Exhibit 10.5


 


TIC MANAGEMENT AGREEMENT


 


THIS TIC MANAGEMENT
AGREEMENT (the “Agreement”) is made as of this 29th day of May, 2015 (the “Effective Date”) by and
between the following:


 


	 	DUKE	DUKE OF LEXINGTON, LLC,
	 	 	an Ohio limited liability company
	 	 	c/o Fred Keith
	 	 	Keith & Associates
	 	 	715 Bakewell Street
	 	 	Covington, KY 41011
	 	 	 
	 	 	As to a 9.99% undivided interest
	 	 	 
	 	COMMANDER	COMMANDER HABERSHAM, LLC,

an Ohio limited liability company 
	 	 	One Grandin Lane
	 	 	Cincinnati, Ohio 45208
	 	 	Attn: J. Robert Brown
	 	 	Facsimile No. (513) 321-5169
	 	 	 
	 	 	As to a 0.01% undivided interest
	 	 	 
	 	 	 
	 	BR CDP	BR/CDP CB VENTURE, LLC
	 	 	a Delaware limited liability company 
	 	 	c/o Bluerock Real Estate, LLC
	 	 	712 Fifth Avenue, 9th Floor
	 	 	New York, NY 10019
	 	 	Attn. Michael Konig
	 	 	Facsimile No. (646) 278-4220
	 	 	 
	 	 	and:
	 	 	 
	 	 	880 Glenwood Avenue SE
	 	 	Suite H
	 	 	Atlanta, Georgia 30316
	 	 	Attn: Rob Meyer
	 	 	Facsimile No. (404) 890-5681
	 	 	 
	 	 	As to a ninety percent (90%) undivided interest


 


Duke, Commander and BR CDP shall be known
collectively as the “Co-Tenants.”


 




    	 



    	 	 	 



    

 


WHEREAS, the Co-Tenants
have entered into: (i) that certain Tenancy-In-Common Agreement, dated of even date herewith (“TIC Agreement”), and (ii)
that certain BR/CDP Cheshire Bridge Trust Agreement (the “Trust Agreement”) dated as of May 29, 2015, creating the BR
CDP Cheshire Bridge Trust (the “Trust”) and have pursuant thereto named CB Owner, LLC as trustee (the “Trustee”);


 


WHEREAS, the Co-Tenants
are the sole Beneficiaries under the Trust;


 


WHEREAS, the Co-Tenants
intend to purchase and hold certain real property located in Fulton County, Georgia as described in Exhibit “A”
attached hereto and made a part hereof by this reference (the “Property”), which Property shall be held by the Trustee
as an investment for the benefit of the Co-Tenants as set forth in the Trust Agreement;


 


WHEREAS, pursuant to
the TIC Agreement, the Co-Tenants intend to enter into a Development Agreement with CDP Developer I, LLC, a Georgia limited liability
company (“Catalyst,” and together with its successors and assigns, as the “Developer”) in substantially the
form attached hereto as Exhibit “B”;


 


WHEREAS, the Co-Tenants
desire to enter into this Agreement to amend and supersede certain terms and conditions set forth in the TIC Agreement, and Duke
and Commander shall hereby subordinate and waive certain of their rights under the TIC Agreement as provided herein;


 


NOW THEREFORE, In consideration
of the mutual promises of the Co-Tenants hereto, and for other good and valuable consideration, the receipt and adequacy of which
is hereby acknowledged, the Co-Tenants hereby agree as follows:


 


1.          Recitals.
The above recitals are true and correct and are incorporated herein by this reference. For so long as BR CDP, or any successor
in interest to BR CDP’s Co-Tenancy interest, shall have any interest in the Property, the terms and conditions of this Agreement
shall be effective. In the event Duke and/or Commander acquire one hundred percent (100%) of the Co-Tenancy interests of BR CDP,
then said entities may, at their election, terminate this Agreement.


 


2.          Defined
Terms. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to said terms in the TIC
Agreement.


 


3.          Management.
Notwithstanding anything contained to the contrary herein, in the TIC Agreement, in the Trust Agreement or in any other agreement
entered into by all of the Co-Tenants, the Co-Tenants hereby grant to BR CDP the full, sole and exclusive authority (i.e., without
the approval, vote or consent of Duke and/or Commander) to make, decide or cause the Trustee to make, decide or implement any and/or
all decisions affecting the Trustee, the Co-Tenants, the Property, and/or arising under the TIC Agreement or the Development Agreement,
including, without limitation, those decisions set forth in Section 11A of the TIC Agreement, which such decisions include, without
limitation, the following:


 


		a.	A sale, transfer, lease, deed restriction, or grant of
easement of/on any portion of the Property.



 


		b.	Entering into, and administering, any loan or other debt
secured by the Property or the income therefrom, or upon which any of the Co-Tenants are or may be personally liable.



 




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		c.	Initiation of a Cash Call Notice to raise Additional Cash.



 


		d.	Approval of all budgets (for development, operations and/or
capital expenditures).



 


		e.	Entering into and administering the Development Agreement
and any modifications to the Development Agreement.



 


		f.	Entering into and administering any contracts and transactions
with parties affiliated with the Developer.



 


		g.	Replacing the Developer and/or the Trustee (including without
limitation, any replacement of the Trustee contemplated under Section 13 of the Trust Agreement).



 


		h.	Taking such other acts or decisions reserved to the Co-Tenants
as set forth in the Development Agreement.



 


		i.	Entering into or renewing and administering any property
management agreement with respect to the Property.



 


4.          Tax
Treatment. In no event shall BR CDP, its principals, members, attorneys or affiliates (collectively, the “BR CDP Indemnified
Parties”) have any liability to Duke and/or Commander with regard to any determination or ruling by the Internal Revenue
Service that results in the organizational structure of the tenancy-in-common created by the TIC Agreement, as modified, amended,
expanded or otherwise affected by this Agreement, the Development Agreement and/or the Trust Agreement, to be characterized as
anything other than a tenancy-in-common for tax purposes (“Characterization Issues”), and each of Duke and Commander
hereby agrees to indemnify the BR CDP Indemnified Parties against any and all attorney’s fees and costs, claims, losses or damages
associated with any proceeding or hearing instituted by the Internal Revenue Service in connection with the Characterization Issues.


 


5.          Buy/Sell;
Drag Along. BR CDP, Duke and Commander each acknowledge and agree that BR CDP shall acquire the Co-Tenancy interests of
Duke and Commander in the event BR JV Member (as hereinafter defined) exercises any so-called “buy/sell” rights or similar
rights against CDP JV Member (as hereinafter defined) in that certain Operating Agreement for BR CDP, by and between BR Cheshire
Member, LLC, a Delaware limited liability company (“BR JV Member”) and CB Developer, LLC, a Georgia limited liability
company (“CDP JV Member”) dated on or about the date hereof (“BR CDP JV Agreement”). For avoidance of doubt,
the intent of the foregoing is to effect a “drag along” so that all Co-Tenancy and ownership interests of Duke and/or
Commander shall be acquired by BR JV Member in the event BR JV Member acquires the interests of CDP JV Member in BR CDP pursuant
to the “buy/sell” rights or put rights established under the BR CDP JV Agreement, including, without limitation, Sections
12.06 and 12.09 thereof. The terms and conditions, including, without limitation, terms pertaining to price and timing, governing
the method by which the BR JV Member shall acquire the interests of Duke and Commander shall be as set forth in the BR CDP JV Agreement,
a copy of which Duke and Commander acknowledge has been provided to them. For the avoidance of doubt, not only, if applicable,
shall BR JV Member acquire the Duke and Commander Co-Tenancy interests under such circumstances, but Duke and Commander expressly
acknowledge and agree that they are required to, and shall, convey their Co-Tenancy interests to BR JV Member in such circumstances.


 




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6.          Waiver
Regarding Right of Partition, Sale, Refinancing and Exchange. Notwithstanding Section 4 of the TIC Agreement, each of Duke
and Commander hereby fully and irrevocably waive their right to partition the Property and/or to vote on any sale, refinancing
or exchange of the Property.


 


7.          Developer.
The Co-Tenants hereby approve the Development Agreement. The Co-Tenants hereby agree that Developer will be paid a Development
Fee as set forth in the Development Agreement together with such other fees as are set forth in the Development Agreement. Notwithstanding
the provisions of Section 11 of the TIC Agreement, and in addition to any rights BR CDP has under the TIC Agreement, BR CDP
shall have the exclusive right and authority to unilaterally declare a “default” or “Event of Default”
under the Development Agreement and to exercise, in the name and on behalf of the Co-Tenants and the Owner (as such term is defined
in the Development Agreement), any right of termination contained therein as a result of such default or Event of Default (after
the expiration of any applicable cure period). BR CDP shall have the right, but not the obligation, to (a) replace Catalyst Developer
I, LLC (“Catalyst”) and/or Trustee with a new Developer and a new Trustee reasonably qualified to complete the Project
(as such term is defined in the Development Agreement); and (b) take such other actions as BR CDP deems, in its sole but reasonable
discretion as necessary or appropriate for the benefit of the Co-Tenants to protect the Property and/or to complete the Project.
Notwithstanding the foregoing, as a condition precedent to removing or replacing Catalyst as set forth in this Section 7, (x) BR
CDP must cause Catalyst (or any affiliate or principal of Catalyst) who has executed a guaranty in connection with the Loan to
be prospectively released from such guaranty or (y) if the lender under the Loan refuses to release Catalyst or its affiliates
or principals, BR CDP (and certain Affiliates of the BR JV Member reasonably acceptable to Catalyst) must indemnify and hold harmless
such parties with respect to any losses, costs or expenses incurred thereunder except to the extent that (x) Catalyst or its affiliates
are otherwise obligated to BR CDP or to BR JV Member, without right of reimbursement, under a written agreement for the amount
sought to be recovered under such guaranty or (y) the amount sought to be recovered would never be collectible from, or claimed
against, BR CDP but for the fraud, willful misconduct, gross negligence or willful misappropriation of funds by Catalyst or its
affiliates; provided, that BR CDP shall not be obligated to indemnify Catalyst with respect to any action which Catalyst has expressly
approved of or consented to in writing within two (2) business days following the receipt of written notice from BR CDP that BR
CDP intends to take such action. If Catalyst has not affirmatively responded to BR CDP by the end of such two (2) business day
period, Catalyst shall be deemed to have expressly disagreed with the action.


 


8.          Administration.
The Co-Tenants hereby appoint BR CDP to administer and enforce the rights and obligations of the Co-Tenants under this Agreement,
the TIC Agreement and the Development Agreement.


 


9.          Investment
Banking Fee. Each of the Co-Tenants acknowledges and agrees that, at the Closing of the acquisition of the Property, they
shall proportionally bear the expense of an investment banking fee to BR JV Member equal to one percent (1%) of the Project’s
Total Project Budget (as defined in the BR CDP JV Agreement) (exclusive of the Development Fee payable pursuant to the Development
Agreement and this investment banking fee).


 




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10.         Capital
Contribution Obligations; Distributions of Net Cash From Operations and Net Cash From Sales or Refinancings; Failure to Make Required
Cash Contributions.


 


		a.	Duke/Commander Cash Contribution. In the event Additional
Cash Contributions are required from time to time under the TIC Agreement, the Co-Tenants have agreed that, notwithstanding Duke’s
and Commander’s failure to make any Additional Cash Contribution, (i) Duke and Commander shall not be deemed to be in default
under Section 8 of the TIC Agreement and (ii) BR CDP shall not be entitled to make a Default Loan as described in Section 8 of
the TIC Agreement, if the following condition is satisfied: CDP JV Member fully funds Duke’s and Commander’s share
of the Additional Cash Contributions required under the Cash Call Notice. If Duke and Commander do in fact make their Additional
Cash Contributions as required under a Cash Call Notice, they shall be entitled to repayment on a fourth priority basis as provided
in Section 10(b)(D) below. If they do not, but CDP JV Member instead makes Duke’s and Commander’s share of the Additional
Cash Contribution, then BR CDP (for the benefit of the CDP JV Member) shall get credit for making such Additional Cash Contribution
under the TIC Agreement and shall be entitled to repayment on a fourth priority basis as provided in Section 10(b)(D) below.



 


		b.	Section 12 of the TIC Agreement is hereby deleted in its
entirety, and restated below as follows:



 


“Distribution
of Net Cash from Operations, Sales or Refinancings. Subject to any applicable restrictions in any loan document created
with respect to the Property, Net Cash from Operations and Net Cash from Sales or Refinancings shall be distributed to the Co-Tenants,
in the following order and priority:


 


A.           First,
to repay any Default Loan, with payment of interest first and then principal;


 


B.           Second,
to BR CDP in connection with any funded Shortfall to the extent provided under Sections 10(c) of the TIC Management Agreement;


 


C.           Third,
to repay any loan (excluding a Default Loan made on behalf of a Defaulting Co-Tenant pursuant to Section 8 above) approved by BR
CDP and made by any Co-Tenant for the benefit of the Property or in furtherance of the ownership or operation thereof. Payments
to the Co-Tenants to repay loans shall be made, pari passu, in proportion to each Co-Tenant’s share of the total of such
loans, with payment of interest first and then principal;


 


D.           Fourth,
to the Co-Tenants until they have been repaid in full their Additional Cash Contributions and their Additional Cash Contribution
Preferred Return (i.e., an amount accruing at the rate of ten percent (10%) per annum on each Co-Tenant’s unreturned Additional
Cash Contributions, compounded monthly and calculated on a cumulative basis). Payment to the Co-Tenants shall be pari passu, and
made pro-rata in accordance with each Co-Tenant’s percentage share of all such Additional Cash Contributions;


 


E.           Fifth,
to the Co-Tenants until they have been repaid in full their Initial Cash Contributions. Payment to the Co-Tenants shall be made
in proportion to their Pro Rata Shares;


 




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F.           Sixth,
to BR CDP in return of its Section 8.04(a) Advances, to the extent provided under Section 10(d) of the TIC Management Agreement;
and


 


G.           Seventh,
to the Co-Tenants, in proportion to their Pro Rata Shares.


 


		c.	Failure to fund Hard Cost Overruns, Soft Cost Overruns
or Section 8.04(a) Advances. In accordance with Section 8.04(b) of the BR CDP JV Agreement, if there is a Hard Cost Overrun
or Soft Cost Overrun that needs to be funded, then BR CDP shall issue a Cash Call Notice under the TIC Agreement and it shall
be funded 10% by the Co-Tenants and 90% by BR CDP (of which 55.56% shall be funded by the BR JV Member and 44.44% shall be funded
by the CDP JV Member); provided however, if Duke and Commander do not timely fund their 10% share, then BR CDP shall be required
to fund the full one hundred percent (100%) of the amount required pursuant to the Cash Call Notice (of which 50% shall be funded
by the BR JV Member and 50% shall be funded by the CDP JV Member). In addition, in accordance with Section 8.04(a) of the BR CDP
JV Agreement, the CDP JV Member must on its own account solely fund into BR CDP a Catalyst Section 8.04(a) Advance (as defined
in the BR CDP JV Agreement); and the BR JV Member must on its own account solely fund into BR CDP a BR Section 8.04(a) Advance
(as defined in the BR CDP JV Agreement). To the extent any party fails to fund their share as aforesaid, then the other party(ies)
that funded their share shall have the right (but not the obligation) to do so on behalf of the non-funding party(ies) (a “Shortfall”).
Any Shortfall so funded shall be entitled to repayment on a second priority basis as provided in Section 10(b)(B) above, in an
amount equal to the sum of: (A) the product of (x) three (3), multiplied by (y) the Shortfall, plus (B) the product of (x) ten
percent (10%) per annum, multiplied by (y) the figure which is three (3) times the Shortfall. For example, if Duke and Commander
were obligated but failed to fund a $10,000.00 Additional Cash Contribution for a Hard Cost Overrun, and CDP JV Member likewise
failed to do so, but in fact BR JV Member funded said $10,000.00 to BR CDP, then prior to any distribution of Net Cash from Operations
or Net Cash from Sales or Refinancings to Duke and/or Commander, BR CDP, for the benefit solely of BR JV Member, would first receive
a distribution equal to the sum of (x) $30,000.00 plus (y) ten percent (10%) of $30,000.00 per year, and pro rata for partial
years, for each year that the $30,000.00 remains unreturned.



 


		d.	Return of Section 8.04(a) Advances. Notwithstanding
anything contained herein to the contrary, the parties acknowledge and agree that certain Section 8.04(a) Advances under the BR
CDP JV Agreement could relate solely to BR CDP and not to the Property and therefore would not be contributed in turn to the Borrower.
Any such Section 8.04(a) Advances will be disregarded for purposes of the TIC Agreement and TIC Management Agreement.



 


11.         Loan
Guarantees. BR CDP agrees that certain of its principals shall personally guarantee any Loan; provided, however, (i) in
no event shall principals of BR CDP comprising any affiliate of Bluerock Real Estate, LLC be obligated to provide such a guaranty,
and (ii) the content of such guarantees shall be on terms and conditions reasonably acceptable to BR CDP.


 




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12.        Modifications
to TIC Agreement and Trust Agreement.


 


A.         Nothing in Section
8 of the TIC Agreement is intended to affect the Co-Tenants’ right to exercise any other available remedies with respect
to any failure to make the Cash Contributions described in the TIC Agreement.


 


B.          Nothing
in Section 10 of the TIC Agreement is intended to limit the obligations of the members of BR CDP to make any required capital contributions
required under the BR CDP JV Agreement, nor shall Section 10 of the TIC Agreement limit any Co-Tenant’s obligation to make their
pro rata share of the called capital.


 


C.          Additional
Capital Contributions to avoid Loan Defaults. Without limiting Subsection 7 of the TIC Agreement, and notwithstanding anything
herein to the contrary, if: (i) an event of default occurs under the Loan or, in the reasonable opinion of the CDP JV Member, an
event of default under the Loan is imminent; (ii) funds sufficient to cure or avoid such event of default under the Loan are not
available from existing cash flow or applicable reserves; and (iii) such default is not a result of any act or omission involving
knowing violations of the law, material breach of the TIC Agreement or any loan agreement pertaining to the Loan, fraud, bad faith
or gross negligence on the part of CDP JV Member or any of its Affiliates (as defined in the BR CDP JV Agreement), and (iv) the
CDP JV Member or its Affiliates have an outstanding Loan guaranty, then, if appropriate, CDP JV Member shall have the unilateral
right (on behalf of BR CDP) to make a Cash Call for a Protection Payment (as defined in the BR CDP JV Agreement); provided, however,
if CDP JV Member has failed to initiate the Cash Call then the BR JV Member shall have the right to do so. Each such authorized
Cash Call Notice shall be in writing and shall set forth: (i) the total amount of the Additional Cash Contribution; (ii) each Co-Tenant’s
Pro Rata Share thereof; and (iii) the specific proposed use of the funds requested. Each Co-Tenant shall deliver to BR CDP said
Co-Tenant’s Pro Rata Share of the Additional Cash Contribution as set forth in the Cash Call Notice within ten (10) days
from the date of said notice, and such funds shall thereafter be used solely in the manner described in the Cash Call Notice.


 


Solely
in the event of a Cash Call pursuant to this Section 12.C, if either or both of Duke or Commander elects not to or fails to contribute
its Pro Rata Share of such Cash Call, then CDP JV Member or BR JV Member if BR JV Member has made the Cash Call in accordance with
the preceding paragraph (in either case, on behalf of BR CDP) shall have the unilateral right to do one or more of the following:
(1) cause the Trustee to borrow the required funds (whether from a Co-Tenant or an unrelated third party), (2) cause the Trustee
to sell the Property (whether to a Co-Tenant or an unrelated third party), (3) cause the Trustee to negotiate, compromise or settle
any outstanding claim arising in connection with the Loan, or (4) directly fund any amounts necessary to cure any default under
the Loan, in which event an amount equal to the product of (x) the amount so funded to cure the default under the Loan multiplied
by (y) the aggregate percentage ownership in the Property of each of Duke and Commander, shall be deemed a Default Loan by BR CDP
to each of Duke and Commander and treated accordingly pursuant to Section 8(A)(i) of the TIC Agreement. This provision shall not
be for the benefit of any creditor of the Trustee (including a trustee in bankruptcy), and no creditor (including a trustee in
bankruptcy) shall have the right to force any of the Co-Tenants to make any such contributions or loans. The exercise of these
rights on behalf of BR CDP are, as between the BR JV Member and the CDP JV Member, subject to any and all restrictions and limitations
within Section 6.05(c) of the BR CDP JV Agreement.


 




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D.           Section
5 of the Trust Agreement is hereby modified by inserting the following phrase at the beginning of the first sentence thereof: “Except
as otherwise agreed in writing by the Beneficiaries.”


 


E.           Section 6 of
the TIC Agreement is hereby modified by deleting the following phrase: “who, unless otherwise agreed to by the Beneficiaries
in writing, shall serve for a one (1) year term, and at the end of said one (1) year term, if no other replacement manager has
been appointed, shall continue to serve as manager until another manager is appointed.” It is the intent of the Co-Tenants
that BR CDP retain the appointment made pursuant to Section 6 of the TIC Agreement until such time as BR CDP elects to appoint
a successor, which BR CDP shall have the right to do in its sole discretion.


 


F.           The
Co-Tenants shall fund their respective Initial Cash Contributions, as set forth on Exhibit “B” to the TIC
Agreement, in a single installment when called for under Section 7.A. of the TIC Agreement.


 


13.         Miscellaneous
Provisions.


 


A.           Notice.


 


(i)          Delivery
Method. Any notice, election, or other communication required or permitted hereunder shall be in writing addressed to the address
set forth on the first page of this Agreement and shall be either: (a) delivered in person to the Co-Tenants, (b) sent by same
day or overnight courier service, (c) sent via facsimile with next business day delivery by one of the methods set forth herein,
or (d) sent by certified or registered United States mail, return receipt requested, postage and charges prepaid, to the Co-Tenants
at the addresses referenced herein.


 


(ii)         Effective
Date. Any notice, election, or other communication delivered or mailed as aforesaid (“Notice”) shall, (a) if delivered
in person, be effective upon date of delivery; (b) if delivered by same day or overnight delivery service, be effective on the
date of delivery to such address or addresses regardless if accepted; (c) if delivered by facsimile transmission, be effective
on the date the same was delivered if received at the recipient’s facsimile machine prior to 5:00 p.m. EST/EDT, on a business
day, or on the next business day if received at the recipient’s facsimile machine on a non-business day or after 5:00 p.m.
EST/EDT on a business day; and (d) if delivered by mail, be effective upon the earlier of the date of actual receipt, or five (5)
business days after deposit with the U.S. Postal Service regardless if actually received.


 


(iii)        Change
of Address. Each party hereto may change its address and addresses for notice, election and other communication from time to
time by notifying the other parties hereto of the new address in the manner provided for giving notice herein.


 


B.           Applicable
Law. It is the intention of the Co-Tenants that all questions with respect to the construction, enforcement and interpretation
of this Agreement and the rights and liabilities of the Co-Tenants shall be determined in accordance with the laws of the State
of Georgia, without regard to principles of conflicts of laws.


 


C.           Separability.
This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances,
rules and regulations. If any provision of this Agreement or the application thereof to any person or circumstances shall, for
any reason and to any extent, be invalid or unenforceable, the remainder of this Agreement and the application of such provision
to other persons or circumstances shall not be affected thereby, but rather shall be enforced to the greatest extent permitted
by law.


 




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D.           Binding
Effect. This Agreement is binding upon, and inures to the benefit of, the Co-Tenants and their respective spouses, heirs, executors
and administrators, personal and legal representatives, successors and assigns; provided, however, that no party to this Agreement
shall be permitted to assign any or all of its rights or obligations under this Agreement, except as provided in Paragraph E below.


 


E.           Transfers;
Assignments; Right of First Refusal. No party, including all Co-Tenants and principal owners of the Co-Tenants, shall be permitted
to assign any of its rights or obligations under this Agreement, without the prior written consent of BR CDP. Any assignment or
attempted assignment of any of the rights or obligations under this Agreement without complying with this Paragraph E shall be
void ab initio. Notwithstanding the foregoing, interparty transfers of Co-Tenancy interests in the Property between Duke and Commander
shall be permitted provided the ownership composition of Duke and Commander does not change from the ownership composition which
existed as of the date of this Agreement.


 


F.           Construction.
In the event of any conflict between the terms and provisions of the TIC Agreement (including, without limitation, Section 11(A)
of the TIC Agreement), and the terms and provisions of this Agreement, the terms and provisions of this Agreement shall control
and supersede over the TIC Agreement. Duke and Commander expressly acknowledge and agree that the provisions and powers of and
granted under this Agreement to BR CDP supersede any contrary or inconsistent provisions or powers that they may have under the
TIC Agreement or the Trust Agreement with the intent that all such powers may be exercised only by BR CDP and not by Duke or Commander.


 


G.           Entire
Agreement / Amendment / Waiver. Except as otherwise set forth herein, together with the Development Agreement, the TIC Agreement
and the Trust Agreement, this Agreement contains all of the agreements of the Co-Tenants. All prior or contemporaneous agreements
or understandings, oral or written, are merged in this Agreement and shall not be effective for any purpose. No amendment of this
Agreement or waiver of any provisions hereof shall be valid or binding on the parties hereto unless such amendment or waiver shall
be in writing and signed by or on behalf of all the parties hereto, and no waiver on one occasion shall be deemed to be a waiver
of the same or any other provision hereof in the future.


 


H.           Counterparts.
This Agreement and any amendments hereto may be executed in several counterparts, each of which shall be deemed to be an original
copy, and all of which together shall constitute one agreement binding on all Co-Tenants, notwithstanding that all the Co-Tenants
shall not have signed the same counterpart.


 


I.            Venue-Jury
Trial Waiver. The parties hereto agree that any suit brought to enforce this Agreement, the TIC Agreement or the Trust Agreement
shall be venued only in any court of competent jurisdiction in the State of New York, Borough of Manhattan, and, by execution and
delivery of this Agreement, each of the parties to this Agreement hereby irrevocably accepts and waives all objection to, the exclusive
jurisdiction of the aforesaid courts in connection with any suit brought to enforce this Agreement, and irrevocably agrees to be
bound by any judgment rendered thereby. Each of the parties hereto hereby agrees that service of process in any such proceeding
may be made by giving notice to such party in the manner and at the place set forth in Section 15 A. of the TIC Agreement. The
parties further mutually agree to waive all rights to trial by jury.


 


(SIGNATURES ON FOLLOWING
PAGE)


 




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IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the Effective Date set forth above.


  


	Signed and Acknowledged	 	 	 
	in the presence of:	 	 	 
	 	 	DUKE OF LEXINGTON, LLC, an Ohio limited liability company
	 	 	 	 
	/s/ William S. Stacey	 	By:	/s/ Jeanne C. Miller
	Print Name:	William S. Stacey	 	Name:	Jeanne C. Miller
	 	 	Title:	Manager
	/s/ Michael T. Chambers	 	 	 
	Print Name:	Michael T. Chambers	 	 	 
	 	 	 	 
	 	 	COMMANDER HABERSHAM, LLC, an Ohio limited liability company
	 	 	 	 
	/s/ Sean Parker	 	By:	/s/ J. Robert Brown
	Print Name:	Sean Parker	 	Name:	J. Robert Brown
	 	 	Title:	Manager
	/s/ Emily Juday	 	 	 
	Print Name:	Emily Juday



	 	 	 
	 	 	 	 
	 	 	BR/CDP CB VENTURE, LLC, a Delaware limited liability company
	 	 	 	 
	 	 	By:	CB Developer, LLC, a Georgia limited liability company, a Manager
	/s/ Benjamin Field	 	 	 
	Print Name:	Benjamin Field



	 	 	By:	Catalyst Development Partners II, 
	 	 	 	 	 	LLC, a Georgia limited liability company, as its Managing Member
	/s/ Elizabeth Smith	 	 	 	 
	Print Name:	Elizabeth Smith



	 	 		By:	/s/ Mark Mechlowitz 






	 	 	 	 		Name: 	Mark Mechlowitz










	 	 	 	 		Title: 	Manager






 




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Trustee joins in the execution of this
Agreement to evidence its agreement to the terms of Section 12 D and 13 I:


 


	Signed and Acknowledged	 	 
	in the presence of:	 	 
	 	 	CB OWNER, LLC, a Delaware limited liability company
	 	 	 	 
	/s/ Sheronda Davis	 	By:	/s/ Mark Mechlowitz 
	Print Name:	Sheronda Davis 



	 	Name:	Mark Mechlowitz 
	 	 	Title:	Vice President
	/s/ Benjamin Field	 	 	 
	Print Name:	Benjamin Field



	 	 	 


 




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EXHIBIT “A”


 


Legal
Description


 


All that tract of land lying or being Land
Lot 6, 17th District, Fulton County and the City of Atlanta, Georgia, and being more particularly described as follows:


 


BEGINNING at a 1/2 inch re-bar found at
the intersection of the southerly right of way of Interstate 85, a variable width right of way, and the westerly right of way of
Cheshire Bridge Road, also a variable width right of way;


 


THEN leaving the right of way of Interstate
85, proceed the following courses along the said westerly right of way of Cheshire Bridge Road:





South 55 degrees 38 minutes 44 seconds East
for 30.92 feet to a 1/2 inch re-bar found;


THEN South 06 degrees 51 minutes 23 seconds
East for 248.74 feet to a nail found;


THEN South 28 degrees 07 minutes 38 seconds
East for 42.38 feet to a 1/2 inch re-bar found;


THEN South 67 degrees 28 minutes 12 seconds
West for 145.43 feet to a 1/2 inch re-bar found;


THEN South 00 degrees 42 minutes 52 seconds
West for 123.24 feet to a 1/2 inch re-bar found;


THEN North 88 degrees 37 minutes 53 seconds
West for 43.35 feet to a 1/2 inch re-bar found;


THEN South 09 degrees 34 minutes 54 seconds
East for 86.90 feet to a 1/2 inch re-bar found;


THEN North 89 degrees 25 minutes 02 seconds
West for 172.15 feet to a 1/2 inch open top pipe found;


THEN North 25 degrees 59 minutes 36 seconds
West for 95.01 feet to a point;


THEN North 26 degrees 42 minutes 06 seconds
West for 470.00 feet to a point on the southerly variable right of way of Interstate 85;


THEN continue the following courses along
said southerly right of way of Interstate 85;


North 82 degrees 57 minutes 58 seconds East
for 105.01 feet to a 1/2 inch re-bar found;


THEN North 79 degrees 50 minutes 07 seconds
East for 257.68 feet to a point;


THEN North 89 degrees 59 minutes 21 seconds
East for 156.66 feet to a 1/2 inch re-bar found at the POINT OF BEGINNING.


 


Together with and subject to covenants,
easements, and restrictions of record.


 


Said property contains 4.877 acres more
or less.


 




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EXHIBIT “B”


 


DEVELOPMENT
AGREEMENT


 




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