Project Management Agreement

This Project Management Agreement (this “Agreement”) is made as of the , by and between , a (“Client”), and , a (“Manager”). Client and Manager are each called a “Party” and together are called the “Parties”.

Background

Client has entered into that certain Purchase and Sale Agreement, dated on or around the date hereof (the “Purchase Agreement”) to purchase certain real property located in , , which property is more particularly described in the Purchase Agreement (the “Property”).

Client desires to construct an office building and associated improvements on the Property (together, the “Improvements”), as more fully described in this Agreement.

Client desires to engage Manager to assist Client with the design of the Improvements and to manage and oversee on behalf of Client the engineering and construction of the Improvements on the Property by the Contractor, and Manager desires to accept this engagement and provide these services, all as provided in this Agreement.

Agreement

The Parties, desiring to be legally bound, agree as follows:

Recitals, Definitions and Exhibits.

Recitals and Exhibits.

The foregoing Recitals and all Exhibits attached to this Agreement are expressly made a part of this Agreement.

Defined Terms.

Certain capitalized terms and expressions used in this Agreement, including the preamble, the Background Recitals and the Exhibits, will, unless the context otherwise requires, have the following meanings:

“Agreement” is defined in the preamble, and expressly includes all Background Recitals and Exhibits.

Architect” means the architects engaged by Client to design the Improvements.

“Budget” is defined in Section (5.3.d).

“Change Order” is defined in Section 7.3..

“Consultants” means all project consultants other than the Architect, including, but not limited to, the Environmental Engineer, the civil engineer, the mechanical engineer, the electrical engineer, the plumbing engineer, the structural engineer, the landscape architect and the geo-tech/construction materials testing engineer.

Construction Contract” means the definitive written contract to be entered into between Client and the Contractor.

“Contractor” means the general contractor contracted by Client to construct the Improvements, to be selected by Manager and Client as provided in Section (5.4.a).

Costs of Construction” means any and all “hard” and “soft” direct costs and expenditures in connection with the design, engineering and construction of the Improvements, including without limitation the following:

the Services Fee;

amounts paid to the Architect, the Consultants and the Contractor under their respective contracts; and

permit and license fees and other charges of governmental authorities paid solely in connection with or arising out of the design, engineering and construction of the Improvements.

“Entitlements” means all entitlements necessary for the development of the Improvements in accordance with the final site plan and/or other development criteria for the Improvements approved by Client from the appropriate governmental or quasi-governmental authorities.

“Environmental Engineer” means , or another environmental engineer engaged with respect to the Improvements.

“Manager” is defined in the preamble.

“Manager Default” is defined in Section 12.1..

“Lender” means a lender as Client may designate, which will provide the loan to Client for funding the design and construction of the Improvements.

“Client” is defined in the preamble.

“Client Consultant” is defined in Section 8.1..

“Parties” means, collectively, Manager and Client, and either such entity is herein referred to individually as a “Party” as provided in the preamble to this Agreement.

“Plans and Specifications” is defined in Section (5.3.b).

“Related Parties” is defined in Section 11..

“Schedule” is defined in Section (5.3.c).

“Services” is defined in Section 5..

“Services Fee” means .

“Substantial Completion” means the Improvements have been substantially completed in accordance with the Construction Contract so that Client can begin occupying the Improvements, as evidenced by Contractor’s delivery of a certificate of substantial completion to Client and Manager, in form and substance reasonably satisfactory to Client and Manager, and the Entitlements have been obtained by or for Client.

“Term” is defined in Section 2..

“Target Completion Date” means the date set for completion as set forth in the Schedule.

Rules of Construction.

References to numbered or lettered articles, sections and subsections are to articles, sections and subsections of this Agreement unless otherwise expressly stated. The words “herein,” “hereof,” “hereunder,” “hereby,” “this Agreement” and other similar references mean this Agreement and all amendments and supplements hereto unless the context clearly indicates or requires otherwise. Common nouns and pronouns refer to the masculine, feminine, neuter, singular and plural, as the identity of the person may in the context require. Any reference to statutes or laws includes all amendments, modifications or replacements of the specific sections and provisions concerned.

Term.

The term of this Agreement (the “Term”) will commence on the date first written above and, unless sooner terminated as provided in Section 12., will continue until Manager has performed all its Services under this Agreement and Client has paid the Services Fee.

Engagement.

Client engages Manager to assist Client with overseeing the design of the Improvements, and to manage and oversee the engineering and construction of the Improvements on the Property, including all work by the Contractor, in accordance with this Agreement, and Manager accepts this engagement.

Financing.

Manager agrees to assist Client with preparing documents required by a Lender to provide the financing. Manager shall, if requested by Client, provide recommendations for mortgage broker’s to be engaged by Client to assist Client in obtaining financing from a Lender. Client acknowledges that Manager is not a mortgage broker and the Services Fees are not being paid to Manager in connection with the assistance Manager is providing pursuant to this Section 4.

If required by Client to obtain a loan from the Lender, Manager shall provide a completion guaranty to the Lender, which shall be on terms satisfactory to Manager in the exercise of its sole discretion, provided (a) upon the issuance of a certificate of occupancy for the Improvements, Manager shall be released from such Guaranty, (b) any equity required to be contributed by Client by the Lender shall be paid by Client and applied to Costs of Construction before the proceeds of the Loan, and (c) Client shall indemnify and hold Manager harmless from any amounts Manager is required to pay under such guaranty pursuant to a separate agreement which shall be in form and substance satisfactory to Manager, which indemnity shall be secured by a second lien in favor of Manager against the Property. The cost and expense of all financing shall be borne by Client and is a Cost of Construction

Manager’s Services.

In return for the Services Fee, Manager will assist Client and the Architect with the design of the Improvements and, in consultation with Client, will initiate, coordinate and administer all planning, design, engineering, construction and other activities in connection with the construction of the Improvements, as more fully described in this Section 5, subject to the terms and conditions of this Agreement (the “Services”).

Personnel.

Manager hereby assigns as its authorized representative, with general responsibility for Manager’s Services hereunder, and as construction manager. If or are unable to serve or ceases to serve for any reason, then within 0 days Manager will provide a replacement who is reasonably acceptable to Client.

Manager will provide and supervise at its expense all other personnel reasonably necessary to provide the Services, who will be properly trained and qualified to perform their respective job functions.

General Services.

Manager will supervise the work of the Architect, the Consultants and the Contractor, and promptly notify Client if Manager recognizes that the work product of any of these parties is at variance with the Plans and Specifications, or with applicable laws, codes, or regulations. Further, Manager will use commercially reasonable efforts to enforce compliance by the Architect, the Contractor and the Consultants with the Schedule, the Budget and all other requirements of their respective contracts; provided that Manager will have no obligation to initiate or pursue any lawsuit, mediation, arbitration or other legal proceeding against any party.

Pre-Construction Services.

Manager will assist Client in negotiating with the Architect a contract reasonably acceptable to Client, for execution by the Architect and Client.

Manager will assist Client, the Architect and the Consultants to develop the scope and design of the Improvements for review and approval by Client, including, without limitation, its structural, mechanical, electrical, plumbing, heating and cooling systems. Once approved by Client, all final working plans, drawings and specifications for the Improvements shall be attached as Exhibit A. The plans and specifications listed from time to time on Exhibit A, as they may be modified as provided in Section 7. below, are called the “Plans and Specifications”. All changes to the Plans and Specifications are subject to Client’s approval. The Parties will from time to time update Exhibit B to include new Plans and Specifications as they become available and are approved by Client. Manager will consult with Client, the Architect, the Consultants, the Contractor, and the other parties as appropriate to further develop and refine the Plans and Specifications as necessary to construct the Improvements, and will submit the Plans and Specifications to Client for its review and approval from time to time as such documents are developed, in accordance with Section 7.

In connection with the completion of the Plans and Specifications, Manager shall assist Client in developing a construction schedule (the “Schedule”) which results in timely completion of construction consistent with compliance with the Budget, which schedule shall be subject to the approval of Client. Once approved by Client, the Schedule will be attached hereto as Exhibit B.

Manager shall assist Client in developing a construction budget based on the Plans and Specifications and Schedule (the “Budget”). Manager will provide input on various line items, including an appropriate contingency line item which can be applied to cost overruns and items not accounted for in the Plans and Specifications. Once approved by Client, the Budget will be attached hereto as Exhibit C.

Manager will update and revise the Budget and Schedule in consultation with Client during the design, engineering and contract bidding process to reflect alternates selected by Client, bids submitted by contractors, and schedule estimates provided by the Contractor and the Consultants. All changes to the Budget and Schedule are subject to approval by Client.

Manager will assist Client in obtaining all permits and approvals required to commence and complete construction of the Improvements in accordance with the Plans and Specifications and all applicable laws and private restrictions. For that purpose, Manager will coordinate with Client, the Architect, the Consultants and the Contractor, the receipt of all necessary public and private approvals for the Improvements including, as applicable, city planning, site plan and land development plan approvals and other legal requirements applicable to the Improvements. Manager will also use commercially reasonable efforts to obtain any rezoning and re-platting required in connection with the development of the Improvements.

Manager agrees to reasonably cooperate and assist Client in efforts to obtain from the State, such tax credits, reimbursements or such other incentives as may be made available to Client because of the construction of the project.

Construction Management Services.

Manager will assist Client in selecting a Contractor and the necessary and appropriate Consultants, in consultation with and for review and approval by Client, using a selection process reasonably acceptable to Client. Client will advise Manager of Client’s bonding requirements prior to the bidding process so the bidders may include the cost of such bonds.

Manager will negotiate with the Contractor a Construction Contract reasonably acceptable to Client and Manager, for review and approval by Client and execution by Contractor and Client. The Construction Contract will be based on Manager’s standard form with modifications that are commonly found in the marketplace or otherwise requested by Client. Once signed, the Construction Contract may only be modified pursuant to the mutual agreement of Manager and Client.

Manager and Client will together determine the appropriate structure for contracting with each Consultant (i.e., whether Client will contract directly with each Consultant, through the Architect, or through the Contractor).

If Manager and Client agree that a construction contract, engineering contract or other agreement other than the Construction Contract is necessary or appropriate for the engineering or construction of a portion of the Improvements, the requirements of this Agreement will apply to that separate contract to the same effect as if references in this Agreement to the Construction Contract and the Contractor were instead references to that separate contract and the contractor thereunder.

If any agreement is required in connection with the construction of the Improvements that requires execution by Client as the owner of the Property or Improvements (including, by way of example, easements and agreements with utility companies), Manager will submit such agreement, with Manager’s recommendations, to Client for its approval and execution.

In consultation with Client, and after the necessary design and engineering work is completed, the required permits and approvals obtained and the Construction Contract has been executed by Client and the Contractor, Manager will cause the Contractor to commence and diligently pursue construction of the Improvements substantially in accordance with the Budget, the Schedule and the Plans and Specifications.

During construction of the Improvements, with due reliance upon and assistance from the Consultants, Manager will exercise general management of construction, and as part thereof will perform the following Services:

Provide direction to the Contractor and the Consultants;

Provide to Lender such information relating to the design and construction of the Improvements as Client or Lender reasonably may request;

Use commercially reasonable efforts to guard Client against any defects or deficiencies in the work of the Contractor or any other contractors or subcontractors, including the appropriate inspection and testing, the expense of which shall be included in the Budget;

Reject any work that does not or materials that do not, in Manager’s reasonable opinion, materially conform to the appropriate contract documents, and recommend to Client action to be taken in respect thereof;

Cause the correction of defective or non-conforming work known to or discovered by Manager, at no cost to Manager or Client;

Review and approve shop drawings, samples and other submissions of the Contractor for conformance with the Plans and Specifications and the compliance with the appropriate contract documents;

Assemble and review each application for payment from the Contractor and invoices from other persons providing labor, material or services for the Improvements in a form reasonably acceptable to Lender, and recommend to Client and Lender the proper amount to be paid to such payees;

Obtain from the Contractor all required lien waivers and all other documentation as provided for in the Construction Contract or otherwise reasonably requested by Lender;

Consult with Client, the Architect and relevant Consultants if either Contractor or any contractor or subcontractor requests interpretations of the meaning and intent of the Plans and Specifications, and assist in the resolution of any questions which may arise;

On application for final payment by the Contractor, make a final inspection of the work, cause the Contractor to assemble and deliver to Client any written guaranties, releases, bonds and waivers, instruction books, diagrams and charts required by the appropriate contract documents, and issue to Client and Lender Manager’s recommendation for final payment;

Coordinate the installation of the utilities with the appropriate utility companies;

Coordinate obtaining any required agreements with government agencies;

Receive and confer with Client regarding response to all notices, claims and pertinent correspondence, and cause the Contractor to provide Client with copies of warranties, guarantees and a set of as-built drawings and sepias of the Improvements at completion;

Attend weekly design team and construction meetings;

Coordinate with Client in confirming the Contractor timely engages and contacts for necessary work with all key subcontractors and timely orders key materials required for the construction of the Improvements so as to avoid any substantive delays in the Schedule; and

Prepare a soils grading plan acceptable to both Client and Manager, pursuant to which an amount of displaced soils moved during construction of the Improvements are relocated on the Property, or, in an amount not to exceed cubic yards of displaced soils, on adjacent properties within the larger project controlled by Manager or its affiliates, and assure that such relocation of displaced soils is in accordance with EPA standards applicable to this Property and or the adjacent properties within the larger project, to which these displaced soils might be removed. Neither Manager nor its affiliates shall be required to accept soils on its properties which are required to be remediated at a separate site by the EPA.

Perform such other additional development and construction management functions as are commercially appropriate to accomplish the orderly and proper construction of the Improvements substantially in accordance with the Budget and the Schedule, as the same may be amended from time to time as provided in this Agreement.

Completion.

Manager will use commercially reasonable efforts to cause Substantial Completion of the Improvements by the Target Completion Date; provided that Manager will have no liability to Client if Substantial Completion is not achieved by the Target Date, except to the extent of a material breach by Manager of its obligations under this Agreement. Client recognizes that Substantial Completion may be delayed due to causes which Manager cannot reasonably control or circumvent including, without limitation, the acts or omissions of Contractor or subcontractors, combined action of workers, strikes, embargoes, fire, casualties, a moratorium on construction, delays in transportation, governmental delays in granting permits or approvals, governmental actions beyond Manager’s reasonable control, the material and unanticipated unavailability or shortage of materials, national emergency unusually severe weather conditions, and delays caused by Client, including, any delays caused by Client’s failure to timely respond to any matter submitted to Client for Client’s consent.

Manager will promptly notify Client when Manager considers the Improvements to be substantially complete. Promptly after such notice Manager and, if Client desires, representatives of Client may inspect the Improvements with Manager to prepare a “punch list” of unfinished items for submission to the applicable Contractor. Manager will coordinate and administer the completion of all items on the punch list by the Contractor as soon as practical.

Performance Standards.

Manager will render the Services in a manner consistent with the level of skill and care ordinarily exercised by commercial real estate development and construction management professionals. Notwithstanding any other provision of this Agreement to the contrary, Client acknowledges that (a) the services and work product provided by Architect, the Consultants and the Contractor, as contemplated hereby, are the responsibility of such parties, and (b) Manager neither warrants nor guarantees their performance. While Manager will use commercially reasonable efforts to assure compliance by the Architect, the Consultants and the Contractor with their respective contracts as set forth above Manager shall have no obligation to initiate or pursue any lawsuit, mediation, arbitration or other legal proceeding against such parties. If Client remains unsatisfied with the work of any of these parties, Client may pursue its remedies against them.

Client Representative.

Client hereby assigns and as its authorized representatives. Client may designate additional representatives or replace its representative by written notice to Manager. Client’s representative, as designated under this Section 6, has authority to approve all matters under this Agreement. If such person is unable to serve or ceases to serve for any reason, then within 0 days after such person ceases to serve in the indicated capacity, Client will designate a replacement. Manager shall be entitled to rely on any consent or authorization given by Client’s representative who has been appointed pursuant to this Section 6.

Approvals; Change Orders.

Plans and Specifications.

All changes to the Plans and Specifications will require Client’s approval. Client will review and approve or disapprove Plans and Specifications submitted to it within business days after receipt. If Client disapproves any Plans and Specifications, it will inform Manager of the reasons for such disapproval and the changes, if any, which if made would cause Client to grant approval of such Plans and Specifications. If Client has not advised Manager in writing of its disapproval of a submission within business days following its receipt, such submission will be deemed not approved by Client.

Other Contracts.

All contracts and instruments to be signed by Client, including the Construction Contract and any contract or other instrument submitted to it under Section (5.4.e), will be subject to review and approval by Client. Client will approve or disapprove each contract or instrument as expeditiously as possible following receipt by Client of it and all information reasonably required to evaluate it, including, as applicable, land surveys, engineering data or other items.

Changes Proposed by Manager.

All changes to or under contracts with the Architect or any Consultant, and to or under the Construction Contract (each, a “Change Order”), will require Client’s approval (which may be by e-mail). Manager will send written notice of the Change Order to Client’s Consultant in a manner agreed to between Client and Manager, and the Change Order will specify the changes in sufficient detail to inform Client of the nature of the Change Order and the effects, if any, the Change Order will have on the Schedule. Client will approve or reject a Change Order by providing written notice to Manager of such decision within business days of receipt of a proposed Change Order. If Client rejects a proposed Change Order, Client will provide to Manager the reasons for the rejection and any alterations to the Change Order, which if made, would cause Client to accept it. If Client has not rejected or approved a proposed Change Order in writing within business days following its receipt by Client, then Manager may send a second notice to Client requesting a decision with respect to the Change Order.

If Client fails to provide written notice to Manager of its approval or rejection of the Change Order within 0 days after such second notice, Manager will consider the Change Order as rejected by Client. To reduce the possibility of delay, Manager will promptly forward to Client all Plans and Specifications, Change Orders and other items requiring Client’s approval.

Changes Requested by Client.

If at any time Client desires a change in the Plans and Specifications, it may request Manager to coordinate with the Contractor the preparation of a Change Order proposal stating the increase, if any, in the contract sum payable under the Construction Contract and the change, if any, in the Schedule if the change is implemented. Manager will supplement such Change Order proposal with proposed changes to the Budget and Schedule, if required, to reflect the changes requested by Client, and submit the same for Client’s approval. Client will have business days following receipt of such materials within which to respond to Manager regarding the proposed Change Order.

Effect on Budget and Schedule.

If Client approves any Change Order, Client’s written acceptance will constitute authorization to Manager to amend the Budget and Schedule as specified in the approved Change Order.

Inspection.

Client’s Consultant.

Client its own expense, has retained as its consultant to review the Plans and Specifications and inspect the progress of construction (the “Client Consultant”) and to work with Manager and the Contractor, the Architect and other consultants and subcontractors to assure that the Improvements are constructed in a workmanlike and timely manner according to the Schedule.

Right to Inspect Construction.

Client, Lender, and any Client Consultant may enter the Property at any during the course of construction to observe the construction of the Improvements and inspect the progress, quality and conformance of the work. Client’s, Lender’s or Client Consultant’s inspection of, or failure to inspect, approval of, or agreement to the performance of any part of the work will in no way relieve the Contractor of full responsibility for the performance of its work. Client will, and will cause Lender and any Client Consultant to, exercise this right of entry and inspection in a manner so as not to interfere unreasonably with or delay the work to be performed by the Contractor.

Manager’s Obligations.

Manager will make available to Client, Lender, and any Client Consultant, copies of all Plans and Specifications and all Change Orders, including field changes, and advise Client and any Client Consultant of all scheduled job site meetings. Upon Client’s request, Manager will provide Client, Lender, and any Client Consultant with copies of project schedules, job minutes and other information reasonably required by Client, Lender or the Client Consultant to evaluate the quality and progress of the work.

Costs of Construction.

Client Expense.

The Improvements will be built at Client’s sole cost and expense.

Requisition Package; Payment.

Manager will assemble and submit to Client on or about the day of each calendar month a requisition package containing the request for payment for the applicable portion of the Costs of Construction, which has been submitted by the Contractor and approved by Manager, invoices from the Consultants, and invoices for any other third party Costs of Construction then due in connection with the Improvements. The requisition package will also include (i) a monthly and “to date” summary of the Costs of Construction and other costs incurred, (ii) a reconciliation with the Budget, and (iii) the amount of the Services Fee incurred “to date”, which amount will be paid in accordance with the schedule attached hereto as Schedule 1 (including all pre-construction items). Manager will be deemed to concur with the Contractor’s certifications of the Improvements’ stage of completion as indicated on the Contractor’s applications for payment, unless otherwise noted in the requisition package. Manager will review each invoice included in a requisition package for conformity with the applicable contract provisions.

Client will fund the requisitioned portion of the Services Fee, to Manager, and the balance directly to Contractor, Consultant or other third party (as specified by Manager in the requisition package) within 0 days of Client’s receipt of the properly executed requisition package, provided that the requisition complies with the requirements of this Agreement and the included invoices comply with the requirements of, as applicable, Lender, the Construction Contract, and the contracts with such other third parties. Manager will have sole rights to the percentage of the Services Fee paid as part of the requisition package.

Limitation on Expenditures.

Except for expenditures made and obligations (a) incurred in accordance with the approved Budget, (b) incurred pursuant to change orders approved in writing or deemed approved or permitted by Client, or (c) otherwise approved in advance by Client, Manager will not have the power or authority to make any expenditure or incur any expense or obligation on behalf of Client in connection with development of the Improvements, excepting in the case of the unavailability of Client in the face of an emergency affecting the safety of persons or property in connection with the Improvements, and then only to the extent reasonably necessary during the period of such emergency. Manager will notify Client promptly of any such emergency and the amount expended in connection therewith.

Insurance.

Manager Insurance.

Manager at its expense will secure and keep in force at all times during the Term and while Services are being performed under this Agreement, the following insurance coverages and their respective minimum limits:

Worker’s Compensation & Employer’s Liability Insurance - Workers’ Compensation Insurance, with applicable statutorily required limits; and Employer’s Liability Insurance, with minimum limits of per occurrence and in the aggregate;

Commercial General Liability Insurance - Combined Bodily Injury Liability, Including for Death, and Property Damage Liability, with a combined single limit of not less than per occurrence and in the aggregate, including Contractual Liability (to cover Manager’s indemnification obligations contained in this Agreement); and

Excess Liability Insurance - Excess or umbrella liability policy(ies) with a combined single limit of at least per occurrence in excess of the limits of the above specified Commercial General Liability coverage.

The insurance policies to be obtained by Manager will be endorsed to provide that Client is an additional insured. Such insurance policies will be primary without right of contribution from any other insurance maintained by Client unless due to Client’s gross negligence or willful misconduct.

Client Insurance.

Client at its expense will secure and keep in force during the Term the following insurance coverages and their respective minimum limits:

Commercial General Liability Insurance. Combined Bodily Injury Liability, including for Death, and Property Damage Liability, with a combined single limit of not less than per occurrence and in the aggregate, including Contractual Liability (to cover Client’s indemnification obligations contained in this Agreement); and

Excess Liability Insurance. Excess or umbrella liability policy(ies) with a combined single limit of at least per occurrence in excess of the limits of the above specified Commercial General Liability coverage.

The insurance policies obtained by Client above will be endorsed to provide that Manager is an additional insured. Such insurance policies will be primary without right of contribution from any other insurance maintained by Manager, unless due to Manager’s gross negligence or willful misconduct.

Certificates.

Promptly after the execution of this Agreement, each Party will provide the other with Certificates of Insurance confirming that the required coverages are in effect and will subsequently provide the other Party with replacement Certificates of Insurance 0 days prior to the renewal date of each of such policies. Each Certificate of Insurance will provide that the insurance company will give the certificate holder 0 days prior written notice of the cancellation of or material change to any such insurance policy. The insurance required to be provided pursuant to this Section may be provided under so called blanket policies of insurance so long as (i) the coverage afforded to the other Party to this Agreement will not be reduced or diminished by reason of the use of such blanket policy and (ii) all of the requirements set forth in this Section with respect to such insurance are otherwise satisfied.

Additional Insurance.

Nothing contained in this Agreement will limit the right of Manager or Client to obtain additional insurance coverage which will be at the sole cost and expense of the Party obtaining it and will be of a nature which does not impair the coverage afforded by policies maintained by the other Party.

Contractor Insurance.

The Construction Contract will require the Contractor to provide and maintain such insurance, and with such policy provisions, terms and conditions, as upon which Client and Manager may agree.

Indemnification.

Each Party will indemnify, defend and hold harmless the other Party, its parent, subsidiaries, affiliates, successors and assigns and each of their officers, directors, shareholders and employees (“Related Parties”) from any damage to property, any injury to person (including death), and any direct demands, claims, expenses, fines and losses of any type (including, but not limited to reasonable attorneys’ fees and litigation expenses) to the extent resulting from (a) the indemnifying Party’s or its Related Parties’ negligence, gross negligence or willful misconduct in performing or failing to perform its obligations under this Agreement, (b) the indemnifying Party’s or its Related Parties’ breach of any representation, warranty or covenant contained in this Agreement or in any of its Exhibits, or (c) the indemnifying Party’s or its Related Parties’ failure to comply with applicable law. To the extent any claims, damages, etc. are jointly caused by the acts or omissions of the Parties, such claims will be apportioned between the Parties on a pure comparative negligence basis.

Default and Termination.

Default by Manager.

“Manager Default” means any one of the following: (i) any material representation or warranty by Manager in this Agreement is false or misleading in a material respect; (ii) Manager commits fraud towards Client or the Improvements; or (iii) if Manager fails to perform or fulfill any of its obligations under this Agreement not specifically covered by clauses (i) and (ii) above and such default continues uncured for more than 0 days after written notice thereof by Client to Manager specifying such default. If Manager has not completed a cure of a non-monetary default after diligent good faith efforts during such time period, such 0 days cure period will be extended for up to an additional period of time as is reasonably necessary so that Manager may have the opportunity to complete such cure, not to exceed an additional 0 days.

If a Manager Default occurs, Client may, without prejudice to any other right or remedy, and after giving Manager business days’ written notice, exercise either or both of the following remedies:

Terminate this Agreement and designate another firm to assume the role of Manager of the Improvements; and/or

Exercise any other remedies at law or equity available to Client.

If Client elects to terminate this Agreement upon a Manager Default, Manager will not be entitled to receive any further payments under this Agreement; provided, that Manager will be paid all payments due and payable prior to such termination. Client’s exercise of any remedy, whether provided herein or otherwise, is without prejudice to any other remedy available to Client hereunder, or by law, statute or in equity, it being understood that all such remedies are reserved and may be pursued individually or cumulatively and as often as is necessary.

Automatic Termination.

This Agreement will automatically terminate, without any notice or other action to be taken by a Party, upon the occurrence of any of the following: (a) the other Party applies for or consents to the appointment of a receiver, trustee or liquidator of all or a substantial portion of the other Party’s assets; (b) the other Party files a petition in bankruptcy; (c) the other Party files an answer admitting the material allegations of a petition filed against it in bankruptcy, reorganization or insolvency proceedings, or entry of an order, judgment or decree against the other Party by a court of competent jurisdiction, on the application of a creditor, adjudicating the other Party bankrupt or insolvent or approving a petition seeking reorganization of the other Party or appointing a receiver, trustee or liquidator of all or a substantial portion of the other Party’s assets, and continuation of such order, judgment or decree unstayed for 0 days or longer; (d) the other Party admits, in writing, to its inability to pay its debts as they become due; (e) the other Party makes a general assignment for the benefit of its creditors; or (f) the other Party files a petition or answer seeking reorganization or arrangement with creditors or to take advantage of any insolvency law.

Termination upon Condemnation.

This Agreement will automatically terminate if the Property or the Improvements are taken in whole or in substantial or material part by condemnation.

Default by Client.

If Client fails to perform any of its obligations under this Agreement, Manager may, without prejudice to any other right or remedy, and after giving Client 0 days’ written notice, provided, if Client has not completed the cure of a non-monetary default within such 0 days period after diligent good faith efforts during such time period, such 0 days cure period will be extended for up to an additional period of time as is reasonably necessary so that Client may have the opportunity to complete such cure, not to exceed an additional 0 days:

terminate this Agreement; and/or

exercise any other remedies at law or equity available to Manager.

Termination of Purchase Agreement.

In the event the Purchase Agreement is terminated, this Agreement will automatically terminate, except that, Client shall pay all Costs of Construction, including all Services Fees in accordance with Schedule 1 which were incurred prior to the date of such termination.

Representations and Warranties.

By Manager.

To induce Client to execute, deliver and perform this Agreement, Manager represents and warrants to Client:

Manager is a duly organized, validly existing and in good standing under the laws of the State of and has the full right, power and authority to enter into this Agreement and to perform all of the obligations and liabilities of Manager required to be performed hereunder.

This Agreement has been duly and validly executed and delivered by and on behalf of Manager and, assuming the due authorization, execution and delivery thereof by and on behalf of Client, constitutes a valid, binding and enforceable obligation of Manager enforceable in accordance with its terms. The foregoing representation and warranty is qualified to the extent the enforceability of this Agreement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws of general application affecting the rights of creditors in general.

Neither the execution and delivery hereof, nor the taking of any actions contemplated hereby, will conflict with or result in a breach of any of the provisions of, or constitute a default, event of default or event creating a right of acceleration, termination or cancellation of any obligation under any instrument, note, mortgage, contract, judgment, order, award, decree or other agreement or restriction to which Manager is a party, or by which Manager or the Improvements are a party or otherwise bound.

By Client.

To induce Manager to execute, deliver and perform this Agreement, Client represents and warrants to Manager:

Client is a duly organized, validly existing and in good standing under the laws of the State of , with full right, power and authority to enter into this Agreement, and to perform all of the obligations and liabilities of Client required to be performed hereunder.

This Agreement has been duly and validly executed and delivered by and on behalf of Client, and, assuming the due authorization, execution and delivery thereof by and on behalf of Manager, constitutes a valid, binding and enforceable obligation of Client enforceable in accordance with its terms. The foregoing representation and warranty is qualified to the extent the enforceability of this Agreement may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws of general application affecting the rights of creditors in general.

Neither the execution and delivery hereof, nor the taking of any actions contemplated hereby, will conflict with or result in a breach of any of the provisions of, or constitute a default, event of default or event creating a right of acceleration, termination or cancellation of any obligation under any instrument, note, mortgage, contract, judgment, order, award, decree or other agreement or restriction to which Client is a party or by which Client, or the Improvements, are otherwise bound.

General Provisions.

Assignment.

Client may assign this Agreement to a parent, subsidiary, a Person acquiring substantially all of the assets of , or sister corporation upon written notice to Manager. Otherwise, neither Party may assign its rights or obligations hereunder without the prior written consent of the other Party. Subject to this restriction, this Agreement is binding upon and will inure to the benefit of the Parties and their respective successors and assigns.

Entire Agreement.

This Agreement embodies the entire agreement and understanding among the Parties relating to the subject matter hereof and supersedes all prior agreements and understandings related to such subject matter, and it is agreed that there are no terms, understandings, representations or warranties, express or implied, relating to such subject matter other than those set forth herein.

Captions.

The descriptive headings of the sections of this Agreement are inserted for convenience only. They are not intended to and may not be construed to limit, enlarge or affect the scope or intent of this Agreement or the meaning of any provision hereof.

Notices.

All notices, approvals, consents, waivers, directions, requests or communications must be in writing and signed by the Party giving the same and, except for construction and leasing related communications in the normal course, which may be by email, will be deemed properly given only if hand delivered or sent by reputable overnight courier, or by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:

If to Manager:

Attn:

With courtesy copies (which will not constitute notice) to:

Attn:

If to Client:

With a courtesy copy (which will not constitute notice) to:

or to such other address as a Party may from time to time designate in writing to the other Party as provided above. Notices will be deemed given upon receipt or refusal of delivery.

Limitation of Liability.

Client.

No shareholder, director, officer, employee, agent or affiliate of Client will in any manner be personally or individually liable for the obligations of Client hereunder.

Manager.

No member, manager, officer, employee, agent or affiliate of Manager will in any manner be personally or individually liable for the obligations of Manager hereunder. Manager will not be liable to Client with respect to any damage, loss, claim or expense arising from or related to Client’s failure to approve any action, decision or other matter related to the Improvements.

Limitation on Damages.

Neither Party, nor its officers, directors, shareholders, partners, affiliates or employees, will be liable to the other Party (or its officers, directors, shareholders, partners, affiliates or employees) for such other Party’s special, incidental, or consequential loss or damage (excluding general damages), including without limitation loss of profits or loss of use of capital or revenue under any circumstance (even if that Party has been advised of or has foreseen the possibility of such damages), whether the claim arises in tort, contract, or otherwise under this Agreement.

Time is of the Essence.

Time is of the essence in all aspects of the performance of the obligations hereunder.

Waiver.

No failure by Client or Manager to insist on the strict performance of any obligation, covenant, agreement, term or condition of this Agreement, or to exercise any right or remedy available upon a breach of this Agreement, will constitute a waiver, and no breach will be waived, altered or modified, except by written instrument.

Governing Law.

This Agreement and the rights and obligations of the Parties are governed by and will be construed and enforced in accordance with the laws of the State of .

Venue.

Each of the Parties consents to the jurisdiction of any Federal or State court in , , for any action arising out of matters related to this Agreement. Each of the Parties waives the right to commence an action in connection with this Agreement in any court outside of , .

Waiver of Jury Trial.

Each Party waives trial by jury in any action arising out of matters related to this agreement, which waiver is informed and voluntary.

Attorney’s Fees.

In the event of any controversy, claim or dispute between the Parties affecting or relating to the purposes or subject matter of this Agreement, the Party substantially prevailing on any claim will be entitled to recover from the other Party all of its claim-related reasonable expenses, including reasonable attorneys’ and accountants’ fees, including in any bankruptcy or appellate proceedings.

Counterparts.

This Agreement may be executed in multiple counterparts, each of which is an original and all of which together constitute one and the same document.

Cooperation.

Manager will cooperate with and assist Client in connection with any demand, claim, action or controversy involving the Contractor, any Consultant, subcontractor or any other person or party providing any service or material with respect to the Improvements.

In Witness Whereof, the Parties have executed this Agreement as of the date and year first above written.

Manager

Signature pending

Client