Contract analysis

Section 1.1 — Defined Terms. As used in this Agreement, the following terms shall have the meanings set forth below: "Additional Deposit" means the sum of Twenty-Seven Million Five Hundred Thousand Dollars ($27,500,000), to be deposited by Buyer with Escrow Agent on or before April 16, 2024, the first Business Day following the expiration of the Due Diligence Period. "Business Day" means any day other than a Saturday

Section 1.2 — Construction. Unless the context otherwise requires: (a) references to "Sections," "Articles," and "Schedules" are to the Sections, Articles, and Schedules of this Agreement; (b) words importing the singular include the plural and vice versa; (c) references to "include," "includes," and "including" shall be deemed to be followed by the words "without limitation"; (d) references to any agreement, instrum

ARTICLE II ESTABLISHMENT OF ESCROW FUNDS

Section 2.1 — Earnest Money Deposit Fund. (a) Escrow Agent shall establish and maintain a segregated escrow account designated "Fairwater REIT / GMP Fund III — Earnest Money Deposit Escrow" (the "EMD Escrow Account") at a federally insured depository institution selected by Escrow Agent. (b) Upon receipt, Escrow Agent shall deposit the following funds into the EMD Escrow Account: (i) the Initial Deposit of Twenty-Sev

Section 2.2 — Indemnity Escrow Fund. (a) Escrow Agent shall establish and maintain a segregated escrow account designated "Fairwater REIT / GMP Fund III — Indemnity Escrow" (the "Indemnity Escrow Account") at a federally insured depository institution selected by Escrow Agent. (b) At Closing, Buyer shall wire Sixteen Million Five Hundred Thousand Dollars ($16,500,000) to the Indemnity Escrow Account. The Indemnity Es

Section 2.3 — Account Segregation. The EMD Escrow Account and the Indemnity Escrow Account shall at all times be maintained as separate and distinct accounts. Funds held in one account shall not be commingled with funds held in the other account or with any other funds held by or on behalf of Escrow Agent or any third party. Escrow Agent shall maintain separate records and accountings for each account and shall provi

ARTICLE III INVESTMENT OF ESCROW FUNDS

Section 3.1 — Investment Direction. Escrow Agent shall invest and reinvest the funds held in the EMD Escrow Account and the Indemnity Escrow Account in Permitted Investments as jointly directed in writing by Buyer and Seller. In the absence of joint written direction from Buyer and Seller, Escrow Agent shall invest all funds in Permitted Investments described in Section 3.3(a) below. Escrow Agent shall have no obliga

Section 3.2 — Interest and Earnings. (a) All interest and earnings on the EMD Escrow Account shall be deemed part of the Earnest Money Deposit for all purposes of this Agreement and shall be disbursed together with the principal of the Earnest Money Deposit in accordance with Article IV. (b) All interest and earnings on the Indemnity Escrow Account shall be deemed part of the Indemnity Escrow Amount for all purposes

Section 3.3 — Permitted Investments. As used herein, "Permitted Investments" means the following: (a) Direct obligations of the United States of America, or obligations the timely payment of principal and interest on which are fully and unconditionally guaranteed by the United States of America; (b) Certificates of deposit, time deposits, or money market deposit accounts at one or more federally insured depository in

Section 3.4 — Tax Reporting. (a) Escrow Agent shall issue IRS Form 1099 (or any successor form) to the Party receiving disbursement of escrow funds, reflecting any interest income or other earnings allocable to such Party. (b) Each Party shall provide Escrow Agent with a completed and duly executed IRS Form W-9 (or any successor form) upon execution of this Agreement. If any Party fails to provide a completed IRS For

ARTICLE IV DISBURSEMENT OF EARNEST MONEY DEPOSIT

Section 4.1 — Disbursement at Closing. (a) Upon the occurrence of the Closing, Escrow Agent shall disburse the entire Earnest Money Deposit (including all accrued and unpaid interest and earnings thereon) to Seller (or as otherwise directed in the closing settlement statement and funds flow memorandum executed by Buyer and Seller) as a credit against the Purchase Price. (b) Disbursement shall be made by federal funds

Section 4.2 — Disbursement to Buyer upon Termination. (a) If the PSA is terminated by Buyer during the Due Diligence Period (i.e., on or before 5:00 p.m. Eastern Time on April 15, 2024) in accordance with Section 5.2 of the PSA, Escrow Agent shall disburse the Initial Deposit (and the Additional Deposit, if then held, though under the terms of the PSA the Additional Deposit would not yet have been deposited), togethe

Section 4.3 — Disbursement to Seller upon Buyer Default. (a) If Seller delivers written notice to Escrow Agent and Buyer certifying that: (i) Buyer has defaulted under the PSA; (ii) Seller has provided Buyer with all notices and cure periods required under the PSA (if any); and (iii) Seller is entitled to retain the Earnest Money Deposit as liquidated damages pursuant to Section 14.1 of the PSA (a "Seller Claim Notic

Section 4.4 — Disbursement to Buyer upon Seller Default. (a) If Buyer delivers written notice to Escrow Agent and Seller certifying that: (i) Seller has defaulted under the PSA; (ii) Buyer has provided Seller with all notices and cure periods required under the PSA (if any); and (iii) Buyer is entitled to the return of the Earnest Money Deposit pursuant to Section 14.2 of the PSA (a "Buyer Claim Notice"), and Seller

Section 4.5 — Liquidated Damages Acknowledgment. The Parties acknowledge and agree that the Earnest Money Deposit, in the aggregate amount of Fifty-Five Million Dollars ($55,000,000), constitutes Seller's sole and exclusive remedy as liquidated damages in the event of Buyer's default under the PSA, and that such amount represents a reasonable estimate of Seller's damages in such event, taking into account, among othe

ARTICLE V DISBURSEMENT OF INDEMNITY ESCROW

Section 5.1 — Claims Against the Indemnity Escrow. (a) During the Indemnity Escrow Period (i.e., the eighteen (18)-month period from the Closing Date through December 6, 2025), Buyer may submit written claims against the Indemnity Escrow Amount by delivering a notice of claim (a "Claim Notice") to Escrow Agent and Seller simultaneously. (b) Each Claim Notice shall specify, with reasonable detail: (i) the nature and f

Section 5.2 — Objection to Claims. (a) Within fifteen (15) Business Days after Seller's receipt of a Claim Notice, Seller may deliver a written objection (a "Claim Objection") to Escrow Agent and Buyer. Each Claim Objection shall specify in reasonable detail the grounds for Seller's objection, including any factual or legal basis for Seller's position that the claim is not a valid claim under the PSA, that the Claime

Section 5.3 — Partial Disbursements. Escrow Agent is authorized and directed to make partial disbursements from the Indemnity Escrow Account as individual claims are submitted, resolved, and determined to be payable, in each case reducing the remaining balance of the Indemnity Escrow Account accordingly. Escrow Agent shall maintain a running ledger of all disbursements from the Indemnity Escrow Account and shall prov

Section 5.4 — Release of Indemnity Escrow at Expiration. (a) Upon the expiration of the Indemnity Escrow Period (December 6, 2025), Escrow Agent shall release to Seller the balance of the Indemnity Escrow Amount then held in the Indemnity Escrow Account, less any amounts that are the subject of then-pending and unresolved Claim Notices for which the applicable objection period has not expired or for which disputes re

Section 5.5 — Interaction with R&W Insurance. (a) The Parties acknowledge that Buyer has obtained a buyer-side representations and warranties insurance policy (the "R&W Policy") issued by Sentinel Specialty Insurance Company, Policy No. SSI-CRE-2024-04819, with a policy limit of Fifty-Five Million Dollars ($55,000,000) and a self-insured retention of Eleven Million Dollars ($11,000,000) (dropping to Five Million Five

ARTICLE VI DUTIES, LIABILITY, AND INDEMNIFICATION OF ESCROW AGENT

Section 6.1 — Duties of Escrow Agent. (a) Escrow Agent undertakes to perform only the duties expressly set forth in this Agreement and shall have no implied duties, obligations, or responsibilities. No provision of this Agreement shall be construed to impose upon Escrow Agent any duty to exercise discretion or independent judgment with respect to any matter, except as expressly set forth herein. (b) Escrow Agent shal

Section 6.2 — Limitation of Liability. (a) Escrow Agent shall not be liable for any action taken or omitted to be taken by it in good faith and in accordance with the terms of this Agreement, except to the extent that such action or omission constitutes gross negligence or willful misconduct on the part of Escrow Agent. (b) Escrow Agent shall not be liable for any loss of principal or interest arising from the invest

Section 6.3 — Indemnification of Escrow Agent. (a) Buyer and Seller, jointly and severally, shall indemnify, defend, and hold harmless Escrow Agent from and against any and all losses, costs, claims, damages, liabilities, and expenses (including reasonable attorneys' fees and disbursements) (collectively, "Escrow Agent Losses") arising out of or in connection with this Agreement or Escrow Agent's performance of its d

Section 6.4 — Right to Resign. (a) Escrow Agent may resign and be discharged from its duties hereunder at any time by giving not less than thirty (30) days' prior written notice of resignation to Buyer and Seller. (b) Upon such resignation, Escrow Agent shall deliver all escrow funds then held by it to a successor escrow agent designated by the joint written instruction of Buyer and Seller. If Buyer and Seller fail t

Section 6.5 — Compensation of Escrow Agent. (a) Escrow Agent shall be entitled to compensation for its services hereunder in accordance with the fee schedule set forth in Schedule 1 attached hereto and incorporated herein by this reference, as such schedule may be modified from time to time by agreement of the Parties. (b) All fees and expenses payable to Escrow Agent shall be borne equally by Buyer and Seller (fifty

Section 6.6 — Right to Counsel. Escrow Agent may, at any time and from time to time, consult with its in-house counsel, including Virginia Moorehead, AVP, National Counsel, or with outside legal counsel of its selection, and shall be fully protected in acting or refraining from acting in accordance with the advice of such counsel. The reasonable fees and expenses of such counsel (to the extent incurred in connection

ARTICLE VII DISPUTE RESOLUTION

Section 7.1 — Interpleader. (a) In the event of any dispute, uncertainty, or disagreement between Buyer and Seller regarding entitlement to any portion of the escrow funds held hereunder, or in the event that Escrow Agent receives conflicting instructions from Buyer and Seller with respect to the disbursement of any escrow funds, Escrow Agent may, at its sole option and discretion (but shall not be required to), depo

Section 7.2 — Litigation Hold. Pending the resolution of any dispute between Buyer and Seller regarding entitlement to any portion of the escrow funds, whether by interpleader, litigation, settlement, or otherwise, Escrow Agent shall continue to hold the disputed funds in the applicable escrow account and shall continue to invest such funds in Permitted Investments in accordance with Article III. Escrow Agent shall n

Section 7.3 — Governing Law and Jurisdiction. (a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law that would require the application of the laws of another jurisdiction. (b) Each Party irrevocably and unconditionally agrees that any action, suit, or proceeding arising out of or relating to this Agreement or the tr

Section 8.1 — Notice Addresses. All notices, requests, demands, claims, consents, waivers, approvals, instructions, and other communications required or permitted under this Agreement shall be directed to the Parties at the following addresses (or at such other address as any Party may designate from time to time in accordance with Section 8.3): If to Buyer: Fairwater Real Estate Investment Trust 7200 Chesapeake Park

Section 8.2 — Method of Notice. All notices and other communications under this Agreement shall be in writing and shall be deemed duly given and received: (a) upon personal delivery to the Party to be notified; (b) on the first (1st) Business Day after deposit with a nationally recognized overnight courier service (such as Sundial Data Systems, Halcyon Partners LLC, or Tarrant & Co.), with all charges prepaid and add

Section 8.3 — Change of Address. Any Party may change its address or email address for purposes of notices under this Agreement by giving written notice of such change to each of the other Parties in accordance with the provisions of Section 8.2 above. Any such change shall be effective upon receipt of such notice.

ARTICLE IX WIRE TRANSFER INSTRUCTIONS

Section 9.1 — Buyer's Wire Instructions. The wire transfer instructions for Buyer are set forth in Schedule 2 attached hereto. Buyer anticipates that disbursements to Buyer shall be directed to its operating account at Aldgate National Bank, N.A., 383 Madison Avenue, New York, New York 10179, or such other account as Buyer may designate in writing to Escrow Agent and Seller. Buyer may change its wire transfer instruc

Section 9.2 — Seller's Wire Instructions. The wire transfer instructions for Seller are set forth in Schedule 3 attached hereto. Disbursements to Seller shall be directed to Seller's account at Magnolia Commerce Bank, N.A., 225 Peachtree Street NE, Suite 100, Atlanta, Georgia 30303, or such other account as Seller may designate in writing to Escrow Agent and Buyer. The bank contact for Seller's account is Linda Presc

Section 9.3 — Escrow Agent's Wire Instructions. The wire transfer instructions for deposits into the EMD Escrow Account and the Indemnity Escrow Account are set forth in Schedule 4 attached hereto. Such instructions shall reflect the designated escrow bank account of Commonwealth National Title Insurance Company. Escrow Agent may update its wire transfer instructions from time to time by written notice to Buyer and S

Section 9.4 — Verification Procedures. (a) Escrow Agent shall verify all outgoing wire transfer instructions by telephone callback to an authorized representative of the Party designated to receive the disbursement prior to any disbursement exceeding One Hundred Thousand Dollars ($100,000). Escrow Agent shall not be obligated to execute any wire transfer until such telephone verification has been satisfactorily compl

Section 10.1 — Amendments. This Agreement may not be amended, modified, supplemented, or waived except by a written instrument duly executed by each of Buyer, Seller, and Escrow Agent. No oral agreement or course of dealing shall constitute an amendment to this Agreement.

Section 10.2 — Entire Agreement. This Agreement, together with the PSA, the Schedules attached hereto, and the wire transfer instructions delivered pursuant to Article IX, constitutes the entire agreement among the Parties with respect to the escrow arrangements contemplated hereby and supersedes all prior and contemporaneous agreements, understandings, negotiations, discussions, representations, and warranties, whet

Section 10.3 — Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns; provided, however, that no Party may assign its rights or obligations under this Agreement without the prior written consent of the other Parties, which consent may be withheld in the sole di

Section 10.4 — Severability. If any provision of this Agreement (or any portion thereof) is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement. The remaining provisions shall continue in full force and effect, and the Parties shall negotiate in good faith to replace the invalid, ill

Section 10.5 — Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures delivered by facsimile, by email in portable document format (PDF), or by any other electronic transmission method (including Brightwater Software or similar electronic signature platform) shall have the

Section 10.6 — Waiver. No failure or delay by any Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof. No single or partial exercise of any right, power, or remedy shall preclude any further exercise thereof or the exercise of any other right, power, or remedy. No waiver of any breach or default shall constitute a waiver of any prior, concurrent, or subsequent breach

Section 10.7 — Headings. The headings and captions of the Articles, Sections, and Schedules of this Agreement are inserted for convenience of reference only and shall not affect the meaning, interpretation, or construction of any provision of this Agreement.

Section 10.8 — Relationship of Parties. Escrow Agent is acting solely in its capacity as escrow agent under this Agreement and is not acting as a trustee, fiduciary, agent, or representative of Buyer or Seller, except to the limited extent expressly set forth in this Agreement. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between or among the

Section 10.9 — Patriot Act / Anti-Money Laundering Compliance. (a) Each Party represents and warrants to the other Parties and to Escrow Agent that it is in compliance with all applicable anti-money laundering laws and regulations, including without limitation the USA PATRIOT Act of 2001 (Title III of Pub. L. 107-56), the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq.), and all regulations promulgated thereunder, and th