SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENTS
EXECUTED COMPILATION
34 of 38 Required SNDAs
FAIRWATER REAL ESTATE INVESTMENT TRUST
Acquisition of 14-Property Sun Belt Logistics & Office Portfolio
from
GREYSTONE MERIDIAN PARTNERS FUND III, L.P.
Purchase Price: $1,100,000,000
Closing Date: June 6, 2024
Prepared by:
Calderwood & Harkness LLP 450 Park Avenue, 28th Floor New York, New York 10022
Matter Number: 1036-00004
This binder contains thirty-four (34) of the thirty-eight (38) required Subordination, Non-Disturbance and Attornment Agreements ("SNDAs") executed by Major Tenants (as defined in the Purchase and Sale Agreement) on or before the closing date of June 6, 2024. The remaining four (4) SNDAs are subject to a post-closing delivery carve-out pursuant to the SNDA Post-Closing Carve-Out Side Letter dated as of June 6, 2024, between Seller and Buyer, with a thirty (30)-day post-closing delivery deadline of July 6, 2024, and a Two Hundred Thousand Dollars ($200,000) holdback from Seller proceeds pending delivery. Actual post-closing delivery of all four (4) outstanding SNDAs was completed on July 2, 2024, four (4) days in advance of the post-closing delivery deadline. The holdback was released to Seller on July 3, 2024.
CONFIDENTIAL — ATTORNEY WORK PRODUCT / PRIVILEGED
This compilation and all materials contained herein are protected by the attorney-client privilege and the work product doctrine. Distribution is restricted to authorized representatives of Fairwater Real Estate Investment Trust and its counsel. Any unauthorized review, use, disclosure, or distribution is strictly prohibited.
INTRODUCTORY NOTE. This compilation of Subordination, Non-Disturbance and Attornment Agreements (each, an "SNDA" and collectively, the "SNDAs") has been assembled by Calderwood & Harkness LLP in connection with the closing of the acquisition (the "Acquisition") of a fourteen (14)-property Sun Belt logistics and office portfolio (the "Portfolio") by Fairwater Real Estate Investment Trust, a Maryland real estate investment trust ("Buyer" or "Fairwater"), from Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership ("Seller" or "Greystone Meridian"), pursuant 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, the "PSA"), by and between Seller and Buyer.
Under Section 7.2(d) of the PSA, as a condition to Buyer's obligation to consummate the Acquisition, Seller was required to deliver, or cause to be delivered, a duly executed SNDA from each "Major Tenant" across the Portfolio. The PSA defined "Major Tenant" as any tenant whose annual base rent ("ABR") equals or exceeds One Million Five Hundred Thousand Dollars ($1,500,000) per annum as of the date of the PSA. Based on the rent rolls delivered by Seller as of the effective date of the PSA, thirty-eight (38) tenants qualified as Major Tenants across the fourteen (14) properties comprising the Portfolio.
Of these thirty-eight (38) required SNDAs, thirty-four (34) were fully executed by all applicable parties and delivered to Buyer on or before the June 6, 2024 closing date, representing approximately eighty-nine and one-half percent (89.5%) of the total required SNDAs and approximately ninety-two percent (92%) of aggregate Major Tenant ABR. Four (4) SNDAs remained outstanding as of the closing date. Delivery of these four (4) outstanding SNDAs was addressed through the SNDA Post-Closing Carve-Out Side Letter dated as of June 6, 2024 (the "Side Letter"), which was executed concurrently with the closing of the Acquisition, and which is more fully described in the Schedule of Outstanding SNDAs set forth below.
All thirty-four (34) SNDAs contained in this compilation were executed in substantially the form of the SNDA attached as Exhibit F to the PSA (the "Form SNDA"). Each SNDA is a three-party agreement among: (a) the applicable Major Tenant; (b) the applicable lender holding a mortgage, deed of trust, or deed to secure debt encumbering the property at which such Major Tenant is located (being Pinnacle Federal Bank, N.A., Veltrano Capital Lending Corp., or Sycamore Life Insurance Company, as the case may be); and (c) the applicable target entity (each, a "Target Entity"), which is the Delaware limited liability company that directly owns the applicable property, with Fairwater Real Estate Investment Trust acknowledged as the successor member of each Target Entity following consummation of the Acquisition.
The SNDAs are organized in this compilation by Tab Number, sequentially from Tab 1 through Tab 34, generally ordered by lender and then by property. Each Tab contains the fully executed original SNDA (or a conformed copy thereof, as noted), together with all exhibits, schedules, notarizations, and acknowledgments appended thereto.
MASTER INDEX TABLE — 34 EXECUTED SNDAs
The following table sets forth a summary index of the thirty-four (34) Subordination, Non-Disturbance and Attornment Agreements contained in this compilation. All information is as of the closing date of June 6, 2024, unless otherwise indicated.
SECTION A: PINNACLE FEDERAL BANK, N.A. — LOGISTICS PROPERTIES
Master Loan Agreement dated September 15, 2020
SECTION B: VELTRANO CAPITAL LENDING CORP. — OFFICE PROPERTIES
Loan Agreement dated February 1, 2021
SECTION C: SYCAMORE LIFE INSURANCE COMPANY — LOGISTICS PROPERTIES
Note Purchase Agreement dated November 22, 2019
TOP 5 MAJOR TENANTS BY ABR (All Included Among the 34 Executed SNDAs):
SCHEDULE OF OUTSTANDING SNDAs (4 of 38 — NOT INCLUDED IN THIS COMPILATION)
The following table identifies the four (4) Major Tenants whose SNDAs were outstanding as of the June 6, 2024 closing date and were therefore not included in this compilation. Delivery of these SNDAs was governed by the SNDA Post-Closing Carve-Out Side Letter dated as of June 6, 2024 (the "Side Letter"), between Seller and Buyer.
Aggregate ABR of Outstanding SNDAs: $6,255,000
Status: Pursuant to the Side Letter, Two Hundred Thousand Dollars ($200,000) of Seller's closing proceeds were deposited into escrow with the Title Company (Granite Harbor Indemnity Co., National Commercial Services Division) as a holdback pending delivery of the four (4) outstanding SNDAs. The Side Letter required delivery of all four (4) outstanding SNDAs within thirty (30) days following the closing date (i.e., on or before July 6, 2024). All four (4) outstanding SNDAs were fully executed and delivered to Buyer on July 2, 2024, four (4) days in advance of the post-closing delivery deadline. The holdback was released in full to Seller on July 3, 2024, upon written confirmation from Buyer's counsel that all four (4) SNDAs had been received and were in conformity with the Form SNDA. Copies of the four (4) post-closing SNDAs are maintained in a separate supplemental binder designated "SNDA Compilation — Post-Closing Supplement (4 of 38)."
TAB 1
SNDA NO. 1
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
Dated: May 29, 2024
Among:
THORNTON-WHITAKER PHARMACEUTICALS CORP., a Delaware corporation ("Tenant")
PINNACLE FEDERAL BANK, N.A., a national banking association ("Lender")
and
GMP FAIRFIELD I LLC, a Delaware limited liability company ("Landlord")
(with Fairwater Real Estate Investment Trust, a Maryland real estate investment trust, acknowledged as successor member)
Property: Fairfield Logistics Center I 4200 Fairfield Industrial Boulevard Fairburn, Georgia 30213
Lease: Lease Agreement dated March 15, 2019, between GMP Fairfield I LLC, as Landlord, and Thornton-Whitaker Pharmaceuticals Corp., as Tenant, as amended by that certain First Amendment to Lease dated September 1, 2021
Loan: Master Loan Agreement dated September 15, 2020, by and between GMP Fairfield I LLC (as Borrower) and Pinnacle Federal Bank, N.A. (as Lender) Loan 1-A
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this "Agreement") is made and entered into as of May 29, 2024, by and among:
(1) THORNTON-WHITAKER PHARMACEUTICALS CORP., a Delaware corporation ("Tenant");
(2) PINNACLE FEDERAL BANK, N.A., a national banking association ("Lender"); and
(3) GMP FAIRFIELD I LLC, a Delaware limited liability company ("Landlord"), with acknowledgment by FAIRWATER REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust ("Successor Member"), as the successor member of Landlord.
RECITALS. A. Lender has made a loan (the "Loan") to Landlord pursuant to that certain Master Loan Agreement dated September 15, 2020 (the "Loan Agreement"), by and between Landlord, as borrower, and Lender, as lender (the Loan being designated therein as Loan 1-A). The Loan is secured by, among other things, that certain Deed to Secure Debt, Security Agreement and Assignment of Leases and Rents dated September 15, 2020 (the "Mortgage"), executed by Landlord in favor of Lender, recorded in the Office of the Clerk of Superior Court of Fulton County, Georgia, in Deed Book 64218, Page 0412, encumbering that certain real property commonly known as Fairfield Logistics Center I, located at 4200 Fairfield Industrial Boulevard, Fairburn, Georgia 30213, and more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Property"). The Loan Agreement, the Mortgage, and all other documents, instruments, and agreements executed and delivered in connection with the Loan are collectively referred to herein as the "Loan Documents."
B. Landlord, as landlord, and Tenant, as tenant, are parties to that certain Lease Agreement dated March 15, 2019 (as amended by that certain First Amendment to Lease dated September 1, 2021, and as may be further amended, modified, supplemented, or restated from time to time, the "Lease"), pursuant to which Landlord has leased to Tenant approximately 412,000 rentable square feet (the "Premises") in the Property.
C. Landlord has undergone a change of control, pursuant to which Successor Member has acquired one hundred percent (100%) of the membership interests in Landlord. Lender has consented to such change of control pursuant to that certain Consent to Transfer and Change of Control dated June 4, 2024, delivered by Lender to Landlord and Successor Member. The parties acknowledge that such change of control does not affect the continuing validity and enforceability of the Lease, the Loan Documents, or any of the obligations arising thereunder.
D. Lender and Tenant desire to confirm their respective rights and obligations with respect to the Lease and the Mortgage, and in particular, Lender desires to grant non-disturbance protection to Tenant, and Tenant desires to subordinate the Lease to the Mortgage and to agree to attorn to any successor landlord, all on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I — SUBORDINATION
Section 1.1. Subordination. Tenant hereby covenants and agrees that the Lease and all of Tenant's right, title, and interest in and to the Premises, the Property, and the Lease, including, without limitation, all of Tenant's options, rights of first refusal, rights of first offer, expansion rights, and any other rights or privileges granted to Tenant under the Lease, are and shall at all times be subject and subordinate to the Mortgage, the Loan Agreement, and all other Loan Documents, and to all renewals, modifications, consolidations, replacements, amendments, supplements, restatements, and extensions thereof and to all sums secured thereby and advances made thereunder. This subordination shall be self-operative and no further instrument of subordination shall be required to effectuate it. Nevertheless, Tenant shall, upon demand, execute, acknowledge, and deliver to Lender such further instruments confirming such subordination as Lender may reasonably request.
Section 1.2. Condition. Notwithstanding the foregoing, the subordination set forth in Section 1.1 is expressly subject to and conditioned upon the non-disturbance provisions set forth in Article II of this Agreement. In the event of any conflict between the provisions of this Article I and the provisions of Article II, the provisions of Article II shall control.
ARTICLE II — NON-DISTURBANCE
Section 2.1. Non-Disturbance. So long as Tenant is not in default under the Lease beyond any applicable notice and cure periods expressly set forth therein (an "Event of Default"), Lender agrees for itself and its successors and assigns that:
(a) Tenant's right to possession and quiet enjoyment of the Premises, and all other rights of Tenant under the Lease, shall not be terminated, diminished, disturbed, or interfered with by Lender in the exercise of any of its rights under the Mortgage or the other Loan Documents, or in connection with any foreclosure, sale under power, or other enforcement of the Mortgage, or any transfer in lieu of foreclosure (each, a "Foreclosure Event");
(b) The Lease shall not be terminated, extinguished, cut off, or modified by reason of any Foreclosure Event, except as may be otherwise provided in accordance with the express terms of the Lease;
(c) Tenant shall not be joined as a party defendant in any action or proceeding to foreclose the Mortgage or to enforce any rights of Lender under the Loan Documents (except to the extent required by applicable law to perfect service of process or complete a foreclosure action, and in such case, Lender shall not seek any affirmative relief against Tenant); and
(d) The Lease and all of Tenant's rights thereunder shall continue in full force and effect following any Foreclosure Event, subject to the terms of this Agreement.
Section 2.2. Continuation of Lease. If, as a result of any Foreclosure Event, Lender or any other party (a "Successor Landlord") shall become the owner of the Property, the Lease shall continue in full force and effect as a direct lease between the Successor Landlord and Tenant, upon all of the terms, covenants, and conditions set forth in the Lease, and Tenant shall be bound to the Successor Landlord under all of the terms, covenants, and conditions of the Lease for the balance of the term of the Lease (including any renewal or extension periods that have been or are hereafter properly exercised in accordance with the Lease), with the same force and effect as if such Successor Landlord were the original landlord under the Lease.
ARTICLE III — ATTORNMENT
Section 3.1. Attornment. If Lender or any Successor Landlord shall acquire title to the Property through any Foreclosure Event or by any other means, Tenant shall, upon request by such Successor Landlord, attorn to and recognize such Successor Landlord as the landlord under the Lease, and Tenant shall promptly execute and deliver any instrument that such Successor Landlord may reasonably request to evidence such attornment. Upon such attornment, the Lease shall continue in full force and effect as a direct lease between the Successor Landlord and Tenant upon all of the terms, covenants, and conditions of the Lease, except as otherwise expressly provided in this Article III.
Section 3.2. Limitations on Successor Landlord's Liability. Notwithstanding anything to the contrary contained in this Agreement or the Lease, upon any Successor Landlord's acquisition of title to the Property, such Successor Landlord shall be bound by all of the obligations of the landlord under the Lease arising from and after the date of such acquisition, but such Successor Landlord shall not be:
(a) liable for any act, omission, default, misrepresentation, or breach of warranty of any prior landlord under the Lease (including, without limitation, Landlord), to the extent such act, omission, default, misrepresentation, or breach occurred prior to the date on which such Successor Landlord acquired title to the Property;
(b) subject to any offsets, defenses, claims, or counterclaims that Tenant may have against any prior landlord (including, without limitation, Landlord) arising out of events or circumstances occurring prior to the date on which such Successor Landlord acquired title to the Property;
(c) bound by any rent or additional rent that Tenant may have prepaid to any prior landlord (including, without limitation, Landlord) for more than one (1) month in advance of the date on which such Successor Landlord acquired title to the Property;
(d) liable to Tenant for any security deposit or letter of credit delivered by Tenant to any prior landlord (including, without limitation, Landlord) unless such security deposit or letter of credit has been actually received by such Successor Landlord (or, in the case of a letter of credit, has been transferred to such Successor Landlord);
(e) bound by any amendment, modification, or termination of the Lease made without Lender's prior written consent, to the extent such consent is required under the Loan Documents;
(f) liable for any obligation of the landlord under the Lease that is personal in nature to the original landlord or any prior landlord, including, without limitation, any obligation to construct, improve, or renovate the Property or the Premises that was required to have been performed prior to such Successor Landlord's acquisition of title, except to the extent such obligation is a continuing obligation under the Lease and remains unperformed; or
(g) liable for consequential, special, punitive, or exemplary damages.
Section 3.3. Confirmation of Attornment. The provisions of this Article III shall be self-operative and effective without the execution of any further instruments on the part of any party hereto. However, Tenant agrees to execute and deliver to any Successor Landlord, within fifteen (15) days following such Successor Landlord's written request therefor, a written confirmation of Tenant's attornment to such Successor Landlord, in form and substance reasonably satisfactory to such Successor Landlord and Tenant.
ARTICLE IV — NOTICES
Section 4.1. Notices to Lender. Tenant hereby agrees that, simultaneously with the giving of any written notice of default to Landlord under the Lease, Tenant shall send a copy of such notice to Lender at the following address (or such other address as Lender may designate by written notice to Tenant):
Pinnacle Federal Bank, N.A. Real Estate Finance Division 800 Connecticut Avenue NW, Suite 1200 Washington, D.C. 20006
Attention: Bradley Carston, Senior Vice President
Email: bcarston@pinnaclefederal.com
With a copy to:
Whitfield & Archer LLP 1700 K Street NW, Suite 900 Washington, D.C. 20006
Attention: Sandra Whitfield, Esq.
Email: swhitfield@whitfieldarcherlaw.com
Section 4.2. Lender's Right to Cure. Lender shall have the right, but not the obligation, to cure any default of Landlord under the Lease within a reasonable time after Lender's receipt of notice of such default from Tenant, provided that:
(a) Lender shall have a period of thirty (30) days following its receipt of Tenant's notice (in addition to any cure period afforded to Landlord under the Lease) within which to cure any monetary default of Landlord;
(b) Lender shall have a period of thirty (30) days following its receipt of Tenant's notice (in addition to any cure period afforded to Landlord under the Lease) within which to commence the cure of any non-monetary default of Landlord, provided that if such non-monetary default is of a nature that it cannot reasonably be cured within such thirty (30)-day period, Lender shall have such additional time as may be reasonably necessary to complete such cure, so long as Lender has commenced and is diligently pursuing such cure; and
(c) if Lender must obtain possession of the Property in order to cure any non-monetary default of Landlord, Lender shall have such additional time as may be reasonably necessary to obtain possession of the Property (including, without limitation, through the commencement and completion of foreclosure proceedings) before commencing to cure such default, so long as Lender is diligently pursuing such efforts.
Section 4.3. No Termination Without Lender Notice. Notwithstanding anything to the contrary contained in the Lease, Tenant shall not terminate the Lease or exercise any remedies that would have the effect of terminating the Lease by reason of any default by Landlord under the Lease unless and until: (a) Tenant has given Lender written notice of such default as provided in Section 4.1 hereof; and (b) the applicable cure period described in Section 4.2 hereof has expired without such default having been cured.
Section 4.4. Manner of Notices. All notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given and received: (a) on the date of delivery, if delivered personally; (b) on the first (1st) business day after deposit with a nationally recognized overnight courier service, charges prepaid; or (c) on the third (3rd) business day after deposit in the United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the applicable party at the address set forth herein or at such other address as such party may designate in writing to the other parties.
ARTICLE V — MISCELLANEOUS
Section 5.1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to the principles of conflicts of law thereof.
Section 5.2. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors, and assigns. Without limiting the generality of the foregoing, this Agreement shall inure to the benefit of and be binding upon any Successor Landlord.
Section 5.3. Entire Agreement. This Agreement, together with the Lease and the Loan Documents (to the extent applicable), constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations, representations, agreements, and understandings among the parties, whether written or oral, relating to the subject matter hereof.
Section 5.4. Amendments. This Agreement may not be amended, modified, or supplemented except by a written instrument signed by all parties hereto.
Section 5.5. Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.
Section 5.6. Counterparts; Electronic Signatures. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. The parties agree that the electronic transmission of signatures (including by facsimile, portable document format (PDF), or any electronic signature complying with the U.S. federal ESIGN Act of 2000 or the Uniform Electronic Transactions Act) shall constitute original signatures for all purposes.
Section 5.7. Headings. The headings and captions used in this Agreement are for convenience of reference only and shall not be construed in interpreting the provisions of this Agreement.
Section 5.8. Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom enforcement of such waiver is sought. No waiver of any provision of this Agreement shall be deemed a waiver of any other provision, whether or not similar, and no waiver shall constitute a continuing waiver.
Section 5.9. Recording. This Agreement may be recorded in the land records of the county and state where the Property is located, at the expense of the party requesting such recording.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Subordination, Non-Disturbance and Attornment Agreement to be executed and delivered as of the date first written above.
TENANT:
THORNTON-WHITAKER PHARMACEUTICALS CORP., a Delaware corporation
By: ________
Name: James R. Thornton III
Title: Executive Vice President and General Counsel
Date: May 29, 2024
LENDER:
PINNACLE FEDERAL BANK, N.A., a national banking association
By: ________
Name: Bradley Carston
Title: Senior Vice President
Date: May 29, 2024
LANDLORD:
GMP FAIRFIELD I LLC, a Delaware limited liability company
By: Greystone Meridian Capital LLC, its Manager
By: ________
Name: Victor Lansdell
Title: Managing Partner
Date: May 29, 2024
Acknowledged and agreed by Successor Member:
FAIRWATER REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust
By: ________
Name: Patricia Langford
Title: Chief Investment Officer
Date: May 29, 2024
NOTARIZATION / ACKNOWLEDGMENT
STATE OF DELAWARE COUNTY OF NEW CASTLE
Before me, a Notary Public in and for said State, on this 29th day of May, 2024, personally appeared James R. Thornton III, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity as Executive Vice President and General Counsel of Thornton-Whitaker Pharmaceuticals Corp., a Delaware corporation, and that by his signature on the instrument, the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
________________________________________
Notary Public My Commission Expires: _____ [NOTARIAL SEAL]
DISTRICT OF COLUMBIA
Before me, a Notary Public in and for said District, on this 29th day of May, 2024, personally appeared Bradley Carston, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity as Senior Vice President of Pinnacle Federal Bank, N.A., a national banking association, and that by his signature on the instrument, the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
________________________________________
Notary Public My Commission Expires: _____ [NOTARIAL SEAL]
STATE OF NEW YORK COUNTY OF NEW YORK
Before me, a Notary Public in and for said State, on this 29th day of May, 2024, personally appeared Victor Lansdell, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his authorized capacity as Managing Partner of Greystone Meridian Capital LLC, the manager of GMP Fairfield I LLC, a Delaware limited liability company, and that by his signature on the instrument, the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
________________________________________
Notary Public My Commission Expires: _____ [NOTARIAL SEAL]
STATE OF MARYLAND COUNTY OF HOWARD
Before me, a Notary Public in and for said State, on this 29th day of May, 2024, personally appeared Patricia Langford, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that she executed the same in her authorized capacity as Chief Investment Officer of Fairwater Real Estate Investment Trust, a Maryland real estate investment trust, and that by her signature on the instrument, the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
________________________________________
Notary Public My Commission Expires: _____ [NOTARIAL SEAL]
EXHIBIT A TO SNDA NO. 1
LEGAL DESCRIPTION OF THE PROPERTY
Fairfield Logistics Center I 4200 Fairfield Industrial Boulevard, Fairburn, Georgia 30213
All that tract or parcel of land lying and being in Land Lot 171 of the 14th District, Fulton County, Georgia, being more particularly described as follows:
BEGINNING at an iron pin set on the southwesterly right-of-way line of Fairfield Industrial Boulevard (having a right-of-way width of 80 feet), said point being located South 42 degrees 18 minutes 32 seconds East, a distance of 1,247.63 feet from the intersection of the southwesterly right-of-way line of Fairfield Industrial Boulevard with the southeasterly right-of-way line of Oakley Industrial Boulevard; THENCE, running along the southwesterly right-of-way line of Fairfield Industrial Boulevard, South 42 degrees 18 minutes 32 seconds East, a distance of 1,186.42 feet to an iron pin found; THENCE, leaving said right-of-way line, South 47 degrees 41 minutes 28 seconds West, a distance of 1,512.37 feet to an iron pin set; THENCE North 42 degrees 18 minutes 32 seconds West, a distance of 1,186.42 feet to an iron pin set; THENCE North 47 degrees 41 minutes 28 seconds East, a distance of 1,512.37 feet to the POINT OF BEGINNING.
Said tract contains 41.22 acres, more or less, and is shown on that certain ALTA/NSPS Land Title Survey prepared by Granger & Associates, Inc., Georgia Registered Land Surveyors, dated August 12, 2020, last revised May 15, 2024, bearing Job No. GA-2020-4471.
TOGETHER WITH all right, title, and interest of Landlord in and to all easements and rights-of-way appurtenant to the above-described property, including, without limitation, that certain Access and Utility Easement Agreement recorded in Deed Book 58721, Page 0184, aforesaid records.
TABS 2 THROUGH 34
SNDAs NO. 2 THROUGH NO. 34
Each of Tabs 2 through 34 contains a fully executed Subordination, Non-Disturbance and Attornment Agreement in the identical structural format as the SNDA set forth in Tab 1 (SNDA No. 1), with the following variable information changed for each respective SNDA:
Variable Elements for Each Tab:
(a) Tab number and SNDA number — sequentially numbered from Tab 2 / SNDA No. 2 through Tab 34 / SNDA No. 34, corresponding to the Master Index Table above.
(b) Tenant name — the specific Major Tenant at the applicable property, as identified in the Master Index Table.
(c) Execution date — each SNDA is dated on or before June 6, 2024, with specific execution dates as set forth in the Master Index Table.
(d) Target Entity / Landlord — the applicable GMP LLC that directly owns the property, as identified in the Master Index Table.
(e) Property name, address, city, state, and zip code — as identified in the Master Index Table.
(f) Applicable Lender and Loan Reference:
(i) Pinnacle Federal Bank, N.A. (Tabs 1–13): Loan reference to that certain Master Loan Agreement dated September 15, 2020, by and between the applicable GMP LLC (as Borrower) and Pinnacle Federal Bank, N.A. (as Lender), with the applicable Loan designation (Loan 1-A through 1-H). Lender signatory: Bradley Carston, Senior Vice President.
(ii) Veltrano Capital Lending Corp. (Tabs 14–26): Loan reference to that certain Loan Agreement dated February 1, 2021, by and between the applicable GMP LLC (as Borrower) and Veltrano Capital Lending Corp. (as Lender), with the applicable Loan designation (Loan 2-A through 2-D). Lender signatory: Denise Alvarado, Managing Director.
(iii) Sycamore Life Insurance Company (Tabs 27–34): Loan reference to that certain Note Purchase Agreement dated November 22, 2019, by and between the applicable GMP LLC (as Borrower) and Sycamore Life Insurance Company (as Lender/Noteholder), with the applicable Loan designation (Loan 3-A or 3-B). Lender signatory: Graham Hilliard, Vice President, Mortgage Investments.
(g) Governing law — varies by property state, as follows:
• Georgia properties (Tabs 1, 2, 3, 14, 15, 16, 17, 27, 28, 29): State of Georgia
• Texas properties (Tabs 4, 5, 6, 7, 8): State of Texas
• Florida properties (Tabs 9, 10, 11, 24, 25, 26): State of Florida
• Tennessee properties (Tabs 12, 13, 21, 22, 23, 30, 31, 32, 33, 34): State of Tennessee
• North Carolina properties (Tabs 18, 19, 20): State of North Carolina
(h) Lease reference — the specific lease date, parties, and any amendments for each Major Tenant, as set forth in the recitals to each SNDA.
(i) Exhibit A — Legal Description — the legal description specific to each property, as prepared by the applicable surveyor and confirmed by the title company.
(j) Security Instrument Reference — the Mortgage, Deed of Trust, or Deed to Secure Debt applicable to each property, which varies by jurisdiction:
• Georgia: Deed to Secure Debt, Security Agreement and Assignment of Leases and Rents
• Texas: Deed of Trust, Security Agreement and Assignment of Leases and Rents
• Florida: Mortgage, Security Agreement and Assignment of Leases and Rents
• Tennessee: Deed of Trust, Security Agreement and Assignment of Leases and Rents
• North Carolina: Deed of Trust, Security Agreement and Assignment of Leases and Rents
(k) Notarization — notary blocks are state-specific for each signatory, reflecting the state in which each party executed the applicable SNDA.
Notable Observations Regarding Multi-Tenant Properties:
Certain properties in the Portfolio are leased to multiple Major Tenants, each of which required a separate SNDA. The following properties have multiple SNDAs included in this compilation:
The remaining four (4) properties are single-tenant facilities with one (1) SNDA each:
Substantive Terms:
All thirty-four (34) SNDAs are in substantially the form of the Form SNDA attached as Exhibit F to the PSA. The substantive articles of each SNDA are identical to those set forth in SNDA No. 1 (Tab 1), including:
• Article I (Subordination): Tenant's agreement that the Lease is subordinate to the applicable Mortgage and Loan Documents, subject to and conditioned upon the non-disturbance provisions of Article II.
• Article II (Non-Disturbance): Lender's agreement that Tenant's right of possession and quiet enjoyment of the Premises shall not be disturbed in connection with any Foreclosure Event, so long as Tenant is not in default under the Lease beyond applicable notice and cure periods.
• Article III (Attornment): Tenant's agreement to attorn to any Successor Landlord, and Successor Landlord's assumption of landlord obligations arising from and after the date of acquisition, with standard limitations on Successor Landlord liability for prior acts or omissions, pre-existing offsets or defenses, security deposits not actually received, and obligations personal to the original landlord.
• Article IV (Notices): Tenant's agreement to provide Lender with copies of all default notices, and Lender's right (but not obligation) to cure landlord defaults within a reasonable period following receipt of notice.
• Article V (Miscellaneous): Standard provisions regarding governing law (state-specific), binding effect on successors and assigns, entire agreement, written amendment requirement, severability, counterparts, electronic signatures, headings, waiver, and recording.
Non-material, tenant-specific or lender-specific modifications to the Form SNDA were made in certain instances, including adjustments to notice addresses, incorporation of tenant-specific lease amendment references, and modifications to Lender cure periods negotiated by individual tenants. All such modifications were reviewed and approved by Calderwood & Harkness LLP as non-material and consistent with the requirements of the PSA.
CLOSING CERTIFICATE CROSS-REFERENCE
The completeness and sufficiency of this SNDA compilation was verified and certified in the Estoppel and SNDA Compliance Certificate (the "Compliance Certificate") delivered by Calderwood & Harkness LLP to Fairwater Real Estate Investment Trust at the closing of the Acquisition on June 6, 2024. The Compliance Certificate confirmed the following:
1. Execution and Delivery Status. Thirty-four (34) of the thirty-eight (38) required Major Tenant SNDAs were fully executed by all applicable parties and delivered to Buyer at or prior to the closing, representing approximately eighty-nine and one-half percent (89.5%) of the total required SNDAs and approximately ninety-two percent (92%) of aggregate Major Tenant ABR across the Portfolio.
2. PSA Closing Condition. The closing condition set forth in Section 7.2(d) of the PSA relating to Major Tenant SNDAs was satisfied by operation of the post-closing carve-out provision contained in the SNDA Post-Closing Carve-Out Side Letter dated as of June 6, 2024, executed concurrently with the closing. The Side Letter provided that Buyer agreed to waive the closing condition with respect to the four (4) outstanding SNDAs, subject to: (a) a holdback of Two Hundred Thousand Dollars ($200,000) from Seller's closing proceeds; (b) Seller's obligation to use commercially reasonable efforts to obtain and deliver the remaining four (4) SNDAs within thirty (30) days following the closing date (i.e., on or before July 6, 2024); and (c) if all four (4) outstanding SNDAs were not delivered within such thirty (30)-day period, the holdback would be released to Buyer as liquidated damages.