1036-00004 · Client 1036 · Closing/Assignments

assignment-membership-interests-fairfield-ii.docx DOCUMENT Real Estate

6 / 172 ← → ✕

ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS

GMP Fairfield II LLC

Dated as of June 6, 2024

Reference is made to the Purchase and Sale Agreement dated as of February 28, 2024, as amended by the First Amendment to Purchase and Sale Agreement dated as of April 12, 2024, and the Second Amendment to Purchase and Sale Agreement dated as of May 28, 2024 (collectively, as so amended, the "PSA"), by and between Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership, and Fairwater Real Estate Investment Trust, a Maryland real estate investment trust.

ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS

GMP FAIRFIELD II LLC

This Assignment and Assumption of Membership Interests (this "Assignment") is entered into as of June 6, 2024 (the "Closing Date"), by and between:

ASSIGNOR:

Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership ("Assignor" or "Seller"), acting by and through its general partner, Greystone Meridian Capital LLC, a Delaware limited liability company, having its principal office at 3300 Peachtree Road NE, Suite 2200, Atlanta, Georgia 30326, with a registered agent address of 1209 Orange Street, Wilmington, Delaware 19801 (Employer Identification Number: 83-1647205);

and

ASSIGNEE:

Fairwater Real Estate Investment Trust, a Maryland real estate investment trust ("Assignee" or "Buyer"), having its principal office at 7200 Chesapeake Parkway, Suite 1100, Columbia, Maryland 21044 (Employer Identification Number: 52-2198437; NYSE ticker symbol: FREIT).

Assignor and Assignee are sometimes referred to herein individually as a "Party" and collectively as the "Parties."

THE COMPANY:

GMP Fairfield II LLC, a Delaware limited liability company (the "Company"), formed under the laws of the State of Delaware (Employer Identification Number: 84-2310578). The Company is a single-purpose entity that owns the real property known as Fairfield Logistics Center II, located at 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213 (as more particularly described herein and on Exhibit B attached hereto, the "Property").

RECITALS

WHEREAS, the Company is a Delaware limited liability company and a single-purpose entity formed for the purpose of owning and operating the real property known as Fairfield Logistics Center II, a logistics facility comprising approximately 387,000 rentable square feet, located at 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213 (the "Property"), which facility was constructed and placed in service in 2020;

WHEREAS, Assignor is the sole member of the Company and owns one hundred percent (100%) of the issued and outstanding membership interests in the Company (the "Membership Interests"), and no other person or entity holds any membership interest, economic interest, or other equity interest in the Company;

WHEREAS, Assignor and Assignee entered into that certain Purchase and Sale Agreement, dated as of February 28, 2024 (as amended by the First Amendment to Purchase and Sale Agreement dated as of April 12, 2024, and the Second Amendment to Purchase and Sale Agreement dated as of May 28, 2024, collectively, the "PSA"), pursuant to which Assignor agreed to sell, and Assignee agreed to purchase, among other interests, one hundred percent (100%) of the Membership Interests in the Company, as part of a portfolio transaction involving fourteen (14) property-owning single-purpose Delaware limited liability companies (each, a "Target Entity"), for an aggregate purchase price of One Billion One Hundred Million Dollars ($1,100,000,000) (subject to adjustment as provided in the PSA);

WHEREAS, the PSA is governed by the laws of the State of New York, without regard to conflict of laws principles that would require the application of the laws of any other jurisdiction;

WHEREAS, the transfer of the Membership Interests constitutes a change of control under each existing mortgage loan agreement securing the properties held by the Target Entities, and all required lender consents have been obtained, including the consent of Pinnacle Federal Bank, N.A. (received on June 4, 2024), with respect to the loan secured by the Property, designated as Loan 1-B under the Master Loan Agreement dated as of September 15, 2020, between certain of the Target Entities (as borrowers) and Pinnacle Federal Bank, N.A. (as lender) (the "Master Loan Agreement");

WHEREAS, the Property is encumbered by Loan 1-B under the Master Loan Agreement, which indebtedness is being assumed by Assignee pursuant to the terms of the PSA and a separate Assumption Agreement of even date herewith (the "Assumption Agreement"), and the existing mortgage, deed of trust, security agreement, and related loan documents securing Loan 1-B shall remain in full force and effect following the consummation of the transactions contemplated hereby;

WHEREAS, all conditions precedent to the closing of the transaction contemplated by the PSA, including all conditions set forth in Article VIII thereof, have been satisfied or duly waived in writing by the applicable Party as of the Closing Date;

WHEREAS, Assignor desires to assign, transfer, convey, and deliver to Assignee, and Assignee desires to accept and assume from Assignor, all of Assignor's right, title, and interest in and to the Membership Interests, upon the terms and subject to the conditions set forth herein and in the PSA; and

WHEREAS, the execution and delivery of this Assignment is a condition to the closing of the transactions contemplated by the PSA and is being delivered simultaneously with the other closing deliverables specified therein.

NOW, THEREFORE, for and in consideration of the mutual covenants, agreements, representations, and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE I — DEFINITIONS

Section 1.1 — Defined Terms

Capitalized terms used but not otherwise defined in this Assignment shall have the respective meanings ascribed to them in the PSA. In the event of any inconsistency between a definition set forth in this Assignment and the corresponding definition in the PSA, the definition in the PSA shall control, except to the extent that this Assignment expressly provides otherwise. The following terms shall have the meanings set forth below when used in this Assignment:

"A&R Operating Agreement" has the meaning set forth in Section 5.2 of this Assignment.

"Assignment" means this Assignment and Assumption of Membership Interests, including all exhibits and schedules attached hereto, as the same may be amended, modified, or supplemented from time to time in accordance with the terms hereof.

"Assumption Agreement" means that certain Assumption Agreement, dated as of the Closing Date, by and among Assignor, Assignee, and Pinnacle Federal Bank, N.A., pursuant to which Assignee assumes the obligations of the borrowers under the Master Loan Agreement with respect to Loan 1-B.

"Closing Date" means June 6, 2024.

"Company" means GMP Fairfield II LLC, a Delaware limited liability company, having Employer Identification Number 84-2310578, formed under the laws of the State of Delaware.

"Master Loan Agreement" means that certain Master Loan Agreement, dated as of September 15, 2020, by and among certain of the Target Entities (as borrowers) and Pinnacle Federal Bank, N.A. (as lender), as amended, restated, supplemented, or otherwise modified from time to time prior to the date hereof.

"Membership Interests" means one hundred percent (100%) of the issued and outstanding membership interests in the Company, as more particularly described on Exhibit A attached hereto, representing all of the economic and voting interests in the Company.

"Permitted Exceptions" means those liens, encumbrances, easements, restrictions, covenants, conditions, and other matters affecting title to the Property that are set forth on Exhibit P to the PSA and are permitted to remain as encumbrances on the Property following the Closing Date, as well as any restrictions arising under applicable federal and state securities laws.

"Property" means the real property and improvements known as Fairfield Logistics Center II, located at 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213, comprising a logistics facility of approximately 387,000 rentable square feet, as more particularly described on Exhibit B attached hereto, together with all rights, privileges, and appurtenances pertaining thereto.

"PSA" means the Purchase and Sale Agreement, dated as of February 28, 2024, by and between Assignor and Assignee, as amended by the First Amendment to Purchase and Sale Agreement dated as of April 12, 2024, and the Second Amendment to Purchase and Sale Agreement dated as of May 28, 2024, and as the same may be further amended, modified, or supplemented from time to time in accordance with the terms thereof.

ARTICLE II — ASSIGNMENT AND ASSUMPTION

Section 2.1 — Assignment of Membership Interests

Effective as of the Closing Date, Assignor hereby irrevocably assigns, transfers, conveys, sets over, and delivers to Assignee all of Assignor's right, title, and interest in and to the Membership Interests, constituting one hundred percent (100%) of the issued and outstanding membership interests in the Company, free and clear of all liens, claims, encumbrances, pledges, security interests, charges, options, rights of first refusal, preemptive rights, and adverse claims of any kind or nature whatsoever, other than (a) restrictions arising under applicable federal and state securities laws, (b) any encumbrances expressly permitted under the PSA, and (c) the Permitted Exceptions. The Membership Interests being transferred pursuant to this Section 2.1 are more particularly described on Exhibit A attached hereto and incorporated herein by reference.

The Membership Interests are being transferred as part of the transactions contemplated by the PSA, and this Assignment is being delivered in partial fulfillment of Assignor's obligations under the PSA with respect to the closing of such transactions. The transfer of the Membership Interests hereunder shall be deemed to have occurred simultaneously with the transfer of the membership interests in each of the other Target Entities pursuant to the separate assignment and assumption agreements being executed and delivered concurrently herewith.

Section 2.2 — Acceptance and Assumption by Assignee

Effective as of the Closing Date, Assignee hereby accepts the assignment of the Membership Interests described in Section 2.1 above and assumes and agrees to observe, perform, and discharge, in accordance with their respective terms, all of the duties, obligations, covenants, and liabilities of the sole member of the Company arising from and after the Closing Date, including, without limitation, the following:

(a) All obligations of the sole member under the Company's operating agreement, as such operating agreement is being amended and restated as of the Closing Date in the form of the A&R Operating Agreement described in Section 5.2 hereof;

(b) All obligations under the leases, license agreements, service contracts, maintenance agreements, and other agreements to which the Company is a party or by which the Company or the Property is bound, to the extent such obligations accrue or relate to the period from and after the Closing Date, subject to the proration provisions of the PSA;

(c) All obligations with respect to tenant security deposits held by the Company, representing the Company's proportionate share of the aggregate Four Million Two Hundred Eighty-Three Thousand Dollars ($4,283,000) in tenant security deposits across the portfolio, which security deposits are held in accounts at Magnolia Commerce Bank, N.A., and which Assignee acknowledges will be transferred or credited to Assignee at closing in accordance with the terms of the PSA;

(d) All obligations under the mortgage loan documents relating to Loan 1-B under the Master Loan Agreement dated September 15, 2020, with Pinnacle Federal Bank, N.A., as such obligations are assumed by Assignee pursuant to the Assumption Agreement, including all payment obligations, reserve deposit obligations, reporting obligations, and compliance covenants arising from and after the Closing Date; and

(e) All other obligations and liabilities of the sole member of the Company arising from and after the Closing Date, whether known or unknown, fixed or contingent, accrued or unaccrued, to the extent arising out of or relating to the ownership, operation, maintenance, management, or condition of the Property from and after the Closing Date.

By accepting the Membership Interests and assuming the obligations set forth in this Section 2.2, Assignee acknowledges that it is becoming the sole member and manager of the Company and will be responsible for all governance, management, and operational matters relating to the Company from and after the Closing Date.

Section 2.3 — Excluded Liabilities

Notwithstanding anything to the contrary in Section 2.2 above, Assignee does not assume and shall not be responsible or liable for any obligations, liabilities, claims, demands, actions, losses, costs, or expenses of Assignor or the Company (collectively, "Excluded Liabilities") that accrued or arose prior to the Closing Date, except (a) as expressly provided in the PSA, including, without limitation, any obligations that are subject to the proration and working-capital true-up mechanism set forth in Exhibit U to the PSA, and (b) any ongoing obligations under the mortgage loan documents (to the extent relating to principal indebtedness originally incurred prior to the Closing Date that is being assumed by Assignee pursuant to the Assumption Agreement). For the avoidance of doubt, Excluded Liabilities shall include, without limitation, (i) any pre-closing tax liabilities of Assignor or the Company (except to the extent prorated in accordance with the PSA), (ii) any pre-closing litigation or claims relating to the Property or the Company, (iii) any obligations arising from Assignor's breach of any representation, warranty, or covenant prior to the Closing Date, and (iv) any liability for environmental matters to the extent arising from conditions existing prior to the Closing Date, subject in each case to the terms and limitations of the PSA.

ARTICLE III — REPRESENTATIONS AND WARRANTIES OF ASSIGNOR

Assignor hereby represents and warrants to Assignee as of the Closing Date as follows:

Section 3.1 — Authority and Due Execution

Assignor, Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership, acting by and through its general partner, Greystone Meridian Capital LLC, a Delaware limited liability company, has full power, authority, and legal right to execute, deliver, and perform its obligations under this Assignment and to consummate the transactions contemplated hereby. Victor Lansdell and Elise Rathborne, as Co-Founders and Managing Partners of Greystone Meridian Capital LLC, have been duly authorized to execute this Assignment on behalf of Assignor pursuant to the organizational documents of Greystone Meridian Capital LLC and the limited partnership agreement of Assignor. The execution, delivery, and performance of this Assignment by Assignor have been duly authorized by all necessary partnership action on the part of Assignor and all necessary limited liability company action on the part of Greystone Meridian Capital LLC, and no further approval, consent, authorization, or other action by any partner, member, manager, or other person is required in connection therewith. This Assignment has been duly and validly executed and delivered by Assignor and constitutes the legal, valid, and binding obligation of Assignor, enforceable against Assignor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.

Section 3.2 — Ownership of Membership Interests

Assignor is the sole member of the Company and holds one hundred percent (100%) of the issued and outstanding Membership Interests in the Company. No other person or entity owns or holds any membership interest, economic interest, profits interest, or other equity interest or right to acquire any such interest in the Company. The Membership Interests are free and clear of all liens, pledges, security interests, encumbrances, claims, options, rights of first refusal, preemptive rights, transfer restrictions, and adverse claims of any kind or nature whatsoever, other than (a) restrictions arising under applicable federal and state securities laws, and (b) encumbrances that have been discharged or released as of or prior to the Closing Date, including, without limitation, any Uniform Commercial Code financing statements (UCC-1) filed against the Membership Interests, which are being terminated as of the Closing Date by the filing of appropriate UCC-3 termination statements with the Delaware Secretary of State. The Membership Interests have been duly authorized and validly issued in accordance with the Delaware Limited Liability Company Act and the operating agreement of the Company. There are no outstanding options, warrants, rights, agreements, commitments, or other arrangements obligating Assignor or the Company to issue, sell, transfer, or otherwise dispose of any membership interests or other equity interests in the Company.

Section 3.3 — No Conflict

The execution, delivery, and performance of this Assignment by Assignor, and the consummation of the transactions contemplated hereby, do not and will not (a) conflict with, violate, or result in any breach of the certificate of limited partnership, limited partnership agreement, or any other organizational document of Assignor, or the certificate of formation, operating agreement, or any other organizational document of the Company; (b) conflict with, violate, result in a breach or default under, or give rise to any right of termination, cancellation, acceleration, or other right under any contract, agreement, instrument, permit, license, or other arrangement to which Assignor or the Company is a party or by which Assignor, the Company, the Membership Interests, or the Property is bound or affected; or (c) violate any applicable law, statute, regulation, ordinance, rule, order, judgment, injunction, decree, or governmental requirement applicable to Assignor, the Company, the Membership Interests, or the Property, including, without limitation, any applicable securities laws.

Section 3.4 — Consents

All consents, approvals, authorizations, orders, filings, registrations, and qualifications of or with any governmental authority or any other person that are required for the valid execution, delivery, and performance of this Assignment by Assignor and the valid transfer of the Membership Interests to Assignee have been duly obtained or made and are in full force and effect. Without limiting the generality of the foregoing, Assignor has obtained the consent of Pinnacle Federal Bank, N.A. (such consent having been received on June 4, 2024, and documented by an executed lender consent letter of even date therewith) with respect to the change of control of the Company resulting from the transfer of the Membership Interests, as required under the Master Loan Agreement dated September 15, 2020, and the related loan documents. No additional consent, approval, or authorization is required under the organizational documents of Assignor or the Company, or under any other agreement to which Assignor or the Company is a party, in connection with the consummation of the transactions contemplated by this Assignment.

Section 3.5 — PSA Representations

The representations and warranties set forth in this Article III are in addition to, and not in limitation or derogation of, the representations and warranties of Assignor contained in the PSA (including, without limitation, the representations and warranties set forth in Article V thereof), all of which are hereby incorporated herein by reference as if fully set forth herein. The bring-down of such representations and warranties as of the Closing Date is set forth in the Seller's Closing Certificate executed and delivered by Assignor concurrently herewith in accordance with Section 8.1(e) of the PSA. In the event of any conflict between the representations and warranties contained in this Article III and the representations and warranties contained in the PSA, the representations and warranties contained in the PSA shall control.

ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF ASSIGNEE

Assignee hereby represents and warrants to Assignor as of the Closing Date as follows:

Section 4.1 — Authority and Due Execution

Assignee, Fairwater Real Estate Investment Trust, a Maryland real estate investment trust, has full power, authority, and legal right to execute, deliver, and perform its obligations under this Assignment and to consummate the transactions contemplated hereby, including the acceptance of the Membership Interests and the assumption of the obligations set forth in Section 2.2. This Assignment has been duly authorized by all necessary trust and corporate action on the part of Assignee, including, without limitation, the adoption of resolutions by the Board of Trustees of Fairwater Real Estate Investment Trust authorizing the execution, delivery, and performance of this Assignment and the consummation of the transactions contemplated hereby and by the PSA. This Assignment has been duly and validly executed and delivered by Assignee and constitutes the legal, valid, and binding obligation of Assignee, enforceable against Assignee in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.

Section 4.2 — Solvency

Assignee is solvent and will not be rendered insolvent by the consummation of the transactions contemplated by this Assignment, the PSA, or any of the other agreements and instruments delivered in connection herewith. Assignee is not entering into this Assignment or any of the transactions contemplated hereby with the actual intent to hinder, delay, or defraud any present or future creditor of Assignee. As of the Closing Date and after giving effect to the transactions contemplated by this Assignment and the PSA, (a) the fair value of Assignee's assets will exceed the sum of its liabilities, (b) the present fair salable value of Assignee's assets will exceed its probable liability on its existing debts as they become absolute and matured, and (c) Assignee will be able to pay its debts and other liabilities as they mature in the normal course of business.

Section 4.3 — PSA Representations

The representations and warranties of Assignee contained in the PSA (including, without limitation, the representations and warranties set forth in Article VI thereof) are hereby incorporated herein by reference as if fully set forth herein. The bring-down of such representations and warranties as of the Closing Date is set forth in the Buyer's Closing Certificate executed and delivered by Assignee concurrently herewith in accordance with Section 8.2(d) of the PSA. In the event of any conflict between the representations and warranties contained in this Article IV and the representations and warranties contained in the PSA, the representations and warranties contained in the PSA shall control.

ARTICLE V — ADDITIONAL COVENANTS AND AGREEMENTS

Section 5.1 — Further Assurances

Each Party hereby covenants and agrees that, from time to time after the Closing Date, at the request of the other Party and without further consideration, it shall execute and deliver, or cause to be executed and delivered, such additional instruments, documents, certificates, and agreements, and take or cause to be taken such additional actions, as the requesting Party may reasonably request in order to more effectively assign, transfer, and convey the Membership Interests to Assignee, to confirm Assignee's status as the sole member and manager of the Company, and to otherwise effectuate the purposes and intent of this Assignment. Without limiting the generality of the foregoing, the Parties shall cooperate in connection with (a) the filing of an updated Certificate of Amendment or other appropriate filing with the Delaware Secretary of State to reflect the change in the sole member of the Company, (b) any required foreign qualification updates or amendments with the Georgia Secretary of State or the Fulton County Clerk of Superior Court, (c) the filing of UCC-3 termination statements with respect to any UCC-1 financing statements previously filed against the Membership Interests, and (d) any other filings or registrations with governmental authorities that may be necessary or desirable in connection with the consummation of the transactions contemplated hereby.

Section 5.2 — Amended and Restated Operating Agreement

The Parties acknowledge and agree that, concurrently with the execution and delivery of this Assignment, the existing operating agreement of the Company is being amended and restated in its entirety by the execution and delivery of that certain Amended and Restated Operating Agreement of GMP Fairfield II LLC (the "A&R Operating Agreement"), in the form attached to the PSA as Exhibit M, to reflect Assignee as the sole member and manager of the Company and to set forth the governance and operational provisions applicable to the Company from and after the Closing Date. The A&R Operating Agreement shall be effective as of the Closing Date, simultaneously with the effectiveness of the assignment of the Membership Interests pursuant to Section 2.1 hereof.

Section 5.3 — Post-Closing Obligations

Assignee acknowledges and agrees that it is bound by and shall comply with the post-closing obligations set forth in the PSA, including, without limitation, the following:

(a) Proration True-Up. The ninety (90)-day post-closing proration true-up contemplated by Section 10.2 of the PSA, pursuant to which the Parties shall reconcile the prorations of revenues, expenses, taxes, and other amounts with respect to the Property and the other properties included in the portfolio transaction, with a deadline for completion of such true-up of September 4, 2024;

(b) SNDA Delivery. The delivery of remaining subordination, non-disturbance, and attornment agreements ("SNDAs") within thirty (30) days following the Closing Date, as required by Section 7.4(c) of the PSA, with respect to certain tenants of the Property and the other properties included in the portfolio transaction for which SNDAs were not obtained prior to closing;

(c) Property Management Transition. The transition of property management services with respect to the Property from Argyle Property Services LLC, the current property manager, to Fairwater Property Management LLC, an affiliate of Assignee, pursuant to the terms of that certain Transition Services Agreement dated as of June 6, 2024 (the "Transition Services Agreement"), by and between Argyle Property Services LLC and Fairwater Property Management LLC, which provides for an orderly transition period of up to sixty (60) days following the Closing Date; and

(d) Other Post-Closing Matters. Such other post-closing obligations and deliverables as may be specified in the PSA or in any of the other agreements and instruments delivered in connection with the closing of the transactions contemplated thereby.

Section 5.4 — Tax Matters

Assignor and Assignee acknowledge and agree that the purchase price for the Membership Interests has been allocated among the assets of the Company in accordance with the Purchase Price Allocation Schedule set forth on Exhibit K to the PSA, which allocation was prepared in accordance with Section 1060 of the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury Regulations promulgated thereunder. The allocation of the purchase price attributable to the Company as set forth on Exhibit K to the PSA shall be used by both Parties, and their respective affiliates, for all federal, state, and local tax reporting purposes, including, without limitation, with respect to the preparation and filing of IRS Form 8594 (Asset Acquisition Statement Under Section 1060) and any applicable Georgia transfer tax declarations or similar filings.

Assignor and Assignee shall cooperate in good faith with respect to any tax filings related to the transfer of the Membership Interests, including the timely preparation and filing of IRS Form 8594, any required state or local tax returns, and any other tax-related filings or reports. Neither Party shall take any tax reporting position that is inconsistent with the purchase price allocation set forth on Exhibit K to the PSA without the prior written consent of the other Party, except as may be required by a final determination (within the meaning of Section 1313 of the Code) by the Internal Revenue Service or other applicable taxing authority. The obligations of the Parties under this Section 5.4 shall survive the Closing Date.

ARTICLE VI — INDEMNIFICATION

Section 6.1 — Survival and Indemnification

The Parties' respective indemnification rights and obligations with respect to the representations, warranties, covenants, and agreements contained in the PSA and this Assignment shall be governed by, and subject to, the indemnification provisions set forth in Article XI of the PSA, which provisions are hereby incorporated herein by reference as if fully set forth herein. Without limiting the generality of the foregoing, the following terms and limitations, as set forth in the PSA, shall apply to any indemnification claims arising under or in connection with this Assignment:

(a) General Representation Survival Period. The representations and warranties of the Parties contained in the PSA and this Assignment (other than Fundamental Representations and Tax Representations, as defined in the PSA) shall survive the Closing Date for a period of eighteen (18) months, expiring on December 6, 2025;

(b) Tax Representation Survival Period. The Tax Representations (as defined in the PSA) shall survive the Closing Date for a period of thirty-six (36) months, expiring on June 6, 2027;

(c) General Representation Cap. The aggregate liability of any indemnifying Party for indemnification claims based on breaches of general representations and warranties (other than Fundamental Representations and Tax Representations) shall not exceed Fifty-Five Million Dollars ($55,000,000), representing five percent (5%) of the aggregate purchase price under the PSA;

(d) Fundamental Representation Cap. The aggregate liability of any indemnifying Party for indemnification claims based on breaches of Fundamental Representations (as defined in the PSA) shall not exceed One Hundred Ten Million Dollars ($110,000,000), representing ten percent (10%) of the aggregate purchase price under the PSA;

(e) Basket (Tipping). No indemnifying Party shall be liable for indemnification claims based on breaches of general representations and warranties until the aggregate amount of all such claims exceeds Five Million Five Hundred Thousand Dollars ($5,500,000) (the "Basket"), representing one-half of one percent (0.5%) of the aggregate purchase price under the PSA, at which point the indemnifying Party shall be liable for the full amount of all such claims from the first dollar (i.e., the Basket is a tipping basket and not a true deductible);

(f) De Minimis Threshold. No individual claim for indemnification based on a breach of a general representation or warranty shall be counted toward the Basket or be otherwise indemnifiable unless the amount of such individual claim exceeds Two Hundred Seventy-Five Thousand Dollars ($275,000) (the "De Minimis Threshold"); and

(g) Seller Indemnity Escrow. An amount equal to Sixteen Million Five Hundred Thousand Dollars ($16,500,000) of the aggregate purchase price has been deposited into an escrow account held by Commonwealth National Title Insurance Company, as escrow agent, pursuant to the Indemnity Escrow Agreement of even date herewith, as security for Assignor's indemnification obligations under the PSA and this Assignment.

In addition to the indemnification obligations of the Parties set forth in the PSA and the Seller Indemnity Escrow described above, the Parties acknowledge that a representations and warranties insurance policy (the "R&W Insurance Policy") has been issued by Sentinel Specialty Insurance Company in connection with the transactions contemplated by the PSA, with a policy limit of Fifty-Five Million Dollars ($55,000,000) and a retention of Eleven Million Dollars ($11,000,000). The R&W Insurance Policy provides additional coverage to Assignee for losses arising from breaches of the representations and warranties of Assignor contained in the PSA, subject to the terms, conditions, exclusions, and limitations set forth in the R&W Insurance Policy. Nothing in this Section 6.1 shall be deemed to limit or modify the terms of the R&W Insurance Policy.

ARTICLE VII — MISCELLANEOUS

Section 7.1 — Governing Law

This Assignment shall be governed by and construed in accordance with the laws of the State of New York, consistent with the governing law provision of the PSA, without regard to conflict of laws principles that would require the application of the laws of any other jurisdiction; provided, however, that (a) matters relating to the internal affairs of the Company, including, without limitation, the formation, governance, operation, rights and obligations of members, and dissolution of the Company, as a Delaware limited liability company, shall be governed by the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), and (b) matters relating to the ownership, use, transfer, encumbrance, and taxation of the Property, and matters relating to real property law generally, shall be governed by the laws of the State of Georgia.

Section 7.2 — Entire Agreement

This Assignment, together with the PSA (as amended), the A&R Operating Agreement, the Assumption Agreement, and all other agreements, instruments, certificates, and documents executed and delivered in connection with the closing of the transactions contemplated by the PSA, constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior agreements, understandings, negotiations, discussions, representations, and warranties, whether written or oral, express or implied, with respect to the assignment and assumption of the Membership Interests. No representation, warranty, promise, inducement, or statement of intention has been made by either Party that is not embodied in this Assignment, the PSA, or the other transaction documents, and no Party shall be bound by or liable for any alleged representation, warranty, promise, inducement, or statement of intention not so set forth.

Section 7.3 — Binding Effect

This Assignment shall be binding upon and shall inure to the benefit of the Parties and their respective successors, assigns, heirs, executors, administrators, and legal representatives. Neither Party may assign this Assignment or any of its rights or obligations hereunder without the prior written consent of the other Party, except as expressly permitted by the PSA.

Section 7.4 — Counterparts

This Assignment may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. The exchange of copies of this Assignment and of signature pages by electronic transmission (including by portable document format (.pdf), Brightwater Software, or other electronic signature platform) shall constitute effective execution and delivery of this Assignment as to the Parties and may be used in lieu of an original Assignment for all purposes. Signatures transmitted by electronic means shall be deemed original signatures for all purposes.

Section 7.5 — Waiver and Amendment

No provision of this Assignment may be waived, modified, supplemented, or amended except by a written instrument duly executed by the Party against whom enforcement of such waiver, modification, supplement, or amendment is sought. No waiver by any Party of any breach or default hereunder shall be deemed a waiver of any preceding or subsequent breach or default, whether of the same or similar nature. No exercise or failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Assignment shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

Section 7.6 — Severability

If any term, provision, covenant, or restriction of this Assignment is held by a court of competent jurisdiction or other governmental authority to be invalid, void, unenforceable, or against public policy, the remaining terms, provisions, covenants, and restrictions of this Assignment shall remain in full force and effect and shall in no way be affected, impaired, or invalidated, so long as the economic and legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to either Party. Upon such a determination of invalidity, the Parties shall negotiate in good faith to modify this Assignment so as to give effect to the original intent of the Parties to the fullest extent permitted by applicable law.

Section 7.7 — Notices

All notices, requests, demands, consents, waivers, and other communications required or permitted to be given under this Assignment shall be in writing and shall be given in accordance with the notice provisions set forth in Section 13.1 of the PSA, which are hereby incorporated herein by reference. For the avoidance of doubt, the notice addresses of the Parties are as follows:

If to Assignor:

Greystone Meridian Partners Fund III, L.P. c/o Greystone Meridian Capital LLC 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326

Attention: Victor Lansdell, Co-Founder & Managing Partner

Email: vlansdell@greystonemeridian.com

with a copy (which shall not constitute notice) to:

Blackridge Hayes LLP 1285 Avenue of the Americas, 34th Floor New York, New York 10019

Attention: Nathaniel Pryce

Email: npryce@blackridgehayes.com

If to Assignee:

Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044

Attention: David Elgin Park, General Counsel

Email: dpark@fairwaterreit.com

with a copy (which shall not constitute notice) to:

Calderwood & Harkness LLP 450 Park Avenue, 28th Floor New York, New York 10022

Attention: Douglas Fairchild

Email: dfairchild@calderwoodharkness.com

Section 7.8 — Headings

The section headings and article headings contained in this Assignment are inserted for convenience of reference only and shall not affect, and shall not be considered in, the meaning, interpretation, or construction of any provision of this Assignment.

Section 7.9 — Third-Party Beneficiaries

Except as expressly provided in this Section 7.9, this Assignment is not intended to, and shall not, confer upon any person other than the Parties hereto and their respective permitted successors and assigns any legal or equitable rights, remedies, obligations, or liabilities, including any right to enforce any provision of this Assignment; provided, however, that Pinnacle Federal Bank, N.A., as lender under the Master Loan Agreement and the loan documents securing Loan 1-B, shall be an express third-party beneficiary of Assignee's assumption obligations set forth in Section 2.2(d) hereof, and Pinnacle Federal Bank, N.A. shall have the right to enforce such assumption obligations directly against Assignee to the extent permitted by applicable law and the terms of the Assumption Agreement.

Section 7.10 — Construction

In the event of any conflict or inconsistency between the terms and provisions of this Assignment and the terms and provisions of the PSA, the terms and provisions of the PSA shall prevail and control. The Parties acknowledge that each Party and its counsel have reviewed and revised this Assignment and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Assignment or any amendment or exhibit hereto. As used in this Assignment, the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation," and the word "or" shall not be exclusive.

[SIGNATURE PAGES FOLLOW]

IN WITNESS WHEREOF, the Parties have executed this Assignment and Assumption of Membership Interests as of the date first written above.

ASSIGNOR:

GREYSTONE MERIDIAN PARTNERS FUND III, L.P., a Delaware limited partnership

By: Greystone Meridian Capital LLC,

a Delaware limited liability company, its General Partner

By: ________

Name: Victor Lansdell

Title: Co-Founder & Managing Partner

Date: June 6, 2024

ASSIGNEE:

FAIRWATER REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust

By: ________

Name: Marcus Devereaux

Title: Executive Vice President, Acquisitions

Date: June 6, 2024

ACKNOWLEDGMENT AND CONSENT OF THE COMPANY

The undersigned, GMP Fairfield II LLC, a Delaware limited liability company (the "Company"), by its duly authorized representative, hereby (a) acknowledges receipt of a copy of the foregoing Assignment and Assumption of Membership Interests (the "Assignment"), (b) consents to the assignment and assumption of the Membership Interests set forth therein, (c) confirms that, as of the Closing Date, the Assignee is the sole member and manager of the Company, and (d) agrees to update its books and records to reflect the foregoing. This acknowledgment and consent is being executed by the authorized representative of the Company prior to the effectiveness of the assignment of the Membership Interests as contemplated by the Assignment, and such authorized representative has been duly authorized by Assignor, as the current sole member of the Company, to execute this acknowledgment and consent on behalf of the Company.

GMP FAIRFIELD II LLC, a Delaware limited liability company

By: ________

Name: Elise Rathborne

Title: Authorized Representative

Date: June 6, 2024

EXHIBIT A

DESCRIPTION OF THE MEMBERSHIP INTERESTS

The Membership Interests assigned, transferred, conveyed, and delivered pursuant to the Assignment and Assumption of Membership Interests to which this Exhibit A is attached consist of the following:

Entity: GMP Fairfield II LLC

Type of Entity: Delaware limited liability company

State of Formation: Delaware

Employer Identification Number: 84-2310578

Membership Interests Transferred: One hundred percent (100%) of the issued and outstanding membership interests in the Company, representing all of the economic interests, voting interests, management rights, and other rights and interests of a member of the Company under the Delaware Limited Liability Company Act and the operating agreement of the Company (as amended and restated as of the Closing Date).

Sole Asset of the Company: The Company's sole asset is the real property and improvements known as Fairfield Logistics Center II, located at 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213 (Fulton County, Georgia), consisting of a logistics facility comprising approximately 387,000 rentable square feet, which facility was constructed and placed in service in 2020, together with all related personal property, fixtures, equipment, and intangible assets owned by the Company.

Existing Indebtedness: The Property is encumbered by Loan 1-B under the Master Loan Agreement dated as of September 15, 2020, by and among certain Target Entities (as borrowers) and Pinnacle Federal Bank, N.A. (as lender). Key terms of the indebtedness are as follows:

The Membership Interests are being transferred free and clear of all liens, pledges, security interests, encumbrances, claims, options, rights of first refusal, preemptive rights, and adverse claims of any kind or nature whatsoever, other than restrictions arising under applicable federal and state securities laws and any encumbrances expressly permitted under the PSA.

EXHIBIT B

LEGAL DESCRIPTION OF THE PROPERTY

The real property owned by GMP Fairfield II LLC (the "Company") and commonly known as Fairfield Logistics Center II, located at 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213, is more particularly described as follows:

County: Fulton County, Georgia

Property Address: 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213

Legal Description:

ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 173 of the 5th District, Fulton County, Georgia, and being more particularly described as follows:

BEGINNING at a 1/2-inch rebar set at the intersection of the southerly right-of-way line of Fairfield Industrial Boulevard (80-foot right-of-way) and the westerly right-of-way line of Logistics Drive (60-foot right-of-way); THENCE running along said southerly right-of-way line of Fairfield Industrial Boulevard, South 89 degrees 47 minutes 22 seconds West, a distance of 1,247.63 feet to a 1/2-inch rebar set; THENCE departing said right-of-way line, South 00 degrees 12 minutes 38 seconds East, a distance of 1,683.41 feet to a 1/2-inch rebar set on the northerly line of lands now or formerly of Fulton County Industrial Development Authority; THENCE along said northerly line, North 89 degrees 52 minutes 17 seconds East, a distance of 1,248.02 feet to a 1/2-inch rebar set on the westerly right-of-way line of Logistics Drive; THENCE along said westerly right-of-way line, North 00 degrees 07 minutes 43 seconds West, a distance of 1,683.27 feet to the POINT OF BEGINNING.

SAID TRACT OR PARCEL containing 48.22 acres, more or less, as shown on that certain ALTA/NSPS Land Title Survey prepared by Meridian Land Surveying, Inc., dated August 12, 2020, last revised January 15, 2024, bearing Job Number MLS-2020-4173, and recorded in Plat Book 387, Page 42, Fulton County, Georgia records.

TOGETHER WITH all buildings, structures, and improvements now or hereafter located thereon, including the logistics warehouse facility comprising approximately 387,000 rentable square feet, and all fixtures, equipment, and appurtenances thereto.

SUBJECT TO all easements, restrictions, covenants, conditions, rights-of-way, and other matters of record, including those set forth on Exhibit P to the PSA (Permitted Exceptions).

This legal description is consistent with and cross-references the legal description set forth on Exhibit A (Legal Descriptions) to the Purchase and Sale Agreement dated as of February 28, 2024, as amended.

[End of Assignment and Assumption of Membership Interests — GMP Fairfield II LLC]

Term	Detail
Lender	Pinnacle Federal Bank, N.A.
Loan Designation	Loan 1-B under the Master Loan Agreement
Master Loan Agreement Date	September 15, 2020
Aggregate Outstanding Principal Balance (all Pinnacle loans)	$421,600,000
Fixed Interest Rate	4.22% per annum
Maturity Date	July 1, 2028
Amortization	30-year amortization schedule
Assumption	Being assumed by Assignee pursuant to the Assumption Agreement of even date herewith

ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS
GMP Fairfield II LLC
Dated as of June 6, 2024
Reference is made to the Purchase and Sale Agreement dated as of February 28, 2024, as amended by the First Amendment to Purchase and Sale Agreement dated as of April 12, 2024, and the Second Amendment to Purchase and Sale Agreement dated as of May 28, 2024 (collectively, as so amended, the "PSA"), by and between Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership, and Fairwater Real Estate Investment Trust, a Maryland real estate investment trust.
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS
GMP FAIRFIELD II LLC
This Assignment and Assumption of Membership Interests (this "Assignment") is entered into as of June 6, 2024 (the "Closing Date"), by and between:
ASSIGNOR:
Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership ("Assignor" or "Seller"), acting by and through its general partner, Greystone Meridian Capital LLC, a Delaware limited liability company, having its principal office at 3300 Peachtree Road NE, Suite 2200, Atlanta, Georgia 30326, with a registered agent address of 1209 Orange Street, Wilmington, Delaware 19801 (Employer Identification Number: 83-1647205);
and
ASSIGNEE:
Fairwater Real Estate Investment Trust, a Maryland real estate investment trust ("Assignee" or "Buyer"), having its principal office at 7200 Chesapeake Parkway, Suite 1100, Columbia, Maryland 21044 (Employer Identification Number: 52-2198437; NYSE ticker symbol: FREIT).
Assignor and Assignee are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
THE COMPANY:
GMP Fairfield II LLC, a Delaware limited liability company (the "Company"), formed under the laws of the State of Delaware (Employer Identification Number: 84-2310578). The Company is a single-purpose entity that owns the real property known as Fairfield Logistics Center II, located at 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213 (as more particularly described herein and on Exhibit B attached hereto, the "Property").
RECITALS
WHEREAS, the Company is a Delaware limited liability company and a single-purpose entity formed for the purpose of owning and operating the real property known as Fairfield Logistics Center II, a logistics facility comprising approximately 387,000 rentable square feet, located at 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213 (the "Property"), which facility was constructed and placed in service in 2020;
WHEREAS, Assignor is the sole member of the Company and owns one hundred percent (100%) of the issued and outstanding membership interests in the Company (the "Membership Interests"), and no other person or entity holds any membership interest, economic interest, or other equity interest in the Company;
WHEREAS, Assignor and Assignee entered into that certain Purchase and Sale Agreement, dated as of February 28, 2024 (as amended by the First Amendment to Purchase and Sale Agreement dated as of April 12, 2024, and the Second Amendment to Purchase and Sale Agreement dated as of May 28, 2024, collectively, the "PSA"), pursuant to which Assignor agreed to sell, and Assignee agreed to purchase, among other interests, one hundred percent (100%) of the Membership Interests in the Company, as part of a portfolio transaction involving fourteen (14) property-owning single-purpose Delaware limited liability companies (each, a "Target Entity"), for an aggregate purchase price of One Billion One Hundred Million Dollars ($1,100,000,000) (subject to adjustment as provided in the PSA);
WHEREAS, the PSA is governed by the laws of the State of New York, without regard to conflict of laws principles that would require the application of the laws of any other jurisdiction;
WHEREAS, the transfer of the Membership Interests constitutes a change of control under each existing mortgage loan agreement securing the properties held by the Target Entities, and all required lender consents have been obtained, including the consent of Pinnacle Federal Bank, N.A. (received on June 4, 2024), with respect to the loan secured by the Property, designated as Loan 1-B under the Master Loan Agreement dated as of September 15, 2020, between certain of the Target Entities (as borrowers) and Pinnacle Federal Bank, N.A. (as lender) (the "Master Loan Agreement");
WHEREAS, the Property is encumbered by Loan 1-B under the Master Loan Agreement, which indebtedness is being assumed by Assignee pursuant to the terms of the PSA and a separate Assumption Agreement of even date herewith (the "Assumption Agreement"), and the existing mortgage, deed of trust, security agreement, and related loan documents securing Loan 1-B shall remain in full force and effect following the consummation of the transactions contemplated hereby;
WHEREAS, all conditions precedent to the closing of the transaction contemplated by the PSA, including all conditions set forth in Article VIII thereof, have been satisfied or duly waived in writing by the applicable Party as of the Closing Date;
WHEREAS, Assignor desires to assign, transfer, convey, and deliver to Assignee, and Assignee desires to accept and assume from Assignor, all of Assignor's right, title, and interest in and to the Membership Interests, upon the terms and subject to the conditions set forth herein and in the PSA; and
WHEREAS, the execution and delivery of this Assignment is a condition to the closing of the transactions contemplated by the PSA and is being delivered simultaneously with the other closing deliverables specified therein.
NOW, THEREFORE, for and in consideration of the mutual covenants, agreements, representations, and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms
Capitalized terms used but not otherwise defined in this Assignment shall have the respective meanings ascribed to them in the PSA. In the event of any inconsistency between a definition set forth in this Assignment and the corresponding definition in the PSA, the definition in the PSA shall control, except to the extent that this Assignment expressly provides otherwise. The following terms shall have the meanings set forth below when used in this Assignment:
"A&R Operating Agreement" has the meaning set forth in Section 5.2 of this Assignment.
"Assignment" means this Assignment and Assumption of Membership Interests, including all exhibits and schedules attached hereto, as the same may be amended, modified, or supplemented from time to time in accordance with the terms hereof.
"Assumption Agreement" means that certain Assumption Agreement, dated as of the Closing Date, by and among Assignor, Assignee, and Pinnacle Federal Bank, N.A., pursuant to which Assignee assumes the obligations of the borrowers under the Master Loan Agreement with respect to Loan 1-B.
"Closing Date" means June 6, 2024.
"Company" means GMP Fairfield II LLC, a Delaware limited liability company, having Employer Identification Number 84-2310578, formed under the laws of the State of Delaware.
"Master Loan Agreement" means that certain Master Loan Agreement, dated as of September 15, 2020, by and among certain of the Target Entities (as borrowers) and Pinnacle Federal Bank, N.A. (as lender), as amended, restated, supplemented, or otherwise modified from time to time prior to the date hereof.
"Membership Interests" means one hundred percent (100%) of the issued and outstanding membership interests in the Company, as more particularly described on Exhibit A attached hereto, representing all of the economic and voting interests in the Company.
"Permitted Exceptions" means those liens, encumbrances, easements, restrictions, covenants, conditions, and other matters affecting title to the Property that are set forth on Exhibit P to the PSA and are permitted to remain as encumbrances on the Property following the Closing Date, as well as any restrictions arising under applicable federal and state securities laws.
"Property" means the real property and improvements known as Fairfield Logistics Center II, located at 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213, comprising a logistics facility of approximately 387,000 rentable square feet, as more particularly described on Exhibit B attached hereto, together with all rights, privileges, and appurtenances pertaining thereto.
"PSA" means the Purchase and Sale Agreement, dated as of February 28, 2024, by and between Assignor and Assignee, as amended by the First Amendment to Purchase and Sale Agreement dated as of April 12, 2024, and the Second Amendment to Purchase and Sale Agreement dated as of May 28, 2024, and as the same may be further amended, modified, or supplemented from time to time in accordance with the terms thereof.
ARTICLE II — ASSIGNMENT AND ASSUMPTION
Section 2.1 — Assignment of Membership Interests
Effective as of the Closing Date, Assignor hereby irrevocably assigns, transfers, conveys, sets over, and delivers to Assignee all of Assignor's right, title, and interest in and to the Membership Interests, constituting one hundred percent (100%) of the issued and outstanding membership interests in the Company, free and clear of all liens, claims, encumbrances, pledges, security interests, charges, options, rights of first refusal, preemptive rights, and adverse claims of any kind or nature whatsoever, other than (a) restrictions arising under applicable federal and state securities laws, (b) any encumbrances expressly permitted under the PSA, and (c) the Permitted Exceptions. The Membership Interests being transferred pursuant to this Section 2.1 are more particularly described on Exhibit A attached hereto and incorporated herein by reference.
The Membership Interests are being transferred as part of the transactions contemplated by the PSA, and this Assignment is being delivered in partial fulfillment of Assignor's obligations under the PSA with respect to the closing of such transactions. The transfer of the Membership Interests hereunder shall be deemed to have occurred simultaneously with the transfer of the membership interests in each of the other Target Entities pursuant to the separate assignment and assumption agreements being executed and delivered concurrently herewith.
Section 2.2 — Acceptance and Assumption by Assignee
Effective as of the Closing Date, Assignee hereby accepts the assignment of the Membership Interests described in Section 2.1 above and assumes and agrees to observe, perform, and discharge, in accordance with their respective terms, all of the duties, obligations, covenants, and liabilities of the sole member of the Company arising from and after the Closing Date, including, without limitation, the following:
(a) All obligations of the sole member under the Company's operating agreement, as such operating agreement is being amended and restated as of the Closing Date in the form of the A&R Operating Agreement described in Section 5.2 hereof;
(b) All obligations under the leases, license agreements, service contracts, maintenance agreements, and other agreements to which the Company is a party or by which the Company or the Property is bound, to the extent such obligations accrue or relate to the period from and after the Closing Date, subject to the proration provisions of the PSA;
(c) All obligations with respect to tenant security deposits held by the Company, representing the Company's proportionate share of the aggregate Four Million Two Hundred Eighty-Three Thousand Dollars ($4,283,000) in tenant security deposits across the portfolio, which security deposits are held in accounts at Magnolia Commerce Bank, N.A., and which Assignee acknowledges will be transferred or credited to Assignee at closing in accordance with the terms of the PSA;
(d) All obligations under the mortgage loan documents relating to Loan 1-B under the Master Loan Agreement dated September 15, 2020, with Pinnacle Federal Bank, N.A., as such obligations are assumed by Assignee pursuant to the Assumption Agreement, including all payment obligations, reserve deposit obligations, reporting obligations, and compliance covenants arising from and after the Closing Date; and
(e) All other obligations and liabilities of the sole member of the Company arising from and after the Closing Date, whether known or unknown, fixed or contingent, accrued or unaccrued, to the extent arising out of or relating to the ownership, operation, maintenance, management, or condition of the Property from and after the Closing Date.
By accepting the Membership Interests and assuming the obligations set forth in this Section 2.2, Assignee acknowledges that it is becoming the sole member and manager of the Company and will be responsible for all governance, management, and operational matters relating to the Company from and after the Closing Date.
Section 2.3 — Excluded Liabilities
Notwithstanding anything to the contrary in Section 2.2 above, Assignee does not assume and shall not be responsible or liable for any obligations, liabilities, claims, demands, actions, losses, costs, or expenses of Assignor or the Company (collectively, "Excluded Liabilities") that accrued or arose prior to the Closing Date, except (a) as expressly provided in the PSA, including, without limitation, any obligations that are subject to the proration and working-capital true-up mechanism set forth in Exhibit U to the PSA, and (b) any ongoing obligations under the mortgage loan documents (to the extent relating to principal indebtedness originally incurred prior to the Closing Date that is being assumed by Assignee pursuant to the Assumption Agreement). For the avoidance of doubt, Excluded Liabilities shall include, without limitation, (i) any pre-closing tax liabilities of Assignor or the Company (except to the extent prorated in accordance with the PSA), (ii) any pre-closing litigation or claims relating to the Property or the Company, (iii) any obligations arising from Assignor's breach of any representation, warranty, or covenant prior to the Closing Date, and (iv) any liability for environmental matters to the extent arising from conditions existing prior to the Closing Date, subject in each case to the terms and limitations of the PSA.
ARTICLE III — REPRESENTATIONS AND WARRANTIES OF ASSIGNOR
Assignor hereby represents and warrants to Assignee as of the Closing Date as follows:
Section 3.1 — Authority and Due Execution
Assignor, Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership, acting by and through its general partner, Greystone Meridian Capital LLC, a Delaware limited liability company, has full power, authority, and legal right to execute, deliver, and perform its obligations under this Assignment and to consummate the transactions contemplated hereby. Victor Lansdell and Elise Rathborne, as Co-Founders and Managing Partners of Greystone Meridian Capital LLC, have been duly authorized to execute this Assignment on behalf of Assignor pursuant to the organizational documents of Greystone Meridian Capital LLC and the limited partnership agreement of Assignor. The execution, delivery, and performance of this Assignment by Assignor have been duly authorized by all necessary partnership action on the part of Assignor and all necessary limited liability company action on the part of Greystone Meridian Capital LLC, and no further approval, consent, authorization, or other action by any partner, member, manager, or other person is required in connection therewith. This Assignment has been duly and validly executed and delivered by Assignor and constitutes the legal, valid, and binding obligation of Assignor, enforceable against Assignor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.
Section 3.2 — Ownership of Membership Interests
Assignor is the sole member of the Company and holds one hundred percent (100%) of the issued and outstanding Membership Interests in the Company. No other person or entity owns or holds any membership interest, economic interest, profits interest, or other equity interest or right to acquire any such interest in the Company. The Membership Interests are free and clear of all liens, pledges, security interests, encumbrances, claims, options, rights of first refusal, preemptive rights, transfer restrictions, and adverse claims of any kind or nature whatsoever, other than (a) restrictions arising under applicable federal and state securities laws, and (b) encumbrances that have been discharged or released as of or prior to the Closing Date, including, without limitation, any Uniform Commercial Code financing statements (UCC-1) filed against the Membership Interests, which are being terminated as of the Closing Date by the filing of appropriate UCC-3 termination statements with the Delaware Secretary of State. The Membership Interests have been duly authorized and validly issued in accordance with the Delaware Limited Liability Company Act and the operating agreement of the Company. There are no outstanding options, warrants, rights, agreements, commitments, or other arrangements obligating Assignor or the Company to issue, sell, transfer, or otherwise dispose of any membership interests or other equity interests in the Company.
Section 3.3 — No Conflict
The execution, delivery, and performance of this Assignment by Assignor, and the consummation of the transactions contemplated hereby, do not and will not (a) conflict with, violate, or result in any breach of the certificate of limited partnership, limited partnership agreement, or any other organizational document of Assignor, or the certificate of formation, operating agreement, or any other organizational document of the Company; (b) conflict with, violate, result in a breach or default under, or give rise to any right of termination, cancellation, acceleration, or other right under any contract, agreement, instrument, permit, license, or other arrangement to which Assignor or the Company is a party or by which Assignor, the Company, the Membership Interests, or the Property is bound or affected; or (c) violate any applicable law, statute, regulation, ordinance, rule, order, judgment, injunction, decree, or governmental requirement applicable to Assignor, the Company, the Membership Interests, or the Property, including, without limitation, any applicable securities laws.
Section 3.4 — Consents
All consents, approvals, authorizations, orders, filings, registrations, and qualifications of or with any governmental authority or any other person that are required for the valid execution, delivery, and performance of this Assignment by Assignor and the valid transfer of the Membership Interests to Assignee have been duly obtained or made and are in full force and effect. Without limiting the generality of the foregoing, Assignor has obtained the consent of Pinnacle Federal Bank, N.A. (such consent having been received on June 4, 2024, and documented by an executed lender consent letter of even date therewith) with respect to the change of control of the Company resulting from the transfer of the Membership Interests, as required under the Master Loan Agreement dated September 15, 2020, and the related loan documents. No additional consent, approval, or authorization is required under the organizational documents of Assignor or the Company, or under any other agreement to which Assignor or the Company is a party, in connection with the consummation of the transactions contemplated by this Assignment.
Section 3.5 — PSA Representations
The representations and warranties set forth in this Article III are in addition to, and not in limitation or derogation of, the representations and warranties of Assignor contained in the PSA (including, without limitation, the representations and warranties set forth in Article V thereof), all of which are hereby incorporated herein by reference as if fully set forth herein. The bring-down of such representations and warranties as of the Closing Date is set forth in the Seller's Closing Certificate executed and delivered by Assignor concurrently herewith in accordance with Section 8.1(e) of the PSA. In the event of any conflict between the representations and warranties contained in this Article III and the representations and warranties contained in the PSA, the representations and warranties contained in the PSA shall control.
ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF ASSIGNEE
Assignee hereby represents and warrants to Assignor as of the Closing Date as follows:
Section 4.1 — Authority and Due Execution
Assignee, Fairwater Real Estate Investment Trust, a Maryland real estate investment trust, has full power, authority, and legal right to execute, deliver, and perform its obligations under this Assignment and to consummate the transactions contemplated hereby, including the acceptance of the Membership Interests and the assumption of the obligations set forth in Section 2.2. This Assignment has been duly authorized by all necessary trust and corporate action on the part of Assignee, including, without limitation, the adoption of resolutions by the Board of Trustees of Fairwater Real Estate Investment Trust authorizing the execution, delivery, and performance of this Assignment and the consummation of the transactions contemplated hereby and by the PSA. This Assignment has been duly and validly executed and delivered by Assignee and constitutes the legal, valid, and binding obligation of Assignee, enforceable against Assignee in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.
Section 4.2 — Solvency
Assignee is solvent and will not be rendered insolvent by the consummation of the transactions contemplated by this Assignment, the PSA, or any of the other agreements and instruments delivered in connection herewith. Assignee is not entering into this Assignment or any of the transactions contemplated hereby with the actual intent to hinder, delay, or defraud any present or future creditor of Assignee. As of the Closing Date and after giving effect to the transactions contemplated by this Assignment and the PSA, (a) the fair value of Assignee's assets will exceed the sum of its liabilities, (b) the present fair salable value of Assignee's assets will exceed its probable liability on its existing debts as they become absolute and matured, and (c) Assignee will be able to pay its debts and other liabilities as they mature in the normal course of business.
Section 4.3 — PSA Representations
The representations and warranties of Assignee contained in the PSA (including, without limitation, the representations and warranties set forth in Article VI thereof) are hereby incorporated herein by reference as if fully set forth herein. The bring-down of such representations and warranties as of the Closing Date is set forth in the Buyer's Closing Certificate executed and delivered by Assignee concurrently herewith in accordance with Section 8.2(d) of the PSA. In the event of any conflict between the representations and warranties contained in this Article IV and the representations and warranties contained in the PSA, the representations and warranties contained in the PSA shall control.
ARTICLE V — ADDITIONAL COVENANTS AND AGREEMENTS
Section 5.1 — Further Assurances
Each Party hereby covenants and agrees that, from time to time after the Closing Date, at the request of the other Party and without further consideration, it shall execute and deliver, or cause to be executed and delivered, such additional instruments, documents, certificates, and agreements, and take or cause to be taken such additional actions, as the requesting Party may reasonably request in order to more effectively assign, transfer, and convey the Membership Interests to Assignee, to confirm Assignee's status as the sole member and manager of the Company, and to otherwise effectuate the purposes and intent of this Assignment. Without limiting the generality of the foregoing, the Parties shall cooperate in connection with (a) the filing of an updated Certificate of Amendment or other appropriate filing with the Delaware Secretary of State to reflect the change in the sole member of the Company, (b) any required foreign qualification updates or amendments with the Georgia Secretary of State or the Fulton County Clerk of Superior Court, (c) the filing of UCC-3 termination statements with respect to any UCC-1 financing statements previously filed against the Membership Interests, and (d) any other filings or registrations with governmental authorities that may be necessary or desirable in connection with the consummation of the transactions contemplated hereby.
Section 5.2 — Amended and Restated Operating Agreement
The Parties acknowledge and agree that, concurrently with the execution and delivery of this Assignment, the existing operating agreement of the Company is being amended and restated in its entirety by the execution and delivery of that certain Amended and Restated Operating Agreement of GMP Fairfield II LLC (the "A&R Operating Agreement"), in the form attached to the PSA as Exhibit M, to reflect Assignee as the sole member and manager of the Company and to set forth the governance and operational provisions applicable to the Company from and after the Closing Date. The A&R Operating Agreement shall be effective as of the Closing Date, simultaneously with the effectiveness of the assignment of the Membership Interests pursuant to Section 2.1 hereof.
Section 5.3 — Post-Closing Obligations
Assignee acknowledges and agrees that it is bound by and shall comply with the post-closing obligations set forth in the PSA, including, without limitation, the following:
(a) Proration True-Up. The ninety (90)-day post-closing proration true-up contemplated by Section 10.2 of the PSA, pursuant to which the Parties shall reconcile the prorations of revenues, expenses, taxes, and other amounts with respect to the Property and the other properties included in the portfolio transaction, with a deadline for completion of such true-up of September 4, 2024;
(b) SNDA Delivery. The delivery of remaining subordination, non-disturbance, and attornment agreements ("SNDAs") within thirty (30) days following the Closing Date, as required by Section 7.4(c) of the PSA, with respect to certain tenants of the Property and the other properties included in the portfolio transaction for which SNDAs were not obtained prior to closing;
(c) Property Management Transition. The transition of property management services with respect to the Property from Argyle Property Services LLC, the current property manager, to Fairwater Property Management LLC, an affiliate of Assignee, pursuant to the terms of that certain Transition Services Agreement dated as of June 6, 2024 (the "Transition Services Agreement"), by and between Argyle Property Services LLC and Fairwater Property Management LLC, which provides for an orderly transition period of up to sixty (60) days following the Closing Date; and
(d) Other Post-Closing Matters. Such other post-closing obligations and deliverables as may be specified in the PSA or in any of the other agreements and instruments delivered in connection with the closing of the transactions contemplated thereby.
Section 5.4 — Tax Matters
Assignor and Assignee acknowledge and agree that the purchase price for the Membership Interests has been allocated among the assets of the Company in accordance with the Purchase Price Allocation Schedule set forth on Exhibit K to the PSA, which allocation was prepared in accordance with Section 1060 of the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury Regulations promulgated thereunder. The allocation of the purchase price attributable to the Company as set forth on Exhibit K to the PSA shall be used by both Parties, and their respective affiliates, for all federal, state, and local tax reporting purposes, including, without limitation, with respect to the preparation and filing of IRS Form 8594 (Asset Acquisition Statement Under Section 1060) and any applicable Georgia transfer tax declarations or similar filings.
Assignor and Assignee shall cooperate in good faith with respect to any tax filings related to the transfer of the Membership Interests, including the timely preparation and filing of IRS Form 8594, any required state or local tax returns, and any other tax-related filings or reports. Neither Party shall take any tax reporting position that is inconsistent with the purchase price allocation set forth on Exhibit K to the PSA without the prior written consent of the other Party, except as may be required by a final determination (within the meaning of Section 1313 of the Code) by the Internal Revenue Service or other applicable taxing authority. The obligations of the Parties under this Section 5.4 shall survive the Closing Date.
ARTICLE VI — INDEMNIFICATION
Section 6.1 — Survival and Indemnification
The Parties' respective indemnification rights and obligations with respect to the representations, warranties, covenants, and agreements contained in the PSA and this Assignment shall be governed by, and subject to, the indemnification provisions set forth in Article XI of the PSA, which provisions are hereby incorporated herein by reference as if fully set forth herein. Without limiting the generality of the foregoing, the following terms and limitations, as set forth in the PSA, shall apply to any indemnification claims arising under or in connection with this Assignment:
(a) General Representation Survival Period. The representations and warranties of the Parties contained in the PSA and this Assignment (other than Fundamental Representations and Tax Representations, as defined in the PSA) shall survive the Closing Date for a period of eighteen (18) months, expiring on December 6, 2025;
(b) Tax Representation Survival Period. The Tax Representations (as defined in the PSA) shall survive the Closing Date for a period of thirty-six (36) months, expiring on June 6, 2027;
(c) General Representation Cap. The aggregate liability of any indemnifying Party for indemnification claims based on breaches of general representations and warranties (other than Fundamental Representations and Tax Representations) shall not exceed Fifty-Five Million Dollars ($55,000,000), representing five percent (5%) of the aggregate purchase price under the PSA;
(d) Fundamental Representation Cap. The aggregate liability of any indemnifying Party for indemnification claims based on breaches of Fundamental Representations (as defined in the PSA) shall not exceed One Hundred Ten Million Dollars ($110,000,000), representing ten percent (10%) of the aggregate purchase price under the PSA;
(e) Basket (Tipping). No indemnifying Party shall be liable for indemnification claims based on breaches of general representations and warranties until the aggregate amount of all such claims exceeds Five Million Five Hundred Thousand Dollars ($5,500,000) (the "Basket"), representing one-half of one percent (0.5%) of the aggregate purchase price under the PSA, at which point the indemnifying Party shall be liable for the full amount of all such claims from the first dollar (i.e., the Basket is a tipping basket and not a true deductible);
(f) De Minimis Threshold. No individual claim for indemnification based on a breach of a general representation or warranty shall be counted toward the Basket or be otherwise indemnifiable unless the amount of such individual claim exceeds Two Hundred Seventy-Five Thousand Dollars ($275,000) (the "De Minimis Threshold"); and
(g) Seller Indemnity Escrow. An amount equal to Sixteen Million Five Hundred Thousand Dollars ($16,500,000) of the aggregate purchase price has been deposited into an escrow account held by Commonwealth National Title Insurance Company, as escrow agent, pursuant to the Indemnity Escrow Agreement of even date herewith, as security for Assignor's indemnification obligations under the PSA and this Assignment.
In addition to the indemnification obligations of the Parties set forth in the PSA and the Seller Indemnity Escrow described above, the Parties acknowledge that a representations and warranties insurance policy (the "R&W Insurance Policy") has been issued by Sentinel Specialty Insurance Company in connection with the transactions contemplated by the PSA, with a policy limit of Fifty-Five Million Dollars ($55,000,000) and a retention of Eleven Million Dollars ($11,000,000). The R&W Insurance Policy provides additional coverage to Assignee for losses arising from breaches of the representations and warranties of Assignor contained in the PSA, subject to the terms, conditions, exclusions, and limitations set forth in the R&W Insurance Policy. Nothing in this Section 6.1 shall be deemed to limit or modify the terms of the R&W Insurance Policy.
ARTICLE VII — MISCELLANEOUS
Section 7.1 — Governing Law
This Assignment shall be governed by and construed in accordance with the laws of the State of New York, consistent with the governing law provision of the PSA, without regard to conflict of laws principles that would require the application of the laws of any other jurisdiction; provided, however, that (a) matters relating to the internal affairs of the Company, including, without limitation, the formation, governance, operation, rights and obligations of members, and dissolution of the Company, as a Delaware limited liability company, shall be governed by the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.), and (b) matters relating to the ownership, use, transfer, encumbrance, and taxation of the Property, and matters relating to real property law generally, shall be governed by the laws of the State of Georgia.
Section 7.2 — Entire Agreement
This Assignment, together with the PSA (as amended), the A&R Operating Agreement, the Assumption Agreement, and all other agreements, instruments, certificates, and documents executed and delivered in connection with the closing of the transactions contemplated by the PSA, constitute the entire agreement of the Parties with respect to the subject matter hereof and supersede all prior agreements, understandings, negotiations, discussions, representations, and warranties, whether written or oral, express or implied, with respect to the assignment and assumption of the Membership Interests. No representation, warranty, promise, inducement, or statement of intention has been made by either Party that is not embodied in this Assignment, the PSA, or the other transaction documents, and no Party shall be bound by or liable for any alleged representation, warranty, promise, inducement, or statement of intention not so set forth.
Section 7.3 — Binding Effect
This Assignment shall be binding upon and shall inure to the benefit of the Parties and their respective successors, assigns, heirs, executors, administrators, and legal representatives. Neither Party may assign this Assignment or any of its rights or obligations hereunder without the prior written consent of the other Party, except as expressly permitted by the PSA.
Section 7.4 — Counterparts
This Assignment may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. The exchange of copies of this Assignment and of signature pages by electronic transmission (including by portable document format (.pdf), Brightwater Software, or other electronic signature platform) shall constitute effective execution and delivery of this Assignment as to the Parties and may be used in lieu of an original Assignment for all purposes. Signatures transmitted by electronic means shall be deemed original signatures for all purposes.
Section 7.5 — Waiver and Amendment
No provision of this Assignment may be waived, modified, supplemented, or amended except by a written instrument duly executed by the Party against whom enforcement of such waiver, modification, supplement, or amendment is sought. No waiver by any Party of any breach or default hereunder shall be deemed a waiver of any preceding or subsequent breach or default, whether of the same or similar nature. No exercise or failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Assignment shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Section 7.6 — Severability
If any term, provision, covenant, or restriction of this Assignment is held by a court of competent jurisdiction or other governmental authority to be invalid, void, unenforceable, or against public policy, the remaining terms, provisions, covenants, and restrictions of this Assignment shall remain in full force and effect and shall in no way be affected, impaired, or invalidated, so long as the economic and legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to either Party. Upon such a determination of invalidity, the Parties shall negotiate in good faith to modify this Assignment so as to give effect to the original intent of the Parties to the fullest extent permitted by applicable law.
Section 7.7 — Notices
All notices, requests, demands, consents, waivers, and other communications required or permitted to be given under this Assignment shall be in writing and shall be given in accordance with the notice provisions set forth in Section 13.1 of the PSA, which are hereby incorporated herein by reference. For the avoidance of doubt, the notice addresses of the Parties are as follows:
If to Assignor:
Greystone Meridian Partners Fund III, L.P. c/o Greystone Meridian Capital LLC 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326
Attention: Victor Lansdell, Co-Founder & Managing Partner
Email: vlansdell@greystonemeridian.com
with a copy (which shall not constitute notice) to:
Blackridge Hayes LLP 1285 Avenue of the Americas, 34th Floor New York, New York 10019
Attention: Nathaniel Pryce
Email: npryce@blackridgehayes.com
If to Assignee:
Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
Attention: David Elgin Park, General Counsel
Email: dpark@fairwaterreit.com
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 450 Park Avenue, 28th Floor New York, New York 10022
Attention: Douglas Fairchild
Email: dfairchild@calderwoodharkness.com
Section 7.8 — Headings
The section headings and article headings contained in this Assignment are inserted for convenience of reference only and shall not affect, and shall not be considered in, the meaning, interpretation, or construction of any provision of this Assignment.
Section 7.9 — Third-Party Beneficiaries
Except as expressly provided in this Section 7.9, this Assignment is not intended to, and shall not, confer upon any person other than the Parties hereto and their respective permitted successors and assigns any legal or equitable rights, remedies, obligations, or liabilities, including any right to enforce any provision of this Assignment; provided, however, that Pinnacle Federal Bank, N.A., as lender under the Master Loan Agreement and the loan documents securing Loan 1-B, shall be an express third-party beneficiary of Assignee's assumption obligations set forth in Section 2.2(d) hereof, and Pinnacle Federal Bank, N.A. shall have the right to enforce such assumption obligations directly against Assignee to the extent permitted by applicable law and the terms of the Assumption Agreement.
Section 7.10 — Construction
In the event of any conflict or inconsistency between the terms and provisions of this Assignment and the terms and provisions of the PSA, the terms and provisions of the PSA shall prevail and control. The Parties acknowledge that each Party and its counsel have reviewed and revised this Assignment and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Assignment or any amendment or exhibit hereto. As used in this Assignment, the words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation," and the word "or" shall not be exclusive.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the Parties have executed this Assignment and Assumption of Membership Interests as of the date first written above.
ASSIGNOR:
GREYSTONE MERIDIAN PARTNERS FUND III, L.P., a Delaware limited partnership
By: Greystone Meridian Capital LLC,
a Delaware limited liability company, its General Partner
By: ________
Name: Victor Lansdell
Title: Co-Founder & Managing Partner
Date: June 6, 2024
ASSIGNEE:
FAIRWATER REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust
By: ________
Name: Marcus Devereaux
Title: Executive Vice President, Acquisitions
Date: June 6, 2024
ACKNOWLEDGMENT AND CONSENT OF THE COMPANY
The undersigned, GMP Fairfield II LLC, a Delaware limited liability company (the "Company"), by its duly authorized representative, hereby (a) acknowledges receipt of a copy of the foregoing Assignment and Assumption of Membership Interests (the "Assignment"), (b) consents to the assignment and assumption of the Membership Interests set forth therein, (c) confirms that, as of the Closing Date, the Assignee is the sole member and manager of the Company, and (d) agrees to update its books and records to reflect the foregoing. This acknowledgment and consent is being executed by the authorized representative of the Company prior to the effectiveness of the assignment of the Membership Interests as contemplated by the Assignment, and such authorized representative has been duly authorized by Assignor, as the current sole member of the Company, to execute this acknowledgment and consent on behalf of the Company.
GMP FAIRFIELD II LLC, a Delaware limited liability company
By: ________
Name: Elise Rathborne
Title: Authorized Representative
Date: June 6, 2024
EXHIBIT A
DESCRIPTION OF THE MEMBERSHIP INTERESTS
The Membership Interests assigned, transferred, conveyed, and delivered pursuant to the Assignment and Assumption of Membership Interests to which this Exhibit A is attached consist of the following:
Entity: GMP Fairfield II LLC
Type of Entity: Delaware limited liability company
State of Formation: Delaware
Employer Identification Number: 84-2310578
Membership Interests Transferred: One hundred percent (100%) of the issued and outstanding membership interests in the Company, representing all of the economic interests, voting interests, management rights, and other rights and interests of a member of the Company under the Delaware Limited Liability Company Act and the operating agreement of the Company (as amended and restated as of the Closing Date).
Sole Asset of the Company: The Company's sole asset is the real property and improvements known as Fairfield Logistics Center II, located at 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213 (Fulton County, Georgia), consisting of a logistics facility comprising approximately 387,000 rentable square feet, which facility was constructed and placed in service in 2020, together with all related personal property, fixtures, equipment, and intangible assets owned by the Company.
Existing Indebtedness: The Property is encumbered by Loan 1-B under the Master Loan Agreement dated as of September 15, 2020, by and among certain Target Entities (as borrowers) and Pinnacle Federal Bank, N.A. (as lender). Key terms of the indebtedness are as follows:
The Membership Interests are being transferred free and clear of all liens, pledges, security interests, encumbrances, claims, options, rights of first refusal, preemptive rights, and adverse claims of any kind or nature whatsoever, other than restrictions arising under applicable federal and state securities laws and any encumbrances expressly permitted under the PSA.
EXHIBIT B
LEGAL DESCRIPTION OF THE PROPERTY
The real property owned by GMP Fairfield II LLC (the "Company") and commonly known as Fairfield Logistics Center II, located at 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213, is more particularly described as follows:
County: Fulton County, Georgia
Property Address: 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213
Legal Description:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 173 of the 5th District, Fulton County, Georgia, and being more particularly described as follows:
BEGINNING at a 1/2-inch rebar set at the intersection of the southerly right-of-way line of Fairfield Industrial Boulevard (80-foot right-of-way) and the westerly right-of-way line of Logistics Drive (60-foot right-of-way); THENCE running along said southerly right-of-way line of Fairfield Industrial Boulevard, South 89 degrees 47 minutes 22 seconds West, a distance of 1,247.63 feet to a 1/2-inch rebar set; THENCE departing said right-of-way line, South 00 degrees 12 minutes 38 seconds East, a distance of 1,683.41 feet to a 1/2-inch rebar set on the northerly line of lands now or formerly of Fulton County Industrial Development Authority; THENCE along said northerly line, North 89 degrees 52 minutes 17 seconds East, a distance of 1,248.02 feet to a 1/2-inch rebar set on the westerly right-of-way line of Logistics Drive; THENCE along said westerly right-of-way line, North 00 degrees 07 minutes 43 seconds West, a distance of 1,683.27 feet to the POINT OF BEGINNING.
SAID TRACT OR PARCEL containing 48.22 acres, more or less, as shown on that certain ALTA/NSPS Land Title Survey prepared by Meridian Land Surveying, Inc., dated August 12, 2020, last revised January 15, 2024, bearing Job Number MLS-2020-4173, and recorded in Plat Book 387, Page 42, Fulton County, Georgia records.
TOGETHER WITH all buildings, structures, and improvements now or hereafter located thereon, including the logistics warehouse facility comprising approximately 387,000 rentable square feet, and all fixtures, equipment, and appurtenances thereto.
SUBJECT TO all easements, restrictions, covenants, conditions, rights-of-way, and other matters of record, including those set forth on Exhibit P to the PSA (Permitted Exceptions).
This legal description is consistent with and cross-references the legal description set forth on Exhibit A (Legal Descriptions) to the Purchase and Sale Agreement dated as of February 28, 2024, as amended.
[End of Assignment and Assumption of Membership Interests — GMP Fairfield II LLC]
Term | Detail
Lender | Pinnacle Federal Bank, N.A.
Loan Designation | Loan 1-B under the Master Loan Agreement
Master Loan Agreement Date | September 15, 2020
Aggregate Outstanding Principal Balance (all Pinnacle loans) | $421,600,000
Fixed Interest Rate | 4.22% per annum
Maturity Date | July 1, 2028
Amortization | 30-year amortization schedule
Assumption | Being assumed by Assignee pursuant to the Assumption Agreement of even date herewith

ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS

ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS

GMP FAIRFIELD II LLC

ASSIGNOR:

ASSIGNEE:

THE COMPANY:

RECITALS

ASSIGNOR:

ASSIGNEE:

ACKNOWLEDGMENT AND CONSENT OF THE COMPANY

EXHIBIT A

DESCRIPTION OF THE MEMBERSHIP INTERESTS

EXHIBIT B

LEGAL DESCRIPTION OF THE PROPERTY

Record

Parties

Dates

Amounts