Common use of Management Term Clause in Contracts

Management Term. Through December 31, 2013, subject to the right of either party to terminate this Schedule E (with no requirement of Cause [as defined below] or an Acquisition Co. Default [as defined below]) at any time on 90 days prior written notice (the “90 Day Notice’) delivered by the party terminating this Schedule E to the other party; provided that, except in the event of an Acquisition Co. Default, Manager may not deliver a 90 Day Notice prior to October 1st, 2011. In addition, this Schedule E shall automatically terminate on June 30, 2012, in the event of a “Failure to Agree Termination” (as defined in Paragraph 10 below). Notwithstanding the foregoing, the management term and this Schedule E may be terminated at any time by: (i) Acquisition Co. on five (5) business days’ prior written notice for Cause; or (ii) by Manager on five (5) business days’ prior written notice in the event of an Acquisition Co. Default. Furthermore, notwithstanding the foregoing, if Manager delivers a 90 Day Notice to Acquisition Co. which would result in the termination of this Schedule E effective as of any date prior to March 31, 2012, Acquisition Co. shall have the right to provide written notice to Manager, delivered no later than five (5) business days following delivery by Manager of the 90 Day Notice, extending until March 31, 2012 the termination date provided for by Manager in the 90 Day Notice (the period between the effective date of termination set forth by Manager in the 90 Day Notice and March 31, 2012 is referred to herein as the “Extension Period”). Notwithstanding anything contained herein or the Settlement Agreement to the contrary, in the event of a Material Breach (as defined below) by Manager under this Schedule E which occurs during the Extension Period, if applicable, the sole remedy of Acquisition Co. (and KBS) as a result of such Material Breach is: (i) a termination of this Schedule E and the forfeiture by Manager of the Threshold Value Profits Participation (as defined below), such forfeiture being liquidated damages and not as a penalty (it being acknowledged by the parties that actual damages are incapable of being ascertained) and, (ii) the right of Acquisition Co. to seek actual damages against Manager (but no other person or entity) in the event of fraud, misappropriation of funds or embezzlement against Acquisition Co. committed by Manager in its corporate capacity (as distinguished from the acts of any employees of Manager which are taken without complicity of any of the executive officers of Manager) which is not cured within thirty (30) days after notice thereof from Acquisition Co. if and to the extent such actual damages exceed $3,500,000 and any such damages claim must be net of the Threshold Value Profits Participation (valued at $3,500,000) forfeited as described above.