DURING SUCH PERIOD. NOTWITHSTANDING
THE FOREGOING, IF THERE IS AN EXCESS AMOUNT IN ANY EXPENSE YEAR AND THE
INDEPENDENT DIRECTORS DETERMINE THAT SUCH EXCESS WAS JUSTIFIED, BASED ON UNUSUAL
AND NONRECURRING FACTORS WHICH THEY DEEM SUFFICIENT, THE EXCESS AMOUNT MAY BE
REIMBURSED TO THE ADVISOR. WITHIN 60 DAYS AFTER THE END OF ANY FISCAL QUARTER OF
THE COMPANY FOR WHICH THERE IS AN EXCESS AMOUNT WHICH THE INDEPENDENT DIRECTORS
CONCLUDE WAS JUSTIFIED AND REIMBURSABLE TO THE ADVISOR, THERE SHALL BE SENT TO
THE STOCKHOLDERS A WRITTEN DISCLOSURE OF SUCH FACT, TOGETHER WITH AN EXPLANATION
OF THE FACTORS THE INDEPENDENT DIRECTORS CONSIDERED IN DETERMINING THAT SUCH
EXCESS AMOUNT WAS JUSTIFIED. SUCH DETERMINATION SHALL BE REFLECTED IN THE
MINUTES OF THE MEETINGS OF THE BOARD. THE COMPANY WILL NOT REIMBURSE THE ADVISOR
OR ITS AFFILIATES FOR SERVICES FOR WHICH THE ADVISOR OR ITS AFFILIATES ARE
ENTITLED TO COMPENSATION IN THE FORM OF A SEPARATE FEE. ALL FIGURES USED IN ANY
COMPUTATION PURSUANT TO THIS SECTION 3.04 SHALL BE DETERMINED IN ACCORDANCE WITH
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES APPLIED ON A CONSISTENT BASIS.
ARTICLE IV
TERM AND TERMINATION
4.01
TERM; RENEWAL. SUBJECT TO SECTION 4.02 HEREOF,
THIS AGREEMENT SHALL CONTINUE IN FORCE UNTIL THE FIRST ANNIVERSARY OF THE DATE
HEREOF. THEREAFTER, THIS AGREEMENT MAY BE RENEWED FOR AN UNLIMITED NUMBER OF
SUCCESSIVE ONE-YEAR TERMS UPON MUTUAL CONSENT OF THE PARTIES. IT IS THE DUTY OF
THE BOARD TO EVALUATE THE PERFORMANCE OF THE ADVISOR ANNUALLY BEFORE RENEWING
THE AGREEMENT, AND EACH SUCH RENEWAL SHALL BE FOR A TERM OF NO MORE THAN 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