2  Limitation  on  Indemnification.   Notwithstanding  the  foregoing, the  Company  shall  not  provide  for  indemnification  of  the  Advisor  or  its  Affiliates  for  any  liability  or  loss  suffered by any of them, nor shall any of them be held harmless for any loss or liability suffered  by the Company, unless all of the following conditions are met:               15.2.1 The  Advisor  or  its  Affiliates  have  determined,  in  good  faith,  that  the  course of conduct that caused the loss or liability was in the best interests of the Company.               15.2.2 The  Advisor  or  its  Affiliates  were  acting  on  behalf  of  or  performing  services for the Company.                15.2.3 Such liability or loss was not the result of  negligence or misconduct by  the Advisor or its Affiliates.           15.3  Limitation  on  Payment  of  Expenses.   The  Company  shall  pay  or  reimburse  reasonable legal expenses and other costs incurred by the Advisor or its Affiliates in advance of  the  final  disposition  of  a  proceeding  only  if  (in  addition  to  the  procedures  required  by  the  Maryland  General  Corporation  Law,  as  amended  from  time  to  time)  all  of  the  following  are  satisfied: (a) the proceeding relates to acts or omissions with respect to the performance of duties  or services on behalf of the Company, (b) the legal proceeding was initiated by a third party who  is  not  a  stockholder  or,  if  by  a  stockholder  acting  in  his  or  her  capacity  as  such,  a  court  of  competent jurisdiction approves such advancement and (c) the Advisor or its Affiliates undertake  to repay the amount paid or reimbursed by the Company, together with the applicable legal rate  of interest thereon, if it is ultimately determined that the particular indemnitee is not entitled to  indemnification.    16.   Miscellaneous.         16.1  Notices.  Any notice, report or other communication required or permitted to be  given hereunder shall be in writing unless some other method of giving such notice, report or  other communication is required by the Charter, the Bylaws or is accepted by the party to whom  it is given, and shall be given by being delivered by hand or by overnight mail or other overnight  delivery service to the addresses set forth herein:               To the Company or the Board:                                  Cottonwood Communities, Inc.                    6340 South 3000 East, Suite 500                    Salt Lake City, Utah 84121                            To the Advisor:                                  CC Advisors III, LLC                    6340 South 3000 East, Suite 500                    Salt Lake City, Utah 84121                                            22 WEST\287276844.2  





 






           Either party may at any time give notice in writing to the other party of a change in its   address for the purposes of this Section 16.1.          16.2  Modification.   This  Agreement  shall  not  be  changed,  modified,  terminated  or   discharged, in whole or in part, except by an instrument in writing signed by both parties hereto,   or their respective successors or permitted assigns.          16.3  Severability.  The provisions of this Agreement are independent of and severable   from  each  other,  and  no  provision  shall  be  affected  or  rendered  invalid  or  unenforceable  by   virtue of the fact that for any reason any other or others of them may be invalid or unenforceable   in whole or in part.          16.4  Governing Law; Venue.  This Agreement shall be governed by and construed in   accordance with the internal laws of the State of Utah without regard to any choice of law rules.    Any  action  relating  to  or  arising  out  of  this  Agreement  shall  be  brought  only  in  a  court  of   competent jurisdiction located in Salt Lake City, Utah.          16.5  Entire  Agreement.   This  Agreement  contains  the  entire  agreement  and   understanding among the parties hereto with respect to the subject matter hereof, and supersedes   all prior and contemporaneous agreements, understandings, inducements and conditions, express   or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof.   The express terms hereof control and supersede any course of performance and/or usage of the   trade  inconsistent  with  any  of  the  terms  hereof.  This  Agreement may not be modified or   amended other than by an agreement in writing.          16.6  Waiver.  Neither the failure nor any delay on the part of a party to exercise any   right, remedy, power or privilege under this Agreement shall operate as  a  waiver  thereof,  nor   shall any single or partial exercise of any right, remedy, power or privilege preclude any other or   further  exercise  of  the  same  or  of  any  other  right,  remedy,  power  or  privilege,  nor  shall  any   waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a   waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver  shall be effective unless it is in writing and is signed by the party asserted to have granted such  waiver.         16.7  Gender.   Words  used  herein  regardless  of  the  number  and  gender specifically   used, shall be deemed and construed to include any other number, singular or plural, and any   other gender, masculine, feminine or neuter, as the context requires.          16.8  Titles Not to Affect Interpretation.  The titles of Articles and Sections contained   in this Agreement are for convenience only, and they neither form a part of this Agreement nor   are they to be used in the construction or interpretation hereof.          16.9  Counterparts.  This Agreement may be executed in any number of counterparts,   each of which shall be deemed to be an original as against any party whose signature appears   thereon, and all of which shall together constitute one and the same instrument. This Agreement   shall become binding when one or more counterparts hereof, individually or taken together, shall   bear the signatures of all of the parties reflected hereon as the signatories.                                          23  WEST\287276844.2  





 






         16.10 Binding Effect.  This Agreement shall be binding and inure to the benefit of the  parties and their respective successors and assigns.                                 [Signatures on following page.]                                         24 WEST\287276844.2  





 






         IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date  and year first above written.                                                           REIT:                                                                            Cottonwood Communities, Inc.,                                       a Maryland corporation                                                                                                                  By:                                            Gregg Christensen,                                          Chief Legal Officer                                                                                                                  OPERATING PARTNERSHIP:                                                                            COTTONWOOD COMMUNITIES O.P., LP,                                      a Delaware limited partnership                                                                            By:  Cottonwood Communities, Inc.,                                          a Maryland corporation, its general partner                                                                                                                              By:                                                 Gregg Christensen,                                               Chief Legal Officer                                                                                                                  CC ADVISORS III:                                                                            CC ADVISORS III, LLC,                                      a Delaware limited liability company                                        By:   Cottonwood  Communities  Advisors,  LLC,  a                                           Delaware limited liability, its sole member                                                                                By:  Cottonwood  Capital  Management,  Inc.,                                               a Maryland corporation, its manager                                                           By:                                                     Gregg Christensen,                                                   Chief Legal Officer                                            WEST\287276844.2