Common use of TIC Clause in Contracts

TIC. (a) Borrower will: (i) promptly perform and observe all of the covenants, agreements, obligations and conditions required to be performed and observed by Borrower under the TIC Agreement, and do all things necessary to preserve and keep unimpaired its rights thereunder; (ii) promptly notify Lender in writing of the receipt by any Co- Borrower of any notice (other than notices customarily sent on a regular periodic basis) from any party under the TIC Agreement and of any notice noting or claiming any default by any party to the TIC Agreement in the performance or observance of any of the terms, covenants, or conditions on the part of Borrower to be performed or observed under the TIC Agreement; (iii) promptly notify Lender in writing of the receipt by any party to the TIC Agreement of any notice from any party to the TIC Agreement of any alleged termination of the TIC Agreement and promptly cause a copy of each such notice to be delivered to Lender; and (iv) promptly notify Lender in writing of any request made by any party to the TIC Agreement to any other party thereto for arbitration or appraisal proceedings pursuant to the TIC Agreement, and of the institution of any arbitration or appraisal proceedings and promptly deliver to Lender a copy of the determination of the arbitrators or appraisers in each such proceeding. Upon the written demand of Lender, Borrower will promptly deliver to Lender a certificate stating that the TIC Agreement is in full force and effect, is unmodified (or identifying any modifications), that no notice of termination thereof has been served on Borrower and stating whether or not there are any defaults thereunder and specifying the nature of such defaults, if any. Borrower shall deliver to Lender such certificate within ten (10) days after Lender’s demand therefor. Each of the Co-Borrowers, as owners in indivision, shall at all times share one centralized address for notice and one centralized address for service of process, which common service of process address and notice address are as set forth in Section 19.3 and Section 19.6 hereof (and which common service of process address and notice address may be changed by Borrower from time to time in accordance with the provisions of Section 19.3 and Section 19.6 respectively). (b) Borrower will not surrender the TIC Agreement or its estate and interest therein, nor terminate or cancel the TIC Agreement; and (except for modifications or amendments made in connection with permitted Transfers under Article VIII solely to reflect such transfers of interests) Borrower will not, without the prior written consent of Lender, modify, change, supplement, alter or amend the TIC Agreement (except for modifications or amendments made in connection with permitted Transfers under Article VIII solely to reflect such transfers of interests), either orally or in writing, and as further security for the repayment of the Debt and for the performance of the covenants, agreements, obligations and conditions herein and in the TIC Agreement contained, each Co-Borrower hereby pledges and assigns to Lender all of its rights, privileges and prerogatives as a party to the TIC Agreement, including, without limitation, any and all rights of first refusal (including those which arise under Section 363(i) of the Bankruptcy Code), any options to purchase and similar rights (provided, however, the foregoing shall not be deemed to limit or restrict any Co-Borrower’s right to exercise any such rights or options in order to effect transfers otherwise permitted by Article VIII) as well as rights to terminate, cancel, modify, change, supplement, alter or amend the TIC Agreement (except as provided above), and any such termination, cancellation, modification, change, supplement, alteration or amendment of the TIC Agreement (except as provided above), without the prior written consent thereto by Lender, shall be void and of no force and effect. Without limiting the generality of the foregoing, Borrower will not reject the TIC Agreement pursuant to Section 365(a) of the Bankruptcy Code or any successor law, or allow the TIC Agreement to be deemed rejected by inaction and lapse of time, and will not elect to treat the TIC Agreement as terminated by any party to the TIC Agreement’s rejection of such TIC Agreement pursuant to Section 365(h)(1) of the Bankruptcy Code or any successor law, and as further security for the repayment of the Indebtedness and for the performance of the covenants, agreements, obligations and conditions herein and in the TIC Agreement contained, Borrower hereby assigns to Lender all of the rights, privileges and prerogatives of Borrower and any of Borrower’s bankruptcy trustee to deal with the TIC Agreement, which right may arise as a result of the commencement of a proceeding under the federal bankruptcy laws by or against any party under the TIC Agreement, including, without limitation, the right to assume or reject, or to compel the assumption or rejection of the TIC Agreement pursuant to Section 365(a) of the Bankruptcy Code or any successor law, the right to seek and obtain extensions of time to assume or reject the TIC Agreement, the right to elect whether to treat the TIC Agreement as terminated by any party’s rejection of such TIC Agreement or to remain in possession of the Property and offset damages pursuant to Section 365(b)(1) of the Bankruptcy Code or any successor law; and any exercise of such rights, privileges or prerogatives by Borrower’s bankruptcy trustee without the prior written consent thereto by Lender shall be void and of no force and effect. No release or forbearance of any of Borrower’s obligations under the TIC Agreement, whether pursuant to the TIC Agreement or otherwise, shall release either party from any of its obligations under this Agreement. Borrower hereby expressly grants to Lender, and agrees that Lender shall have, the absolute and immediate right (notwithstanding any cure periods applicable to acceleration of the Note or exercise of remedies provided for herein) to enter in and upon the Property or any part thereof, to such extent and as often as Lender, in its sole discretion, deems necessary or desirable in order to prevent or to cure any such default by any party to the TIC Agreement. Lender may immediately pay and expend such sums of money (notwithstanding any cure periods applicable to acceleration of the Note or exercise of remedies provided for herein) as Lender, in its sole discretion, deems necessary to prevent or cure any such default by any party to the TIC Agreement, and Borrower hereby agrees to pay to Lender, upon not less than ten (10) business days’ notice, all such sums so paid and expended by Lender, together with interest thereon from the date of each such payment at the Default Rate. All sums so paid and expended by Lender, and the interest thereon, shall be added to and be secured by the Lien of the Loan Documents. Each Co-Borrower, as owners in indivision, for themselves and for their respective successors and assigns hereby (w) so long as any portion of the Indebtedness is outstanding, waive and relinquish its rights to partition, in kind or by licitation, the Property, which they own and hold in common, (x) subordinates in all respects the TIC Agreement and all of its rights and remedies, indemnity or otherwise, under the TIC Agreement to the Lien of the Security Instrument and the other Loan Documents and to all of Lender’s rights under the Security Instrument and the other Documents, and (y) subordinates in all respects any options to purchase or rights of first refusal and any other similar rights with respect to another Co-Borrower’s interest in the Property to the Lien of the Security Instrument and the other Loan Documents (including without limitation, the transfer restrictions contained herein and therein) and to all of Lender’s rights under the Security Instrument and the other Loan Documents (provided, however, the foregoing shall not be deemed to limit or restrict any Co-Borrower’s right to exercise any such rights or options in order to effect transfers otherwise permitted by Article VIII hereof).