Common use of Tenants in Common Clause in Contracts

Tenants in Common. (a) Each Borrower shall timely perform all of its obligations under the TIC Agreement. Borrower shall give prompt written notice to Lender of any default under the TIC Agreement. (b) Borrower shall not terminate, cancel, amend, modify, renew or extend the TIC Agreement, or add new parties thereto, or enter into any other agreement relating to the ownership, management or operation of the Property without the prior written consent of Lender and Lender’s receipt of a Rating Agency Confirmation. Any violation of the foregoing shall be an automatic Event of Default hereunder. Borrower covenants and agrees that Lender shall be and hereby is made an intended third party beneficiary of the TIC Agreement. Notwithstanding the foregoing, any action (or inaction) by a Borrower that constitutes an Event of Default hereunder, although such action (or inaction) is permitted under the terms of the TIC Agreement, shall nevertheless constitute an Event of Default hereunder and shall not be deemed waived by virtue of such action (or inaction) being permitted under the TIC Agreement. (c) Notwithstanding any provisions of applicable Legal Requirements or the TIC Agreement to the contrary, until the indefeasible payment and discharge in full of the Debt, each Borrower agrees, jointly and severally, that it shall not (and hereby waives, to the fullest extent possible under applicable law, any right to) file, commence, seek or prosecute an action for partition or forced sale of the Property and/or Improvements or any portion thereof. (d) It is agreed by each Borrower that Medalist Fund Manager, Inc. (i) at all times during the term of the Loan, shall act, directly or indirectly, as the operating manager for the Property on behalf of Borrower, (ii) is authorized to be the sole contact and notice party for the Lender with respect to the Loan and shall act as each Borrower’s attorney-in-fact to receive all notices, including, without limitation, service of process for each Borrower and (iii) shall keep all books and records pertaining to the Loan separate from any other property of any other Borrower. (e) During the term of the Loan, each Borrower hereby waives any and all security interests and rights to impose a lien (including, without limitation, with respect to capital calls) under the TIC Agreement, and any other rights arising from state law, against the Property and the interests of any other party to the TIC Agreement. Each Borrower hereby waives any and all rights of subrogation, reimbursement, contribution, indemnity or otherwise arising by contract or operation of law (including, without limitation, any lien rights) from or against any other Borrower until the Loan is paid in full and all Borrowers’ obligations under the Loan Documents are satisfied. (f) Each Borrower agrees that (i) any purchase rights or rights of first refusal in favor of any Borrower shall be subject and subordinate to the Security Instrument and (ii) all indemnities and other rights and remedies of each Borrower shall be subject and subordinate to the Loan and the Security Instrument. Each Borrower covenants and agrees not to assert, collect, s▇▇ upon or otherwise enforce such rights, remedies and indemnities while any portion of the Debt is outstanding. (g) Each of the covenants and agreements set forth in this Agreement and each of the other Loan Documents is made equally by each Borrower (unless otherwise expressly provided). It is the intent of the parties hereto in making any determination under this Agreement, including, without limitation, in determining whether (i) a breach of a representation, warranty or a covenant has occurred, (i) there has occurred a Default or Event of Default, or (iii) an event has occurred which would create recourse obligations under Article 12 of this Loan Agreement or the Guaranty, that any such breach, occurrence or event with respect to any Borrower shall be deemed to be such a breach, occurrence or event with respect to all Borrowers and that all Borrowers need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to every Borrower. (h) During the term of the Loan, any modification, waiver, amendment, discharge or change of the TIC Agreement shall not be valid (i) unless it is consented to in writing by Lender, and (ii) after a Securitization, unless Borrower shall have provided Lender with a Rating Agency Confirmation.

Tenants in Common. (a) Each No Borrower shall timely file a complaint or institute any proceeding at law or in equity to have the Property partitioned. (b) Borrower expressly waives any and all lien rights it may have under the Tenancy in Common Agreement against any other Borrower for advances made in connection with the continued ownership, operation and maintenance of the Property or as a result of the failure of any Tenant in Common to perform all of its obligations under the TIC Tenancy in Common Agreement. (c) Borrower hereby agrees that the Tenancy in Common Agreement and any and all rights and liens created thereby in favor of any Tenant in Common (including without limitation, rights to the payment of monies, rights of indemnity, lien rights, rights of first refusal, options to purchase or other rights of acquisition) are and shall be in all respects subordinate and inferior to the lien, security interest and terms of this Mortgage, the Note and the other Loan Documents. Borrower shall give prompt not permit any payments to be made to any Tenant in Common or the property manager pursuant to the terms of the Tenancy in Common Agreement or the Management Agreement without Lender’s prior written notice consent, except to the extent that all amounts due under the Loan are current and such payments are made out of excess cash flow remaining after payment of current installments due under the Loan Documents. (d) Borrower shall promptly (i) perform and observe all of the covenants required to be performed and observed by it under the Tenancy in Common Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) notify Lender of any default under the TIC Tenancy in Common Agreement of which it is aware; and (iii) deliver to Lender a copy of any notice of default or other material notice received by Borrower under the Tenancy in Common Agreement. (be) Borrower shall not amend or modify in any respect, or terminate, cancel, amend, modify, renew or extend the TIC Agreement, or add new parties thereto, or enter into any other agreement relating to the ownership, management or operation of the Property Tenancy in Common Agreement without the prior written consent of Lender and Lender’s receipt of a Rating Agency Confirmation. Any violation of the foregoing shall be an automatic Event of Default hereunder. Borrower covenants and agrees that Lender shall be and hereby is made an intended third party beneficiary of the TIC Agreement. Notwithstanding the foregoing, any action (or inaction) by a Borrower that constitutes an Event of Default hereunder, although such action (or inaction) is permitted under the terms of the TIC Agreement, shall nevertheless constitute an Event of Default hereunder and which consent shall not be deemed waived by virtue of such action (or inaction) being permitted under the TIC Agreementunreasonably withheld. (c) Notwithstanding any provisions of applicable Legal Requirements or the TIC Agreement to the contrary, until the indefeasible payment and discharge in full of the Debt, each Borrower agrees, jointly and severally, that it shall not (and hereby waives, to the fullest extent possible under applicable law, any right to) file, commence, seek or prosecute an action for partition or forced sale of the Property and/or Improvements or any portion thereof. (d) It is agreed by each Borrower that Medalist Fund Manager, Inc. (i) at all times during the term of the Loan, shall act, directly or indirectly, as the operating manager for the Property on behalf of Borrower, (ii) is authorized to be the sole contact and notice party for the Lender with respect to the Loan and shall act as each Borrower’s attorney-in-fact to receive all notices, including, without limitation, service of process for each Borrower and (iii) shall keep all books and records pertaining to the Loan separate from any other property of any other Borrower. (e) During the term of the Loan, each Borrower hereby waives any and all security interests and rights to impose a lien (including, without limitation, with respect to capital calls) under the TIC Agreement, and any other rights arising from state law, against the Property and the interests of any other party to the TIC Agreement. Each Borrower hereby waives any and all rights of subrogation, reimbursement, contribution, indemnity or otherwise arising by contract or operation of law (including, without limitation, any lien rights) from or against any other Borrower until the Loan is paid in full and all Borrowers’ obligations under the Loan Documents are satisfied. (f) Each Borrower agrees that (i) any purchase rights or rights of first refusal in favor of any Borrower shall be subject and subordinate to the Security Instrument and (ii) all indemnities and other rights and remedies of each Borrower shall be subject and subordinate to the Loan and the Security Instrument. Each Borrower covenants and agrees not to assert, collect, s▇▇ upon or otherwise enforce such rights, remedies and indemnities while any portion of the Debt is outstanding. (g) Each of the covenants and agreements set forth in this Agreement and each of the other Loan Documents is made equally by each Borrower (unless otherwise expressly provided). It is the intent of the parties hereto in making any determination under this Agreement, including, without limitation, in determining whether (i) a breach of a representation, warranty or a covenant has occurred, (i) there has occurred a Default or Event of Default, or (iii) an event has occurred which would create recourse obligations under Article 12 of this Loan Agreement or the Guaranty, that any such breach, occurrence or event with respect to any Borrower shall be deemed to be such a breach, occurrence or event with respect to all Borrowers and that all Borrowers need not have been involved with such breach, occurrence or event in order for the same to be deemed such a breach, occurrence or event with respect to every Borrower. (h) During the term of the Loan, any modification, waiver, amendment, discharge or change of the TIC Agreement shall not be valid (i) unless it is consented to in writing by Lender, and (ii) after a Securitization, unless Borrower shall have provided Lender with a Rating Agency Confirmation.