CALDERWOOD & HARKNESS LLP
1700 K Street NW, Suite 900 Washington, DC 20006 Telephone: (202) 555-8400 Facsimile: (202) 555-8401
450 Park Avenue, 28th Floor New York, NY 10022 Telephone: (212) 555-7200 Facsimile: (212) 555-7201
Matter Number: 1036-00004
WIRE TRANSFER INSTRUCTIONS
Commonwealth National Title Insurance Company Escrow Release and Indemnity Escrow Funding
Date: June 6, 2024 (Closing Date)
INTRODUCTORY PARAGRAPH / PURPOSE
This document sets forth the wire transfer instructions to be followed in connection with the closing (the "Closing") of the acquisition (the "Acquisition") by Fairwater Real Estate Investment Trust, a Maryland real estate investment trust ("Buyer"), of one hundred percent (100%) of the membership interests (the "Interests") in fourteen (14) property-owning single-purpose Delaware limited liability companies (the "Property LLCs") from Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership ("Seller"), pursuant to that certain Purchase and Sale Agreement, dated as of February 28, 2024, by and between Buyer and Seller, as amended by the First Amendment to Purchase and Sale Agreement, dated as of April 12, 2024, and as further amended by the Second Amendment to Purchase and Sale Agreement, dated as of May 28, 2024 (as so amended, collectively, the "PSA"). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the PSA.
The Closing Date is June 6, 2024.
Commonwealth National Title Insurance Company ("Commonwealth National Title" or the "Escrow Agent") serves as escrow agent under (a) the Escrow Agreement — Earnest Money Deposit, dated as of March 1, 2024, executed by and among Buyer, Seller, and Commonwealth National Title (the "Earnest Money Escrow Agreement"), and (b) the Escrow Agreement — Indemnity Escrow, dated as of June 6, 2024, executed by and among Buyer, Seller, and Commonwealth National Title (the "Indemnity Escrow Agreement" and, together with the Earnest Money Escrow Agreement, the "Escrow Agreements"), in each case for the purpose of holding, investing, and disbursing the escrow funds described herein. The escrow office of Commonwealth National Title responsible for administering the Escrow Agreements is located at 191 Peachtree Street NE, Suite 800, Atlanta, Georgia 30303. The title officer assigned to this matter is Kenneth Stanhope, Senior Vice President, and national counsel for Commonwealth National Title with respect to this transaction is Virginia Moorehead, AVP.
These wire transfer instructions are delivered to Commonwealth National Title as the joint direction of Buyer and Seller (through their respective authorized representatives and counsel) and shall be deemed irrevocable upon delivery, subject to the conditions set forth herein. All parties are reminded that no wire transfers should be initiated until the verification and callback procedures set forth in Section 8 below have been completed in full.
SECTION 1: SUMMARY OF ESCROW AMOUNTS
1.1 Earnest Money Deposit Escrow
Pursuant to the terms of the PSA and the Earnest Money Escrow Agreement, the following deposits have been made by Buyer with Commonwealth National Title:
(a) Initial Earnest Money Deposit: Twenty-Seven Million Five Hundred Thousand Dollars ($27,500,000), representing two and one-half percent (2.5%) of the aggregate Purchase Price of One Billion One Hundred Million Dollars ($1,100,000,000). The Initial Earnest Money Deposit was wired to Commonwealth National Title and deposited into the Earnest Money Deposit escrow account on March 1, 2024, upon execution of the PSA.
(b) Additional Deposit: Twenty-Seven Million Five Hundred Thousand Dollars ($27,500,000) (the "Additional Deposit"), which became non-refundable and "hard" upon the expiration of the Due Diligence Period on April 15, 2024, pursuant to Section 3.2(b) of the PSA. The Additional Deposit was wired to Commonwealth National Title and deposited into the Earnest Money Deposit escrow account on April 16, 2024.
(c) Aggregate Earnest Money Deposits: The total amount currently held by Commonwealth National Title in the Earnest Money Deposit escrow account is Fifty-Five Million Dollars ($55,000,000), exclusive of accrued interest thereon (the "Aggregate Earnest Money Deposits").
The Aggregate Earnest Money Deposits are held in accordance with the terms and conditions of the Earnest Money Escrow Agreement, dated as of March 1, 2024, a copy of which is on file with each of the parties and their respective counsel.
1.2 Indemnity Escrow Funding
In addition to the release of the Aggregate Earnest Money Deposits, the Closing requires the funding of an indemnity escrow in accordance with Article X of the PSA and the Indemnity Escrow Agreement, as follows:
(a) Indemnity Escrow Amount: Sixteen Million Five Hundred Thousand Dollars ($16,500,000), representing one and one-half percent (1.5%) of the aggregate Purchase Price of One Billion One Hundred Million Dollars ($1,100,000,000) (the "Indemnity Escrow Amount").
(b) Source of Funding: The Indemnity Escrow Amount is to be funded at Closing from Buyer's closing funds and wired directly to Commonwealth National Title's segregated Indemnity Escrow account as described in Section 3.2 below.
(c) Escrow Term: The Indemnity Escrow Amount shall be held by Commonwealth National Title for a period of eighteen (18) months from the Closing Date, commencing on June 6, 2024 and ending on December 6, 2025 (the "Escrow Term"). The remaining balance of the Indemnity Escrow Amount (net of any amounts disbursed or reserved in connection with pending claims) shall be eligible for release to Seller within ten (10) business days following the expiration of the Escrow Term, provided that no claims are then pending.
(d) Reference: Escrow Agreement — Indemnity Escrow, executed as of June 6, 2024, by and among Buyer, Seller, and Commonwealth National Title.
SECTION 2: WIRE TRANSFER INSTRUCTIONS — RELEASE OF EARNEST MONEY DEPOSITS ($55,000,000)
2.1 Direction of Release
Pursuant to Section 3.3 of the PSA and Section 4 of the Earnest Money Escrow Agreement, and upon the satisfaction (or waiver) of all conditions precedent to the Closing as set forth in Article VII of the PSA, Commonwealth National Title Insurance Company is hereby irrevocably directed to release the Aggregate Earnest Money Deposits of Fifty-Five Million Dollars ($55,000,000), exclusive of accrued interest, from the Earnest Money Deposit escrow account. The Aggregate Earnest Money Deposits of $55,000,000 constitute a credit to Buyer against the cash equity portion of the Purchase Price; accordingly, such deposits are to be released from escrow and applied to Seller's closing proceeds by wire transfer to Seller's designated account as set forth in Section 4 below. For the avoidance of doubt, the release of the Aggregate Earnest Money Deposits to Seller is a component of the aggregate cash consideration payable to Seller at Closing and reduces, dollar for dollar, the amount of new closing funds required to be wired by Buyer to Seller on the Closing Date.
Accrued interest on the Aggregate Earnest Money Deposits is to be treated separately in accordance with Section 5 and Section 6 below.
2.2 Authorization. This release instruction is executed jointly by Buyer and Seller, as required under Section 4(a) of the Earnest Money Escrow Agreement, which provides that the Aggregate Earnest Money Deposits shall not be released by Commonwealth National Title absent joint written authorization from both Buyer and Seller (or their respective counsel, acting in accordance with authority delegated under the Escrow Agreement). The authorized signatories for purposes of this release instruction are as follows:
For Buyer — Fairwater Real Estate Investment Trust: Marcus Devereaux, Executive Vice President, Acquisitions
For Seller — Greystone Meridian Partners Fund III, L.P.: Victor Lansdell, Co-Founder & Managing Partner, Greystone Meridian Capital LLC, in its capacity as general partner of Greystone Meridian Partners Fund III, L.P.
Each of the foregoing individuals has been duly authorized by the respective party to execute and deliver this release instruction and to bind such party with respect to the matters set forth herein. Evidence of such authorization is on file with Commonwealth National Title and with Calderwood & Harkness LLP.
2.3 Timing. Commonwealth National Title shall initiate the wire transfer of the Aggregate Earnest Money Deposits to Seller's designated account upon confirmation of the receipt of all closing funds from Buyer (including the Indemnity Escrow Amount) and the satisfaction or waiver of all conditions precedent to the Closing, which is anticipated to occur on June 6, 2024. Commonwealth National Title shall not initiate the release wire until it has received written confirmation from counsel for Buyer (Calderwood & Harkness LLP) and counsel for Seller (Blackridge Hayes LLP) that all closing conditions have been satisfied or waived and that the Closing is authorized to proceed.
Upon initiation of the wire transfer, Commonwealth National Title is directed to provide confirmation of wire initiation by email to both counsel at the following addresses:
Calderwood & Harkness LLP (Buyer's Counsel):
• Grace Nakamura, Lead Associate — gnakamura@calderwoodharkness.com
• Rafael Dominguez, Working Associate — rdominguez@calderwoodharkness.com
Blackridge Hayes LLP (Seller's Counsel):
• Thomas Keating, Senior Associate — tkeating@blackridgehayes.com
SECTION 3: WIRE TRANSFER INSTRUCTIONS — INDEMNITY ESCROW FUNDING ($16,500,000)
3.1 Direction to Fund
Buyer hereby directs that its closing funds include the sum of Sixteen Million Five Hundred Thousand Dollars ($16,500,000) to be wired directly to Commonwealth National Title Insurance Company's escrow account designated for the Indemnity Escrow as described in Section 3.2 below. These funds are to be held by Commonwealth National Title in a segregated, interest-bearing escrow account pursuant to the terms and conditions of the Indemnity Escrow Agreement, dated as of June 6, 2024. The Indemnity Escrow Amount, together with all interest, earnings, and other amounts accrued thereon, shall collectively constitute the "Indemnity Escrow Fund." Interest accruing on the Indemnity Escrow Fund shall accrue for the benefit of Seller (subject to deductions in connection with any claims made against the Indemnity Escrow Fund by Buyer in accordance with the indemnification provisions set forth in Article X of the PSA).
Commonwealth National Title is directed to invest the Indemnity Escrow Fund in a federally insured, interest-bearing money market account or such other investment as may be jointly directed by Buyer and Seller in writing, in each case in accordance with the terms of the Indemnity Escrow Agreement.
3.2 Commonwealth National Title — Indemnity Escrow Receiving Account
The following are the wire instructions for Commonwealth National Title's Indemnity Escrow receiving account:
IMPORTANT: The ABA routing number and account number for the Indemnity Escrow receiving account are to be confirmed by Kenneth Stanhope, Senior Vice President of Commonwealth National Title, via telephone callback prior to wire initiation in accordance with the verification procedures set forth in Section 8 below. Under no circumstances should any wire transfer be initiated to this account until the routing number and account number have been independently verified through the callback procedures described herein.
3.3 Escrow Terms Summary
The material terms of the Indemnity Escrow, as set forth in the Indemnity Escrow Agreement, are summarized below for reference:
(a) Escrow Term: Eighteen (18) months from the Closing Date, commencing June 6, 2024 and expiring December 6, 2025.
(b) Release of Remaining Balance: Subject to no pending or unresolved claims against the Indemnity Escrow Fund, the remaining balance of the Indemnity Escrow Fund (including accrued interest) shall be released to Seller within ten (10) business days following December 6, 2025.
(c) Claims Against Escrow: Buyer may submit claims against the Indemnity Escrow Fund in accordance with the indemnification provisions set forth in Article X of the PSA. Individual claims are subject to a de minimis threshold of Two Hundred Seventy-Five Thousand Dollars ($275,000) per claim (i.e., no claim may be submitted against the Indemnity Escrow Fund unless the Losses associated with such claim equal or exceed $275,000). Claims are further subject to a tipping basket (aggregate deductible) of Five Million Five Hundred Thousand Dollars ($5,500,000), after which all amounts (including amounts below the tipping basket threshold) become recoverable from the Indemnity Escrow Fund, subject to the cap set forth in the PSA.
(d) Escrow Agent Fee: The escrow agent fee payable to Commonwealth National Title for administration of the Indemnity Escrow shall be as set forth in a separate fee agreement executed by the parties and Commonwealth National Title, the terms of which have been agreed upon prior to the date hereof.
SECTION 4: SELLER'S WIRE INSTRUCTIONS (DESTINATION FOR DEPOSIT RELEASE)
The following wire instructions have been provided by Seller for receipt of the Aggregate Earnest Money Deposits of $55,000,000 (and, separately, Seller's aggregate closing proceeds as set forth in the Funds Flow Memorandum):
VERIFICATION NOTE: The wire instructions set forth above are to be independently verified via telephone callback to Victor Lansdell, Co-Founder & Managing Partner, or Elise Rathborne, Chief Financial Officer, at Greystone Meridian Capital LLC, 3300 Peachtree Road NE, Suite 2200, Atlanta, GA 30326, prior to the initiation of any wire transfer to Seller's account. The callback contact numbers for Mr. Lansdell and Ms. Rathborne are set forth in Section 8.1 below. Commonwealth National Title shall not initiate any wire to Seller's account until the callback verification has been completed and documented.
SECTION 5: COMMONWEALTH NATIONAL TITLE — EARNEST MONEY DEPOSIT ESCROW ACCOUNT (SOURCE OF RELEASE FUNDS)
The following are the account details for the escrow account maintained by Commonwealth National Title for the Earnest Money Deposit escrow, from which the Aggregate Earnest Money Deposits will be disbursed to Seller upon the Closing:
Current Balance (as of June 5, 2024): Fifty-Five Million Dollars ($55,000,000) in principal, plus accrued interest. The precise amount of accrued interest as of the Closing Date is to be confirmed by Commonwealth National Title on June 6, 2024.
Interest Treatment: In accordance with Section 3(c) of the Earnest Money Escrow Agreement, all interest earned on the Aggregate Earnest Money Deposits during the escrow period is credited to Buyer. Accordingly, the accrued interest amount shall not be included in the wire transfer to Seller but shall instead be wire-transferred separately to Buyer's account designated for receipt of escrow interest, as set forth in Section 6 below. Commonwealth National Title shall provide a statement of accrued interest to Calderwood & Harkness LLP and Blackridge Hayes LLP promptly following the Closing.
SECTION 6: BUYER'S WIRE INSTRUCTIONS (FOR INTEREST ON EARNEST MONEY DEPOSITS)
The following wire instructions have been provided by Buyer for receipt of accrued interest on the Aggregate Earnest Money Deposits:
Commonwealth National Title shall wire the accrued interest amount to Buyer's account designated above promptly following the release of the Aggregate Earnest Money Deposits to Seller on the Closing Date, or as soon thereafter as practicable following the determination of the final interest amount. The interest wire is to be initiated separately from the principal release wire to Seller and shall be treated as a distinct wire transfer for tracking and confirmation purposes.
SECTION 7: BUYER'S WIRE INSTRUCTIONS FOR INDEMNITY ESCROW FUNDING (SOURCE)
Buyer will fund the Indemnity Escrow Amount of Sixteen Million Five Hundred Thousand Dollars ($16,500,000) from its operating and revolving credit account at Aldgate National Bank, N.A. as part of the aggregate closing funds flow on the Closing Date. The Indemnity Escrow funding amount is included in the approximately Four Hundred Eighty-Eight Million Dollars ($488,000,000) of cash equity to be drawn by Buyer on the Closing Date under Fairwater's Seven Hundred Fifty Million Dollar ($750,000,000) unsecured revolving credit facility with Aldgate National Bank, N.A. as administrative agent and lead arranger (the "Revolver"), dated as of August 14, 2022, bearing interest at an applicable margin of SOFR plus 130 basis points (the "Applicable Rate").
The Indemnity Escrow funding wire is to be sent by Buyer (or by Aldgate National Bank, N.A. on behalf of Buyer, as directed) directly to the Commonwealth National Title Indemnity Escrow account described in Section 3.2 above, in accordance with the wire instructions set forth therein. The Indemnity Escrow funding wire should reference "Fairwater REIT / GMP Fund III Indemnity Escrow — Matter No. 1036-00004" and should be initiated in sufficient time to permit same-day settlement no later than the wire cutoff time specified in Section 8.3 below.
For the avoidance of doubt, the Indemnity Escrow funding wire is a component of the aggregate closing funds to be delivered by Buyer on the Closing Date and must be confirmed as received by Commonwealth National Title prior to the release of any other closing funds, including the Aggregate Earnest Money Deposits.
SECTION 8: CONFIRMATION AND CALLBACK PROCEDURES
8.1 Verification Protocol
All wire instructions set forth in this document, including the account numbers, routing numbers, beneficiary names, and bank details, must be independently verified by telephone callback prior to the initiation of any wire transfer. Under no circumstances shall any wire transfer be initiated solely in reliance on written or emailed instructions without completion of the telephone verification protocol described herein.
The following callback contacts have been designated by the respective parties:
Commonwealth National Title Insurance Company:
• Kenneth Stanhope, Senior Vice President: (404) [phone]
• Virginia Moorehead, Assistant Vice President: (404) [phone]
Seller — Greystone Meridian Capital LLC (as General Partner of Seller):
• Victor Lansdell, Co-Founder & Managing Partner: (404) [phone]
Buyer — Fairwater Real Estate Investment Trust:
• Patricia Sung-Calloway, Chief Financial Officer: (410) [phone]
Each party initiating a wire transfer in connection with the Closing is responsible for completing the callback verification with the receiving party's designated callback contact prior to wire initiation. The person completing the callback shall document the date, time, name of the person contacted, and confirmation of the wire instructions in the closing checklist and shall promptly notify Calderwood & Harkness LLP and Blackridge Hayes LLP of the completion of each callback.
In the event that any party becomes aware of any change, discrepancy, or suspected compromise of wire instructions at any time prior to or during the Closing, such party shall immediately notify Calderwood & Harkness LLP (Douglas Fairchild, Grace Nakamura, or Rafael Dominguez) and Blackridge Hayes LLP (Nathaniel Pryce or Thomas Keating) by telephone, and all wire transfers shall be suspended until the discrepancy has been investigated and resolved.
8.2 Confirmation of Receipt
Commonwealth National Title Insurance Company is directed to provide written confirmation (via email) of each of the following events promptly upon occurrence:
(a) Receipt of Indemnity Escrow Funding: Confirmation of receipt of the $16,500,000 Indemnity Escrow funding wire from Buyer into the segregated Indemnity Escrow account described in Section 3.2.
(b) Initiation of Earnest Money Deposit Release: Confirmation of the initiation of the $55,000,000 Earnest Money Deposit release wire to Seller's designated account described in Section 4.
(c) Wire Settlement Confirmation: Confirmation of the completion and settlement of each wire transfer initiated in connection with these wire transfer instructions, including the Fedwire reference number and time of settlement for each wire.
All confirmations described above shall be sent by email to the following individuals:
Calderwood & Harkness LLP (Buyer's Counsel):
• Douglas Fairchild, Responsible Partner — dfairchild@calderwoodharkness.com
• Grace Nakamura, Lead Associate — gnakamura@calderwoodharkness.com
• Rafael Dominguez, Working Associate — rdominguez@calderwoodharkness.com
Blackridge Hayes LLP (Seller's Counsel):
• Nathaniel Pryce, Partner — npryce@blackridgehayes.com
• Thomas Keating, Senior Associate — tkeating@blackridgehayes.com
Fairwater Real Estate Investment Trust (Buyer):
• Marcus Devereaux, EVP, Acquisitions — mdevereaux@fairwaterreit.com
• Patricia Sung-Calloway, Chief Financial Officer — psungcalloway@fairwaterreit.com
• David Elgin Park, SVP, Capital Markets — depark@fairwaterreit.com
• Camille Oduya, VP, Transactions — coduya@fairwaterreit.com
Greystone Meridian Capital LLC (on behalf of Seller):
• Victor Lansdell, Co-Founder & Managing Partner — vlansdell@greystonemeridian.com
• Elise Rathborne, Chief Financial Officer — erathborne@greystonemeridian.com
8.3 Wire Cutoff
All wires to be initiated in connection with the Closing on the Closing Date must be initiated no later than 2:00 PM Eastern Time on June 6, 2024, in order to ensure same-day settlement via the Federal Reserve's Fedwire Funds Service. Any wire initiated after 2:00 PM Eastern Time may not settle on the Closing Date, and the parties acknowledge that same-day settlement is a condition to the consummation of the Closing.
In the event that any wire transfer is rejected, returned, or otherwise fails to settle on the Closing Date, Commonwealth National Title shall immediately notify Calderwood & Harkness LLP (Grace Nakamura or Rafael Dominguez) and Blackridge Hayes LLP (Thomas Keating) by telephone and email, and Commonwealth National Title shall take all steps reasonably necessary to re-initiate such wire transfer as soon as practicable, subject to the verification and callback procedures described in Section 8.1 above.
SECTION 9: CROSS-REFERENCE TO FUNDS FLOW MEMORANDUM
These wire transfer instructions are a component of the comprehensive Funds Flow Memorandum prepared by Calderwood & Harkness LLP (Matter No. 1036-00004), dated June 5, 2024, and updated as of the Closing Date (the "Funds Flow Memorandum"), which sets forth the complete closing day fund flows for the Acquisition. The Funds Flow Memorandum has been circulated to and approved by Buyer, Seller, Calderwood & Harkness LLP, Blackridge Hayes LLP, Commonwealth National Title, and the respective lenders. In the event of any conflict between these wire transfer instructions and the Funds Flow Memorandum, the Funds Flow Memorandum shall control with respect to the aggregate amounts and the allocation of closing proceeds, and these wire transfer instructions shall control with respect to the specific wire transfer account details and callback procedures for the escrow-related fund flows described herein.
For reference, the total closing day fund flows include the following principal components:
The foregoing summary is provided for informational purposes and convenience of reference only. The complete and definitive schedule of closing fund flows is set forth in the Funds Flow Memorandum.
SECTION 10: REPRESENTATIONS AND ACKNOWLEDGMENTS
Commonwealth National Title Insurance Company hereby acknowledges receipt of these Wire Transfer Instructions and confirms the following:
(a) Commonwealth National Title confirms that, as of the date hereof, it holds Fifty-Five Million Dollars ($55,000,000) in principal in the Earnest Money Deposit escrow account described in Section 5 above, together with accrued interest thereon, and that such funds are available for release in accordance with the terms of the Earnest Money Escrow Agreement and these Wire Transfer Instructions.
(b) Commonwealth National Title confirms that the account details set forth in Section 3.2 (Indemnity Escrow Receiving Account) and Section 5 (Earnest Money Deposit Escrow Account) are accurate and complete, subject to the confirmation of the ABA routing numbers and account numbers as noted herein.
(c) Commonwealth National Title agrees to act in accordance with these Wire Transfer Instructions upon receipt of joint written authorization from both Buyer and Seller (or their respective counsel, acting on their behalf), confirming that all conditions precedent to the Closing under the PSA have been satisfied or waived. The form of joint release instruction for the Earnest Money Deposit is attached hereto as Exhibit A.
(d) Commonwealth National Title agrees to provide the confirmation of receipt of the Indemnity Escrow funding in the form attached hereto as Exhibit B promptly upon receipt of the $16,500,000 Indemnity Escrow funding wire.
(e) Commonwealth National Title acknowledges its obligations under the Escrow Agreements to maintain the escrow funds in segregated accounts, separate from its operating funds, and to invest such funds as directed by the parties in accordance with the terms of the respective Escrow Agreements.
Each of the parties hereto represents and warrants that the person executing these Wire Transfer Instructions on behalf of such party has been duly authorized to do so and that these Wire Transfer Instructions constitute the valid and binding obligation of such party, enforceable in accordance with their terms.
SIGNATURE BLOCKS
IN WITNESS WHEREOF, each of the undersigned has executed these Wire Transfer Instructions as of the date first written above.
BUYER:
FAIRWATER REAL ESTATE INVESTMENT TRUST
By: ________
Name: Marcus Devereaux
Title: Executive Vice President, Acquisitions
Date: June 6, 2024
SELLER:
GREYSTONE MERIDIAN PARTNERS FUND III, L.P.
By: Greystone Meridian Capital LLC,
its General Partner
By: ________
Name: Victor Lansdell
Title: Co-Founder & Managing Partner
Date: June 6, 2024
ACKNOWLEDGED AND AGREED — ESCROW AGENT:
COMMONWEALTH NATIONAL TITLE INSURANCE COMPANY
By: ________
Name: Kenneth Stanhope
Title: Senior Vice President
Date: June 6, 2024
BUYER'S COUNSEL:
CALDERWOOD & HARKNESS LLP
By: ________
Name: Douglas Fairchild
Title: Partner
Date: June 6, 2024
SELLER'S COUNSEL:
BLACKRIDGE HAYES LLP
By: ________
Name: Nathaniel Pryce
Title: Partner
Date: June 6, 2024
EXHIBIT A
FORM OF JOINT RELEASE INSTRUCTION (Earnest Money Deposit)
June 6, 2024
VIA EMAIL AND HAND DELIVERY
Commonwealth National Title Insurance Company 191 Peachtree Street NE, Suite 800 Atlanta, Georgia 30303
Attention: Kenneth Stanhope, Senior Vice President
Re: Joint Release Instruction — Earnest Money Deposit Escrow Calderwood & Harkness LLP Matter No. 1036-00004 Escrow Agreement — Earnest Money Deposit, dated March 1, 2024
Dear Mr. Stanhope:
Reference is made to that certain Escrow Agreement — Earnest Money Deposit, dated as of March 1, 2024 (the "Earnest Money Escrow Agreement"), by and among Fairwater Real Estate Investment Trust, a Maryland real estate investment trust ("Buyer"), Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership ("Seller"), and Commonwealth National Title Insurance Company ("Escrow Agent"), pursuant to which Escrow Agent holds the aggregate sum of Fifty-Five Million Dollars ($55,000,000) (exclusive of accrued interest) as Earnest Money Deposits (as defined in the Earnest Money Escrow Agreement) in connection with the acquisition by Buyer of 100% of the membership interests in fourteen (14) property-owning Delaware limited liability companies from Seller, pursuant to that certain Purchase and Sale Agreement, dated as of February 28, 2024, as amended (the "PSA").
By this Joint Release Instruction, Buyer and Seller hereby jointly and irrevocably direct Escrow Agent to release the entire Aggregate Earnest Money Deposit of $55,000,000, exclusive of accrued interest, from the Earnest Money Deposit escrow account and to wire transfer such amount to Seller's designated account in accordance with the wire instructions set forth in Section 4 of the Wire Transfer Instructions dated June 6, 2024, a copy of which has been delivered to Escrow Agent.
Each of the undersigned hereby confirms and represents as follows:
1. All conditions precedent to the Closing under the PSA have been satisfied or waived in writing by the applicable party, and the Closing is authorized to proceed on the date hereof.
2. No event of default has occurred under the PSA that would entitle either party to terminate the PSA or to retain the Earnest Money Deposits.
3. Each of the undersigned has been duly authorized to execute and deliver this Joint Release Instruction on behalf of the party on whose behalf such person is signing, and this Joint Release Instruction constitutes the valid and binding direction of each such party to Escrow Agent.
4. Accrued interest on the Aggregate Earnest Money Deposits is to be wire-transferred separately to Buyer in accordance with Section 6 of the Wire Transfer Instructions.
Escrow Agent is hereby authorized and directed to act in reliance upon this Joint Release Instruction without further inquiry or investigation.
[Remainder of page intentionally left blank; signature page follows.]
SIGNATURE PAGE TO JOINT RELEASE INSTRUCTION (Earnest Money Deposit)
BUYER:
FAIRWATER REAL ESTATE INVESTMENT TRUST
By: ________
Name: Marcus Devereaux
Title: Executive Vice President, Acquisitions
Date: June 6, 2024
SELLER:
GREYSTONE MERIDIAN PARTNERS FUND III, L.P.
By: Greystone Meridian Capital LLC,
its General Partner
By: ________
Name: Victor Lansdell
Title: Co-Founder & Managing Partner
Date: June 6, 2024
EXHIBIT B
FORM OF INDEMNITY ESCROW FUNDING CONFIRMATION
June 6, 2024
VIA EMAIL
Calderwood & Harkness LLP 1700 K Street NW, Suite 900 Washington, DC 20006
Attention: Douglas Fairchild, Partner; Grace Nakamura, Lead Associate; Rafael Dominguez, Working Associate
Blackridge Hayes LLP
Attention: Nathaniel Pryce, Partner; Thomas Keating, Senior Associate
Fairwater Real Estate Investment Trust
Attention: Marcus Devereaux, EVP, Acquisitions; Patricia Sung-Calloway, CFO
Greystone Meridian Capital LLC
Attention: Victor Lansdell, Co-Founder & Managing Partner; Elise Rathborne, CFO
Re: Confirmation of Receipt — Indemnity Escrow Funding Calderwood & Harkness LLP Matter No. 1036-00004 Escrow Agreement — Indemnity Escrow, dated June 6, 2024
Ladies and Gentlemen:
Commonwealth National Title Insurance Company ("Escrow Agent"), in its capacity as escrow agent under that certain Escrow Agreement — Indemnity Escrow, dated as of June 6, 2024 (the "Indemnity Escrow Agreement"), by and among Fairwater Real Estate Investment Trust ("Buyer"), Greystone Meridian Partners Fund III, L.P. ("Seller"), and Escrow Agent, hereby confirms the following:
1. Receipt of Funds. Escrow Agent confirms that it has received, via Fedwire transfer on June 6, 2024, the sum of Sixteen Million Five Hundred Thousand Dollars ($16,500,000) (the "Indemnity Escrow Amount") from Buyer (or on behalf of Buyer) into the segregated Indemnity Escrow account designated for such purpose.
Fedwire Reference Number: ______ Time of Receipt: ______ (Eastern Time)
2. Segregation of Funds. Escrow Agent confirms that the Indemnity Escrow Amount has been deposited into a segregated, interest-bearing escrow account established exclusively for the purpose of holding the Indemnity Escrow Fund in accordance with the Indemnity Escrow Agreement. The Indemnity Escrow Amount is maintained separately from Escrow Agent's operating funds and from any other escrow accounts maintained by Escrow Agent.