ONE
YEAR.
4.02
TERMINATION.
THIS AGREEMENT WILL AUTOMATICALLY
TERMINATE UPON LISTING.
THIS AGREEMENT ALSO MAY BE TERMINATED AT THE OPTION OF
EITHER PARTY (I) IMMEDIATELY UPON A CHANGE OF CONTROL OR (II) UPON 60 DAYS
WRITTEN NOTICE WITHOUT CAUSE OR PENALTY (IN EITHER CASE, IF TERMINATION IS BY
THE COMPANY, THEN SUCH TERMINATION SHALL BE UPON THE APPROVAL OF A MAJORITY OF
THE INDEPENDENT DIRECTORS).
NOTWITHSTANDING THE FOREGOING, THE PROVISIONS OF
THIS AGREEMENT WHICH PROVIDE FOR PAYMENT TO THE ADVISOR OF EXPENSES, FEES OR
OTHER COMPENSATION FOLLOWING THE DATE OF TERMINATION (I.E., SECTIONS 3.01(E) AND
4.03) SHALL CONTINUE IN FULL FORCE AND EFFECT UNTIL ALL AMOUNTS PAYABLE
THEREUNDER TO THE ADVISOR ARE PAID IN FULL.
4.03
PAYMENTS TO AND DUTIES OF ADVISOR UPON TERMINATION.
(A)
AFTER THE TERMINATION DATE, THE ADVISOR
SHALL NOT BE ENTITLED TO COMPENSATION FOR FURTHER SERVICES HEREUNDER EXCEPT IT
SHALL BE ENTITLED TO AND RECEIVE FROM THE COMPANY WITHIN 30 DAYS AFTER THE
EFFECTIVE DATE OF SUCH TERMINATION ALL UNPAID REIMBURSEMENTS OF EXPENSES,
SUBJECT TO THE PROVISIONS OF SECTION 3.04 HEREOF, AND ALL CONTINGENT LIABILITIES
RELATED TO FEES PAYABLE TO THE ADVISOR PRIOR TO TERMINATION OF THIS AGREEMENT,
PROVIDED THAT THE SUBORDINATED INCENTIVE LISTING FEE, IF ANY, SHALL BE PAID IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.01(E).
UPON TERMINATION, THE SILF
NOTE SHALL BECOME IMMEDIATELY DUE AND PAYABLE AND SHALL BE PROMPTLY PAID BY THE
COMPANY.
IN THE EVENT THE SUBORDINATED INCENTIVE LISTING FEE IS PAID TO THE
ADVISOR FOLLOWING LISTING, NO PERFORMANCE FEE WILL BE PAID TO THE ADVISOR
PURSUANT TO SECTIONS 4.03(B) OR (C) BELOW.
(B)
UPON TERMINATION, UNLESS SUCH TERMINATION IS
BY THE COMPANY BECAUSE OF A MATERIAL BREACH OF THIS AGREEMENT BY THE ADVISOR OR
OCCURS UPON A CHANGE OF CONTROL, THE ADVISOR SHALL BE ENTITLED TO RECEIVE A
PERFORMANCE FEE PAYABLE IN THE FORM OF AN INTEREST BEARING PROMISSORY NOTE (THE
"PERFORMANCE FEE NOTE") IN A PRINCIPAL AMOUNT EQUAL TO THE PRODUCT OF 0.15 TIMES
THE AMOUNT, IF ANY, BY WHICH (I) THE COMPANY VALUE PLUS THE TOTAL DISTRIBUTIONS
PAID TO HOLDERS OF SHARES THROUGH THE TERMINATION DATE, EXCEEDS (II) THE SUM OF
THE AGGREGATE INVESTED CAPITAL PLUS THE STOCKHOLDERS' 9% RETURN THROUGH THE
TERMINATION DATE.
INTEREST ON THE PERFORMANCE FEE NOTE WILL ACCRUE BEGINNING ON
THE TERMINATION DATE AT A RATE DEEMED FAIR AND REASONABLE BY THE INDEPENDENT
DIRECTORS.
THE COMPANY SHALL REPAY THE PERFORMANCE FEE NOTE USING THE ENTIRE
NET SALES PROCEEDS OF EACH SALE AFTER THE TERMINATION DATE UNTIL THE PERFORMANCE
FEE NOTE IS PAID IN FULL, WITH INTEREST.
IF THE PERFORMANCE FEE NOTE HAS NOT
BEEN PAID IN FULL WITHIN FIVE YEARS FROM THE TERMINATION DATE, THEN THE ADVISOR,
ITS SUCCESSORS OR ASSIGNS, MAY ELECT TO CONVERT THE BALANCE OF THE PERFORMANCE
FEE NOTE, INCLUDING ACCRUED BUT UNPAID INTEREST, INTO SHARES AT A PRICE PER
SHARE EQUAL TO THE AVERAGE CLOSING PRICE OF THE SHARES OVER THE TEN TRADING DAYS
IMMEDIATELY PRECEDING THE DATE OF SUCH ELECTION IF THE SHARES ARE LISTED AT SUCH
TIME.
IF