ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS
GMP Mount Juliet LLC a Delaware Limited Liability Company
Dated as of June 6, 2024
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS
This Assignment and Assumption of Membership Interests (this "Assignment") is entered into as of June 6, 2024 (the "Effective Date"), by and between:
ASSIGNOR:
Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership (the "Assignor" or "Seller"), having its principal office at 3300 Peachtree Road NE, Suite 2200, Atlanta, Georgia 30326, and its registered agent address at 1209 Orange Street, Wilmington, Delaware 19801 (EIN: 83-1647205), acting by and through its general partner, Greystone Meridian Capital LLC, a Delaware limited liability company (EIN: 83-1520984);
ASSIGNEE:
Fairwater Real Estate Investment Trust, a Maryland real estate investment trust (the "Assignee" or "Buyer"), having its principal office at 7200 Chesapeake Parkway, Suite 1100, Columbia, Maryland 21044 (EIN: 52-2198437; NYSE: FREIT);
and, solely for purposes of acknowledging and consenting to the transactions contemplated herein,
THE COMPANY:
GMP Mount Juliet LLC, a Delaware limited liability company (the "Company") (EIN: 84-2741070), formed in the State of Delaware and the owner of the real property commonly known as Mount Juliet Commerce Park, located at 400 South Mount Juliet Road, Mount Juliet, Tennessee 37122 (the "Property").
Assignor, Assignee, and, solely for purposes of Section 6 and its acknowledgment and consent set forth on the signature page hereof, the Company, are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Assignor is the owner of one hundred percent (100%) of the issued and outstanding membership interests (the "Membership Interests") in GMP Mount Juliet LLC, a Delaware limited liability company (the "Company"), and has served as the sole member of the Company since its formation;
WHEREAS, the Company is a single-purpose entity organized under the laws of the State of Delaware and qualified to transact business in the State of Tennessee, and the Company owns the real property commonly known as Mount Juliet Commerce Park, a Class A logistics and distribution property comprising approximately 298,000 rentable square feet, located at 400 South Mount Juliet Road, Mount Juliet, Tennessee 37122 (the "Property"), which was constructed and placed into service in 2021;
WHEREAS, the Property is encumbered by a mortgage loan originated by Sycamore Life Insurance Company, a Connecticut stock life insurance company ("Sycamore"), pursuant to that certain Note Purchase Agreement dated November 22, 2019, as amended (the "Note Purchase Agreement"), designated as Loan 3-B (the "Loan"), with the Company as borrower; the outstanding principal balance of such Loan, together with Loan 3-A (relating to GMP Peachtree LLC, a separate Delaware limited liability company), is part of an aggregate outstanding principal balance of Forty-Eight Million One Hundred Thousand Dollars ($48,100,000) as of February 28, 2024, bearing interest at a fixed rate of 3.95% per annum, with a scheduled maturity date of December 1, 2030;
WHEREAS, Assignor and Assignee are parties to that certain Purchase and Sale Agreement dated as of February 28, 2024, as amended by that certain First Amendment to Purchase and Sale Agreement dated April 12, 2024, and that certain Second Amendment to Purchase and Sale Agreement dated May 28, 2024 (as so amended, collectively, the "PSA"), pursuant to which Assignor agreed to sell, and Assignee agreed to purchase, one hundred percent (100%) of the membership interests in each of fourteen (14) property-owning Delaware limited liability companies, including the Company, for an aggregate purchase price of One Billion One Hundred Million Dollars ($1,100,000,000) (subject to prorations, credits, adjustments, and other modifications as provided in the PSA);
WHEREAS, the transfer of the Membership Interests from Assignor to Assignee constitutes a "change of control" and a "transfer" under the applicable loan documents evidencing and securing the Loan, requiring the prior written consent of Sycamore, and Sycamore has granted its consent to such transfer pursuant to a consent letter executed on May 22, 2024 (the "Lender Consent"), subject to, among other conditions, the execution and delivery of an Assumption Agreement and a Replacement Carve-Out Guaranty;
WHEREAS, concurrently with the execution and delivery of this Assignment, Assignee has delivered, or caused to be delivered, a Replacement Carve-Out Guaranty (the "Replacement Guaranty") in favor of Sycamore, pursuant to which Assignee has replaced Assignor and its affiliates as guarantor under the loan documents, and Assignor and its affiliates have been released from all guaranty obligations arising from and after the Effective Date;
WHEREAS, all conditions precedent to the closing of the transactions contemplated by the PSA with respect to the Company and the other target entities have been satisfied or waived as of the Effective Date, and the Parties desire to consummate the assignment and assumption of the Membership Interests as contemplated by the PSA and the other closing documents delivered in connection therewith; and
WHEREAS, this Assignment is one of fourteen (14) assignment and assumption agreements being executed and delivered concurrently as of the Effective Date, one for each of the fourteen (14) target entities identified in the PSA;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the Parties, and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Assignment, the following terms shall have the meanings set forth below. Capitalized terms used but not otherwise defined in this Assignment shall have the meanings ascribed to them in the PSA, which meanings are incorporated herein by reference.
(a) "Assignment" means this Assignment and Assumption of Membership Interests, together with 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.
(b) "Company" means GMP Mount Juliet LLC, a Delaware limited liability company (EIN: 84-2741070), the sole owner of the Property.
(c) "Effective Date" means June 6, 2024.
(d) "Effective Time" has the meaning set forth in Section 2.3 hereof.
(e) "Lender Consent" means the consent letter executed by Sycamore Life Insurance Company on May 22, 2024, consenting to the transfer of the Membership Interests and the related change of control of the Company.
(f) "Loan" means Loan 3-B under the Note Purchase Agreement, as more particularly described in Section 9.2 and Exhibit B hereof.
(g) "Membership Interests" means one hundred percent (100%) of the issued and outstanding membership interests in the Company, representing all of the equity interests in the Company of whatever kind or character, including all economic interests, voting rights, management rights, information rights, and rights to distributions and allocations.
(h) "Note Purchase Agreement" means that certain Note Purchase Agreement dated November 22, 2019, by and among Sycamore Life Insurance Company and the Company (together with GMP Peachtree LLC), as amended, modified, restated, or supplemented from time to time.
(i) "Operating Agreement" means the limited liability company operating agreement of the Company, as in effect immediately prior to the Effective Date, and as amended and restated effective as of the Effective Date pursuant to the Amended and Restated Operating Agreement executed by Assignee concurrently herewith.
(j) "Property" means the real property and improvements commonly known as Mount Juliet Commerce Park, located at 400 South Mount Juliet Road, Mount Juliet, Tennessee 37122, Wilson County, Tennessee, comprising approximately 298,000 rentable square feet and constructed in 2021, together with all appurtenances, fixtures, and personal property owned by the Company in connection therewith, as more particularly described in Section 9.1 hereof and in the legal description attached hereto as Exhibit A.
(k) "PSA" means that certain Purchase and Sale Agreement dated as of February 28, 2024, by and between Assignor (and certain of its affiliates) and Assignee, as amended by that certain First Amendment to Purchase and Sale Agreement dated April 12, 2024, and that certain Second Amendment to Purchase and Sale Agreement dated May 28, 2024, together with all exhibits and schedules thereto.
(l) "Replacement Guaranty" means the Replacement Carve-Out Guaranty executed by Assignee in favor of Sycamore Life Insurance Company, delivered concurrently with the closing of the transactions contemplated by this Assignment and the PSA, replacing Assignor and its affiliates as guarantor under the Loan documents.
(m) "Sycamore" means Sycamore Life Insurance Company, a Connecticut stock life insurance company, having its principal office at 100 Constitution Plaza, Hartford, Connecticut 06103.
Section 1.2 — Rules of Construction
(a) The headings and captions contained in this Assignment are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Assignment.
(b) Unless the context otherwise requires, words importing the singular number shall include the plural and vice versa, words importing the masculine gender shall include the feminine and neuter genders and vice versa, and references to any Person shall include such Person's successors and permitted assigns.
(c) The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation."
(d) References to "Articles," "Sections," and "Exhibits" are to the articles, sections, and exhibits of this Assignment unless otherwise specified.
(e) References to any agreement, document, or instrument shall mean such agreement, document, or instrument as amended, modified, supplemented, or restated from time to time, unless otherwise expressly provided.
(f) References to any law, statute, rule, or regulation shall include all amendments thereto, all rules and regulations promulgated thereunder, and all successor statutes, rules, and regulations.
(g) The terms "herein," "hereof," "hereto," "hereunder," and words of similar import shall refer to this Assignment as a whole, including all exhibits attached hereto.
(h) This Assignment shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing this Assignment to be drafted.
ARTICLE 2 — ASSIGNMENT OF MEMBERSHIP INTERESTS
Section 2.1 — Assignment
Assignor hereby irrevocably assigns, transfers, conveys, sets over, and delivers to Assignee, and Assignee hereby accepts from Assignor, all of Assignor's right, title, and interest in, to, and under the Membership Interests, constituting one hundred percent (100%) of the issued and outstanding membership interests in GMP Mount Juliet LLC, a Delaware limited liability company, free and clear of all liens, claims, encumbrances, pledges, security interests, charges, options, rights of first refusal, preemptive rights, community property interests, equitable interests, and other restrictions or adverse claims of any kind or nature whatsoever (collectively, "Liens"), other than (i) those Liens arising under the Assumed Loan Documents (as defined in Exhibit B hereto), (ii) restrictions on transfer set forth in the Operating Agreement, and (iii) Liens, if any, that are Permitted Exceptions as defined in and set forth in the PSA and the schedules thereto. The foregoing assignment includes, without limitation, the assignment and transfer of all of Assignor's rights to receive distributions, allocations of income, gain, loss, deduction, and credit, voting rights, management rights, consent rights, information rights, and all other rights, benefits, and privileges appurtenant to or arising from ownership of the Membership Interests.
Section 2.2 — Consideration
The assignment and transfer of the Membership Interests pursuant to this Article 2 is made in consideration of (a) the portion of the aggregate Purchase Price under the PSA allocated to the Company and the Property pursuant to the Purchase Price Allocation Schedule attached to the PSA as Exhibit K, which allocation has been agreed upon by Assignor and Assignee in accordance with Section 1060 of the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury Regulations promulgated thereunder, and (b) the other good and valuable consideration exchanged by the Parties pursuant to the PSA. The aggregate Purchase Price under the PSA for all fourteen (14) target entities is One Billion One Hundred Million Dollars ($1,100,000,000), subject to prorations, credits, and adjustments as set forth in the closing settlement statements, including without limitation the One Million Seventy Thousand Dollar ($1,070,000) credit for property condition assessment items and other adjustments reflected in the closing settlement statements executed by the Parties concurrently herewith. The Parties acknowledge that the transfer of the Membership Interests is structured as an entity-level transfer (and not as an asset-level transfer) and that such transfer includes the assumption by Assignee, through its ownership of the Company, of the existing mortgage indebtedness encumbering the Property, including Loan 3-B under the Note Purchase Agreement, all as more particularly described in Section 3.1 and Section 9.2 hereof and in Exhibit B hereto.
Section 2.3 — Effective Time
The assignment and transfer of the Membership Interests pursuant to this Article 2 shall be effective as of 11:59 p.m. Eastern Time on June 6, 2024 (the "Effective Time"). From and after the Effective Time, Assignee shall be the owner of the Membership Interests and the sole member of the Company, with all rights, powers, and obligations attendant thereto.
ARTICLE 3 — ASSUMPTION OF OBLIGATIONS
Section 3.1 — Assumption by Assignee
Effective as of the Effective Time, Assignee hereby assumes and agrees to perform, observe, fulfill, and discharge, in a timely manner and in accordance with their respective terms, all obligations, duties, liabilities, and responsibilities of Assignor (in its capacity as sole member of the Company) arising from and after the Effective Date with respect to the Membership Interests, the Company, and the Property, including without limitation the following:
(a) Operating Agreement Obligations. All obligations, duties, and liabilities under the Operating Agreement of the Company, as amended and restated effective as of the Effective Date, including all capital contribution obligations, management duties, fiduciary obligations, and other responsibilities of the sole member of the Company arising from and after the Effective Date;
(b) Lease Obligations. All obligations of the Company under the leases, subleases, licenses, and other occupancy agreements encumbering or affecting the Property (collectively, the "Leases"), which Leases form part of the eighty-seven (87) leases across the fourteen (14) property portfolio that are being transferred as part of the aggregate transaction contemplated by the PSA, including without limitation all obligations to tenants with respect to maintenance, repairs, services, buildout, free rent, and other landlord obligations arising from and after the Effective Date;
(c) Service Contract Obligations. All obligations of the Company under the service contracts, management agreements, maintenance agreements, vendor agreements, and other contracts relating to the operation, maintenance, and management of the Property that are identified on the schedule of assumed service contracts delivered in connection with the PSA and that have not been terminated on or prior to the Effective Date;
(d) Assumed Loan Obligations. All obligations of the Company, and all obligations of the sole member of the Company (in its capacity as such), under the Assumed Loan Documents (as defined in Exhibit B hereto), including without limitation Loan 3-B under the Note Purchase Agreement dated November 22, 2019, as assumed by the Company and acknowledged by Sycamore pursuant to the Assumption Agreement executed concurrently herewith, and as more particularly described in Section 9.2 hereof and in Exhibit B hereto. Without limiting the generality of the foregoing, Assignee acknowledges that the Replacement Guaranty has been executed and delivered by Assignee in favor of Sycamore concurrently with the closing of the transactions contemplated hereby;
(e) Tenant Security Deposits. All obligations of the Company with respect to tenant security deposits, letters of credit, and other security instruments held by the Company in connection with the Leases, which tenant security deposits are part of the aggregate Four Million Two Hundred Eighty-Three Thousand Dollars ($4,283,000) in tenant security deposits held across the fourteen (14) property portfolio as of the Effective Date. Assignee acknowledges receipt of a schedule of all tenant security deposits held by the Company as of the Effective Date, delivered as part of the closing deliverables under the PSA; and
(f) Real Property Tax Obligations. All real property tax, assessment, and other governmental charge obligations for the Property for all periods from and after the proration date (June 6, 2024), subject to the proration and true-up provisions set forth in Sections 8.4 through 8.7 of the PSA. The Parties acknowledge that real property taxes for the Property have been prorated as of the Effective Date based on the most recent available tax bills, and such prorations shall be subject to a post-closing true-up within one hundred twenty (120) days following the issuance of final tax bills for the applicable tax year, all as more particularly set forth in the PSA.
Section 3.2 — Assignor's Retained Obligations
Notwithstanding anything to the contrary contained in this Assignment, Assignor shall retain and remain responsible for all obligations, duties, liabilities, and responsibilities arising prior to the Effective Date to the extent that such obligations, duties, liabilities, and responsibilities have not been expressly assumed by Assignee under Section 3.1 hereof or under the PSA. The foregoing retention of obligations by Assignor is subject in all respects to the terms, conditions, indemnification provisions, limitations of liability, cap provisions, basket and de minimis thresholds, and survival limitations set forth in the PSA, and nothing in this Assignment shall be construed to expand, modify, or otherwise alter Assignor's obligations or liabilities beyond those expressly set forth in the PSA. For the avoidance of doubt, the indemnification provisions, caps, baskets, and survival periods set forth in the PSA shall govern and control with respect to any claims arising out of or relating to the obligations retained by Assignor under this Section 3.2.
ARTICLE 4 — REPRESENTATIONS AND WARRANTIES OF ASSIGNOR
Assignor hereby represents and warrants to Assignee as of the Effective Date as follows:
Section 4.1 — Organization and Authority
Assignor is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware. Greystone Meridian Capital LLC, a Delaware limited liability company, is the duly appointed general partner of Assignor and has full power and authority on behalf of Assignor to execute, deliver, and perform this Assignment and each of the other documents, instruments, and agreements to be executed and delivered by Assignor in connection with the transactions contemplated hereby. The execution, delivery, and performance of this Assignment by Assignor have been duly authorized by all requisite partnership action of Assignor, including all necessary approvals of the general partner and the limited partners of Assignor (to the extent required under Assignor's limited partnership agreement), and no further action on the part of Assignor or any of its partners is necessary to authorize the execution, delivery, and performance of this Assignment. The authorized signatories of Assignor are as set forth in the Secretary's Certificate of the general partner of Assignor delivered to Assignee concurrently herewith.
Section 4.2 — Ownership of Membership Interests
Assignor is the sole owner of record and the sole beneficial owner of one hundred percent (100%) of the Membership Interests. The Membership Interests constitute all of the issued and outstanding equity interests in the Company of whatever kind or character. The Membership Interests are free and clear of all Liens other than (i) restrictions arising under the Assumed Loan Documents, (ii) restrictions on transfer set forth in the Operating Agreement, and (iii) Liens, if any, that have been disclosed to Assignee in the PSA and the schedules and exhibits thereto. There are no outstanding options, warrants, convertible securities, rights of first refusal, preemptive rights, co-sale rights, or other rights or agreements of any kind that could require Assignor to issue, sell, or transfer any membership interests in the Company or that could give rise to any Lien on the Membership Interests. Assignor has not entered into any agreement, arrangement, or understanding (whether written or oral) to sell, transfer, pledge, encumber, or otherwise dispose of any portion of the Membership Interests other than as contemplated by the PSA and this Assignment.
Section 4.3 — No Conflicts
The execution, delivery, and performance of this Assignment by Assignor does not and will not (a) violate, conflict with, or result in a breach of any provision of the limited partnership agreement or certificate of limited partnership of Assignor, the operating agreement or certificate of formation of the Company, or the organizational documents of Greystone Meridian Capital LLC; (b) violate, conflict with, or constitute a default (or an event that, with the giving of notice or the passage of time or both, would constitute a default) under any agreement, mortgage, indenture, instrument, judgment, order, decree, statute, law, rule, or regulation to which Assignor, the Company, or any of their respective assets is subject or bound; or (c) result in the creation or imposition of any Lien on the Membership Interests (other than Liens arising under this Assignment or the Assumed Loan Documents).
Section 4.4 — Consents
All consents, approvals, authorizations, permits, waivers, filings, registrations, and notifications of or with any governmental authority, lender, counterparty, or other Person required for the valid execution, delivery, and performance of this Assignment by Assignor and the consummation of the transactions contemplated hereby have been duly obtained or made prior to or concurrently with the Effective Date. Without limiting the generality of the foregoing, (i) the Lender Consent from Sycamore Life Insurance Company was duly executed and delivered on May 22, 2024, consenting to the transfer of the Membership Interests and the change of control of the Company, and (ii) no other third-party consent is required for the valid assignment and transfer of the Membership Interests to Assignee. In connection with the Lender Consent, the Parties have paid a consent fee in the aggregate amount of Sixty Thousand One Hundred Twenty-Five Dollars ($60,125), calculated as 0.125% of the aggregate outstanding principal balance of Forty-Eight Million One Hundred Thousand Dollars ($48,100,000) for Loans 3-A and 3-B under the Note Purchase Agreement as of February 28, 2024, which consent fee has been allocated between the Parties as follows: Assignor's share of Thirty Thousand Sixty-Two Dollars and Fifty Cents ($30,062.50) and Assignee's share of Thirty Thousand Sixty-Two Dollars and Fifty Cents ($30,062.50), based on the 50/50 cost-sharing allocation for lender consent fees set forth in the PSA, all as part of the aggregate consent fees payable in connection with the closing of the transactions contemplated by the PSA.
Section 4.5 — Bring-Down of PSA Representations
The representations and warranties of Assignor set forth in the PSA are hereby brought down and reaffirmed by Assignor as of the Effective Date, as qualified, modified, and supplemented by the updated disclosure schedules and the Seller's Closing Certificate delivered by Assignor to Assignee concurrently herewith. Such representations and warranties shall survive the Effective Date in accordance with and subject to the survival periods set forth in the PSA, including eighteen (18) months following the Effective Date for general representations and warranties and thirty-six (36) months following the Effective Date for tax representations and warranties, and shall be subject to all other limitations and qualifications set forth in the PSA.
ARTICLE 5 — REPRESENTATIONS AND WARRANTIES OF ASSIGNEE
Assignee hereby represents and warrants to Assignor as of the Effective Date as follows:
Section 5.1 — Organization and Authority
Assignee is a real estate investment trust duly organized, validly existing, and in good standing under the laws of the State of Maryland. Assignee has full trust power and authority to execute, deliver, and perform this Assignment and each of the other documents, instruments, and agreements to be executed and delivered by Assignee in connection with the transactions contemplated hereby. The execution, delivery, and performance of this Assignment by Assignee have been duly authorized by all requisite action on the part of Assignee, including resolutions duly adopted by the board of trustees of Fairwater Real Estate Investment Trust at a meeting duly called and held, at which a quorum was present and acting throughout, as certified in the Secretary's Certificate of Assignee delivered to Assignor concurrently herewith. No further action on the part of Assignee, its board of trustees, its shareholders, or any other Person is necessary to authorize the execution, delivery, and performance of this Assignment or the consummation of the transactions contemplated hereby.
Section 5.2 — No Conflicts
The execution, delivery, and performance of this Assignment by Assignee does not and will not (a) violate, conflict with, or result in a breach of any provision of the declaration of trust, bylaws, or other organizational documents of Assignee; (b) violate, conflict with, or constitute a default (or an event that, with the giving of notice or the passage of time or both, would constitute a default) under any agreement, mortgage, indenture, instrument, judgment, order, decree, statute, law, rule, or regulation to which Assignee or any of its assets is subject or bound; or (c) result in the creation or imposition of any Lien on any of the assets or properties of Assignee.
Section 5.3 — Financial Capacity
Assignee has, and as of the Effective Date will have, sufficient funds, cash on hand, and available financing commitments to consummate the transactions contemplated by this Assignment and the PSA, including payment of the portion of the aggregate Purchase Price allocable to the Company and the Property (net of assumed indebtedness) and all other amounts payable by Assignee in connection with the closing. Without limiting the generality of the foregoing, Assignee has access to the Seven Hundred Fifty Million Dollar ($750,000,000) unsecured revolving credit facility with Aldgate National Bank, N.A., as administrative agent and a lender, dated August 14, 2022, bearing interest at the Secured Overnight Financing Rate (SOFR) plus 130 basis points, with sufficient available borrowing capacity to fund the equity portion of the Purchase Price. In addition, Assignee represents and warrants that, as of the Effective Date, Assignee satisfies (i) the Guarantor Net Worth Covenant set forth in the Replacement Guaranty, requiring a minimum tangible net worth of Five Hundred Million Dollars ($500,000,000), and (ii) the Guarantor Liquidity Covenant set forth in the Replacement Guaranty, requiring minimum liquid assets of Fifty Million Dollars ($50,000,000), in each case as calculated in accordance with the definitions and methodologies set forth in the Replacement Guaranty and the Assumed Loan Documents.
ARTICLE 6 — ADMISSION OF ASSIGNEE AS SOLE MEMBER
Section 6.1 — Withdrawal of Assignor
Effective as of the Effective Time, Assignor hereby withdraws as the sole member of the Company and relinquishes all rights, powers, duties, obligations, and responsibilities of the sole member of the Company arising from and after the Effective Time. From and after the Effective Time, Assignor shall have no further rights or obligations with respect to the Membership Interests or the Company in Assignor's capacity as sole member, except as expressly provided in the PSA or in any other closing document delivered in connection therewith.
Section 6.2 — Admission of Assignee
Effective as of the Effective Time, Assignee is hereby admitted as the sole member of the Company, holding one hundred percent (100%) of the Membership Interests. From and after the Effective Time, Assignee shall have all rights, powers, and obligations of the sole member of the Company as set forth in the Amended and Restated Operating Agreement and applicable law, including the Delaware Limited Liability Company Act (6 Del. C. § 18-101 et seq.). The Parties acknowledge and agree that, from and after the Effective Time, Assignee shall be the sole Person entitled to exercise any and all rights appurtenant to the Membership Interests, including the right to vote, consent, approve, appoint and remove managers, receive distributions, and exercise all other rights of the sole member of the Company.
Section 6.3 — Amended and Restated Operating Agreement
Concurrently with the execution and delivery of this Assignment, Assignee has executed an Amended and Restated Operating Agreement of GMP Mount Juliet LLC (the "Amended and Restated Operating Agreement"), which Amended and Restated Operating Agreement amends, restates, and supersedes the prior Operating Agreement in its entirety and reflects Assignee as the sole member and designates such officers, managers, and authorized persons as Assignee shall determine. The Parties acknowledge that the following post-closing filings shall be made by or on behalf of Assignee promptly following the Effective Date:
(a) A Manager Change Filing (or equivalent amendment to the Certificate of Formation) with the Delaware Secretary of State, Division of Corporations, to reflect any change in the registered agent, registered office, or other information required to be updated in connection with the change in sole member; and
(b) A Foreign Qualification Update (or equivalent amendment to the Application for Certificate of Authority or Registration) with the Tennessee Secretary of State, to reflect the change in membership and such other information as may be required under Tennessee law in connection with the Company's continued authorization to transact business in the State of Tennessee.
Assignee shall bear all costs and expenses associated with such filings and shall use commercially reasonable efforts to complete such filings within thirty (30) days following the Effective Date.
ARTICLE 7 — FURTHER ASSURANCES
Section 7.1 — Cooperation
Each Party agrees, at the reasonable request of any other Party, to execute and deliver such additional documents, instruments, certificates, and agreements, and to take such additional actions, as may be reasonably necessary or desirable to carry out and effectuate the purposes and intent of this Assignment and the transactions contemplated hereby. Without limiting the generality of the foregoing, the Parties shall cooperate in good faith and use commercially reasonable efforts to provide any documents, instruments, or information that may be required or reasonably requested by (a) Sycamore Life Insurance Company or its counsel, Partridge Wynn & Slater LLP (Partner: Claire Wynn), One Financial Plaza, Hartford, Connecticut 06103, in connection with the consummation of the Assumption Agreement and the Replacement Guaranty and the satisfaction of any post-closing requirements under the Lender Consent; (b) Commonwealth National Title Insurance Company, in its capacity as title insurer and escrow agent for the transactions contemplated by the PSA, in connection with the issuance of the owner's title insurance policy, the recordation of any instruments, or the disbursement of escrow funds; or (c) Ellsworth Ridley LLP, as Tennessee local counsel, in connection with the delivery of local law opinions, the recordation of instruments in Wilson County, Tennessee, or the completion of any state or local filings required in connection with the transactions contemplated hereby.
Section 7.2 — Foreign Qualification and State Filings
Assignee shall, promptly following the Effective Date, and in any event within the time periods required by applicable law, update the Company's foreign qualification filings, registrations, and related documents in the State of Tennessee to reflect the change in membership of the Company from Assignor to Assignee and to provide such other updated information as may be required under Tennessee law. Assignee shall also ensure that the Company maintains its good standing and authorization to transact business in the State of Tennessee at all times. Assignor shall reasonably cooperate with Assignee in connection with any such filings to the extent that Assignor's consent, signature, or other action is required.
ARTICLE 8 — RELATIONSHIP TO PSA
Section 8.1 — PSA Controls
This Assignment is delivered by Assignor to Assignee pursuant to and in furtherance of the obligations of the Parties under the PSA and constitutes one of the closing deliverables required to be executed and delivered at the closing of the transactions contemplated by the PSA. This Assignment is subject in all respects to the terms, conditions, representations, warranties, covenants, and agreements set forth in the PSA. In the event of any conflict, inconsistency, or ambiguity between any provision of this Assignment and any provision of the PSA, the terms and provisions of the PSA shall govern and control in all respects. Without limiting the generality of the foregoing, the following provisions of the PSA are incorporated herein by reference and shall apply to this Assignment as if fully set forth herein:
(a) The indemnification provisions set forth in Article 11 of the PSA, including Assignor's and Assignee's respective indemnification obligations and the procedures for making and resolving indemnification claims;
(b) The limitations of liability and cap provisions set forth in Section 11.4 of the PSA, including (i) the general representation cap of Fifty-Five Million Dollars ($55,000,000), (ii) the fundamental representation cap of One Hundred Ten Million Dollars ($110,000,000), (iii) the basket (deductible) of Five Million Five Hundred Thousand Dollars ($5,500,000), and (iv) the de minimis threshold of Two Hundred Seventy-Five Thousand Dollars ($275,000) for individual claims;
(c) The survival provisions set forth in Section 11.1 of the PSA, including the eighteen (18)-month survival period for general representations and warranties and the thirty-six (36)-month survival period for tax representations and warranties; and
(d) The dispute resolution provisions, including the governing law, jurisdiction, and waiver of jury trial provisions set forth in Article 13 of the PSA.
Nothing in this Assignment shall be construed to expand, limit, modify, or otherwise alter the representations, warranties, covenants, indemnities, limitations of liability, cap provisions, basket and de minimis thresholds, survival periods, or other terms and conditions set forth in the PSA.
Section 8.2 — Not a Separate Indemnity
This Assignment does not create, and shall not be construed to create, any separate, independent, or additional indemnification obligations, rights, or remedies beyond those expressly set forth in the PSA and the other closing documents delivered in connection therewith. Any and all claims for indemnification, breach of representation or warranty, or breach of covenant arising out of or relating to this Assignment, the Membership Interests, the Company, or the Property shall be made and resolved exclusively in accordance with the indemnification provisions, limitations, and procedures set forth in the PSA.
Section 8.3 — R&W Insurance
The Parties acknowledge that, concurrently with the closing of the transactions contemplated by the PSA, Assignee has bound a buyer-side representations and warranties insurance policy (the "R&W Policy") issued by Sentinel Specialty Insurance Company, with a policy limit of Fifty-Five Million Dollars ($55,000,000) and a retention (self-insured amount) of Eleven Million Dollars ($11,000,000). The existence of the R&W Policy does not limit, modify, or otherwise affect the rights and obligations of the Parties under this Assignment or the PSA, except to the extent expressly provided in the PSA. Assignee shall comply with all terms and conditions of the R&W Policy, including all notice requirements, and shall not take any action that would impair or invalidate the coverage provided thereunder without the prior written consent of Assignor (to the extent Assignor's rights under the PSA could be affected thereby).
ARTICLE 9 — PROPERTY DESCRIPTION AND LOAN IDENTIFICATION
Section 9.1 — Property Details
The following table sets forth certain key information regarding the Property owned by the Company:
Section 9.2 — Assumed Loan Details
The following table sets forth certain key information regarding the assumed mortgage loan encumbering the Property:
A complete list of the Assumed Loan Documents relating to Loan 3-B is set forth on Exhibit B attached hereto.
ARTICLE 10 — MISCELLANEOUS PROVISIONS
Section 10.1 — Governing Law
This Assignment shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to the conflicts of law principles thereof that would result in the application of the laws of any other jurisdiction, consistent with the governing law provision set forth in the PSA. Each Party hereby irrevocably submits to the exclusive jurisdiction of the federal and state courts located in the Borough of Manhattan, City of New York, State of New York, for the adjudication of any dispute arising out of or relating to this Assignment, and each Party hereby irrevocably waives any objection to venue in such courts or any claim that such courts constitute an inconvenient forum.
Section 10.2 — Binding Effect; Successors and Assigns
This Assignment shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors, assigns, heirs, executors, administrators, and legal representatives. No Party may assign or transfer its rights or obligations under this Assignment without the prior written consent of the other Party, except as otherwise expressly permitted by the PSA.
Section 10.3 — Counterparts; Electronic Signatures
This Assignment may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page to this Assignment by facsimile, portable document format (.pdf), or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Assignment. Electronic signatures complying with the federal ESIGN Act of 2000, the Uniform Electronic Transactions Act, or other applicable law shall have the same legal force and effect as original ink signatures.
Section 10.4 — Entire Agreement
This Assignment, together with the PSA and the other closing documents, instruments, certificates, and agreements delivered by the Parties in connection with the closing of the transactions contemplated by the PSA (including, without limitation, the Assumption Agreement, the Replacement Guaranty, the Amended and Restated Operating Agreement, the Seller's Closing Certificate, the Buyer's Closing Certificate, and the other closing deliverables), constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior negotiations, discussions, agreements, understandings, representations, and warranties, whether written or oral, relating to such subject matter.
Section 10.5 — Severability
If any term, provision, covenant, or condition of this Assignment is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the terms, provisions, covenants, and conditions of this Assignment shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby. The Parties shall negotiate in good faith to replace any such invalid, void, or unenforceable provision with a valid and enforceable provision that, to the greatest extent possible, achieves the original intent and economic effect of the invalid, void, or unenforceable provision.
Section 10.6 — Amendment
This Assignment may not be amended, modified, supplemented, restated, or waived except by a written instrument duly executed by both Assignor and Assignee. No oral agreement, course of dealing, or course of performance shall be effective to amend, modify, or waive any provision of this Assignment.
Section 10.7 — Notices
All notices, requests, demands, consents, approvals, and other communications required or permitted to be given under this Assignment shall be in writing and shall be deemed duly given when (a) delivered personally, (b) sent by registered or certified mail, return receipt requested, postage prepaid, (c) sent by nationally recognized overnight courier service, or (d) transmitted by electronic mail (with confirmation of receipt), in each case addressed 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 and Elise Rathborne
Email: vlansdell@greystonemeridian.com; erathborne@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, and Marcus Devereaux, EVP Acquisitions
Email: depark@fairwaterreit.com; mdevereaux@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
Any Party may change its address for notices by giving written notice to the other Party in accordance with this Section 10.7.
Section 10.8 — Waiver
No failure or delay by either Party in exercising any right, power, or remedy under this Assignment shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. No waiver of any provision of this Assignment shall be effective unless made in writing and signed by the Party granting such waiver.
Section 10.9 — Tax Treatment
The Parties acknowledge and agree that the transfer of the Membership Interests is intended to be treated, for federal income tax purposes, in accordance with the Purchase Price Allocation Schedule attached to the PSA as Exhibit K and the agreed allocation methodology under Section 1060 of the Code and the Treasury Regulations promulgated thereunder. Each Party shall file all tax returns, reports, and information statements (including IRS Form 8594) consistent with such agreed allocation and shall not take any position inconsistent therewith on any tax return, in any tax proceeding, or otherwise, unless required by a final determination (within the meaning of Section 1313(a) of the Code) of a taxing authority. Each Party shall promptly notify the other Party of any challenge by any taxing authority to the agreed allocation and shall cooperate in good faith to defend such allocation.
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SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS GMP MOUNT JULIET LLC
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
SIGNATURE PAGE TO ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS GMP MOUNT JULIET LLC
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 Mount Juliet LLC, a Delaware limited liability company, hereby acknowledges and consents to the foregoing assignment and assumption of the Membership Interests, the withdrawal of Assignor as sole member of the Company, and the admission of Assignee as the sole member of the Company, in each case effective as of the Effective Time. The Company acknowledges that, from and after the Effective Time, Assignee shall be the sole member of the Company, holding one hundred percent (100%) of the Membership Interests, with all rights, powers, and obligations attendant thereto.
GMP MOUNT JULIET LLC, a Delaware limited liability company
By: Greystone Meridian Partners Fund III, L.P.,
a Delaware limited partnership (as sole member prior to the Effective Time)
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
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
The real property owned by GMP Mount Juliet LLC, a Delaware limited liability company, commonly known as Mount Juliet Commerce Park, located at 400 South Mount Juliet Road, Mount Juliet, Wilson County, Tennessee 37122, and being more particularly described as follows:
Parcel 1:
Being a tract of land situated in the Fifth (5th) Civil District of Wilson County, Tennessee, and being more particularly described by reference to that certain boundary survey prepared by Harper McAlister & Associates, P.C., Tennessee Registration No. S-4821, dated September 17, 2020, last revised March 8, 2021, designated as Project No. HMA-2020-0491, and by reference to that certain plat of record in Plat Cabinet 14, Slide 287, Register's Office of Wilson County, Tennessee, to which plat reference is hereby made for a more particular description of the property conveyed herein.
Together with all easements, rights-of-way, privileges, and appurtenances thereunto belonging, including without limitation (i) all easements created by that certain Declaration of Covenants, Conditions, and Restrictions for Mount Juliet Commerce Park, recorded as Instrument No. 2020-08817, Register's Office of Wilson County, Tennessee, as amended, and (ii) all access and utility easements of record.
Subject to (a) all matters shown on the survey referenced above; (b) all easements, restrictions, conditions, covenants, reservations, rights-of-way, and encumbrances of record in the Register's Office of Wilson County, Tennessee; (c) any and all applicable zoning ordinances, building codes, and governmental regulations; and (d) real property taxes and assessments not yet due and payable.
This legal description is the same legal description set forth on Exhibit A to the PSA with respect to Property No. 14 (Mount Juliet Commerce Park) and is incorporated herein by reference thereto.
Note: The legal description set forth above is a summary reference. The complete metes-and-bounds legal description is set forth in the survey and plat referenced above and in the deed of record in the Register's Office of Wilson County, Tennessee, all of which are incorporated herein by this reference. In the event of any discrepancy between the summary description above and the recorded instruments, the recorded instruments shall control.
EXHIBIT B
LIST OF ASSUMED LOAN DOCUMENTS (LOAN 3-B)
The following is a list of the loan documents (collectively, the "Assumed Loan Documents") relating to Loan 3-B originated by Sycamore Life Insurance Company, a Connecticut stock life insurance company, and secured in part by the Property, as identified on Exhibit Q to the PSA:
1. Note Purchase Agreement, dated November 22, 2019, by and among Sycamore Life Insurance Company, GMP Mount Juliet LLC, and GMP Peachtree LLC, as amended by that certain First Amendment to Note Purchase Agreement dated March 15, 2021, and as further amended, modified, supplemented, or restated from time to time.
2. Promissory Note (Loan 3-B), dated November 22, 2019, executed by GMP Mount Juliet LLC in favor of Sycamore Life Insurance Company, in the original principal amount allocated to Loan 3-B under the Note Purchase Agreement, as amended, modified, or restated from time to time.
3. Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture Filing, dated November 22, 2019, executed by GMP Mount Juliet LLC, as grantor, to Commonwealth National Title Insurance Company, as trustee, for the benefit of Sycamore Life Insurance Company, as beneficiary, recorded in the Register's Office of Wilson County, Tennessee, as Instrument No. 2019-14782, as amended by that certain First Amendment to Deed of Trust recorded as Instrument No. 2021-05914, Register's Office of Wilson County, Tennessee, and as further amended, modified, supplemented, or restated from time to time.
4. Assignment of Leases and Rents, dated November 22, 2019, executed by GMP Mount Juliet LLC in favor of Sycamore Life Insurance Company, recorded in the Register's Office of Wilson County, Tennessee, as Instrument No. 2019-14783, as amended, modified, supplemented, or restated from time to time.