PINNACLE FEDERAL BANK, N.A. 600 Travis Street, Suite 4400 Houston, Texas 77002
Telephone: (713) 555-8200 Facsimile: (713) 555-8201
June 4, 2024
VIA ELECTRONIC DELIVERY AND OVERNIGHT COURIER
Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
Attention: Marcus Devereaux, Executive Vice President, Acquisitions
Greystone Meridian Partners Fund III, L.P. 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326
Attention: Victor Lansdell, Managing Partner
With copies to:
Calderwood & Harkness LLP 450 Park Avenue, 28th Floor New York, New York 10022
Attention: Douglas Fairchild, Esq.
Blackridge Hayes LLP 1285 Avenue of the Americas, 34th Floor New York, New York 10019
Attention: Nathaniel Pryce, Esq.
Re: Consent to Change of Control — Master Loan Agreement dated September 15, 2020 (as amended), by and among Pinnacle Federal Bank, N.A. (the "Lender"), and each of GMP Fairfield I LLC, GMP Fairfield II LLC, GMP Westlake LLC, GMP Katy LLC, GMP Alliance LLC, GMP Lakeland LLC, GMP Southport LLC, and GMP Murfreesboro LLC (each, a "Borrower" and collectively, the "Borrowers"); Loans 1-A through 1-H; Aggregate Outstanding Principal Balance: $421,600,000
Ladies and Gentlemen:
Reference is made to that certain Master Loan Agreement dated as of September 15, 2020 (as amended from time to time, the "Loan Agreement"), by and among Pinnacle Federal Bank, N.A., a national banking association organized and existing under the laws of the United States of America (the "Lender"), as lender, and each of GMP Fairfield I LLC, a Delaware limited liability company, GMP Fairfield II LLC, a Delaware limited liability company, GMP Westlake LLC, a Delaware limited liability company, GMP Katy LLC, a Delaware limited liability company, GMP Alliance LLC, a Delaware limited liability company, GMP Lakeland LLC, a Delaware limited liability company, GMP Southport LLC, a Delaware limited liability company, and GMP Murfreesboro LLC, a Delaware limited liability company (each, a "Borrower" and collectively, the "Borrowers"), as borrowers. All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Loan Agreement and the other Loan Documents (as defined below).
This consent letter (this "Consent Letter") is delivered by Lender in response to the consent request described in Section 1.4 below and sets forth the terms and conditions upon which Lender is willing to consent to the Proposed Transfer (as defined below).
1. RECITALS / BACKGROUND
1.1 Reference to Loan Documents
The Loan Agreement governs eight separate loans (designated as Loans 1-A through 1-H) made by Lender to the Borrowers. In connection with the Loan Agreement, each Borrower and certain other parties have executed and delivered to Lender various promissory notes, deeds of trust, mortgages, security deeds (as applicable by jurisdiction), assignments of leases and rents, security agreements, environmental indemnity agreements, guaranties, UCC financing statements, cash management agreements, and other documents and instruments (collectively with the Loan Agreement, and as the same may have been amended, restated, supplemented, or otherwise modified from time to time, the "Loan Documents"). A complete list of the Loan Documents is attached hereto as Exhibit C and incorporated herein by this reference.
Loans 1-A through 1-H secure the following properties (each, a "Property" and collectively, the "Properties"):
(a) Loan 1-A: Fairfield Logistics Center I, located at 4200 Fairfield Industrial Boulevard, Fairburn, Georgia 30213 (Borrower: GMP Fairfield I LLC);
(b) Loan 1-B: Fairfield Logistics Center II, located at 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213 (Borrower: GMP Fairfield II LLC);
(c) Loan 1-C: Westlake Distribution Hub, located at 11500 Westlake Parkway, Houston, Texas 77082 (Borrower: GMP Westlake LLC);
(d) Loan 1-D: Katy Freeway Logistics Park, located at 22600 Katy Freeway, Katy, Texas 77449 (Borrower: GMP Katy LLC);
(e) Loan 1-E: Alliance Commerce Center, located at 2800 Alliance Gateway Boulevard, Fort Worth, Texas 76177 (Borrower: GMP Alliance LLC);
(f) Loan 1-F: Lakeland Crossings Industrial, located at 7100 Drane Field Road, Lakeland, Florida 33811 (Borrower: GMP Lakeland LLC);
(g) Loan 1-G: Southport Logistics Park, located at 3200 Southport Connector Road, Jacksonville, Florida 32218 (Borrower: GMP Southport LLC); and
(h) Loan 1-H: Murfreesboro Distribution Center, located at 1600 Joe B. Jackson Parkway, Murfreesboro, Tennessee 37127 (Borrower: GMP Murfreesboro LLC).
The aggregate outstanding principal balance of Loans 1-A through 1-H, as of February 28, 2024, is Four Hundred Twenty-One Million Six Hundred Thousand and 00/100 Dollars ($421,600,000.00). Each of the Loans bears interest at a fixed rate of 4.22% per annum, and each of the Loans matures on July 1, 2028.
1.2 Identification of Existing Guarantor
In connection with the Loan Documents, Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership (the "Existing Guarantor"), executed and delivered to Lender that certain Carve-Out Guaranty dated as of September 15, 2020, as amended (the "Existing Guaranty"), pursuant to which the Existing Guarantor guaranteed to Lender certain obligations and liabilities of the Borrowers arising under the Loan Documents, including, without limitation, those obligations arising in connection with so-called "bad boy" acts, voluntary bankruptcy filings, and environmental matters, as more particularly described in the Existing Guaranty. The Existing Guarantor is the sole member of each of the Borrowers and the indirect owner of 100% of the equity interests in each Borrower.
1.3 The Proposed Transfer / Change of Control
Lender has been advised that, pursuant to that certain Purchase and Sale Agreement dated as of February 28, 2024, as amended by the First Amendment to Purchase and Sale Agreement dated as of April 12, 2024, and the Second Amendment to Purchase and Sale Agreement dated as of May 28, 2024 (collectively, and as the same may be further amended from time to time, the "PSA"), by and between Greystone Meridian Partners Fund III, L.P. (in such capacity, the "Seller"), as seller, and Fairwater Real Estate Investment Trust, a Maryland real estate investment trust (the "Transferee" or "Buyer"), as purchaser, the Transferee intends to acquire from the Seller one hundred percent (100%) of the membership interests in each of the eight Borrower entities identified above (collectively, the "Interests").
The acquisition of the Interests by the Transferee from the Seller constitutes a "Change of Control" as that term is defined in Section 8.03(b) of the Loan Agreement (the "Proposed Transfer"). Pursuant to Section 8.03(a) of the Loan Agreement, no Change of Control may occur without the prior written consent of Lender, which consent may be granted or withheld in Lender's sole and absolute discretion.
1.4 Consent Request
By letter dated March 8, 2024, Calderwood & Harkness LLP, counsel to the Transferee, submitted to Whitfield & Archer LLP, counsel to Lender, a formal request for Lender's consent to the Proposed Transfer (the "Consent Request"). In connection with the Consent Request, the Transferee submitted to Lender the following supporting documentation, among other materials:
(a) audited financial statements of Fairwater Real Estate Investment Trust for the fiscal years ended December 31, 2021, December 31, 2022, and December 31, 2023, together with unaudited quarterly financial statements for the quarter ended March 31, 2024;
(b) organizational documents of Fairwater Real Estate Investment Trust, including its Declaration of Trust and Bylaws;
(c) a certificate of good standing for Fairwater Real Estate Investment Trust issued by the State Department of Assessments and Taxation of Maryland;
(d) a proposed form of Replacement Carve-Out Guaranty; and
(e) such other information and documentation as was reasonably requested by Lender in connection with its underwriting review of the Transferee.
Lender has completed its review of the Consent Request and the supporting documentation submitted in connection therewith, and, based upon such review and subject to the terms and conditions set forth herein, Lender is prepared to grant its consent to the Proposed Transfer as set forth in Section 2 below.
2. CONSENT
2.1 Grant of Consent
Subject to the satisfaction (or waiver by Lender) of each of the conditions precedent set forth in Section 3 below, Lender hereby consents to the Proposed Transfer, as described in Section 1.3 above. Such consent is limited solely and exclusively to the specific Proposed Transfer described herein — namely, the transfer of one hundred percent (100%) of the membership interests in each of GMP Fairfield I LLC, GMP Fairfield II LLC, GMP Westlake LLC, GMP Katy LLC, GMP Alliance LLC, GMP Lakeland LLC, GMP Southport LLC, and GMP Murfreesboro LLC from Seller to Transferee, and no other transfer or transaction. This consent does not constitute, and shall not be construed as, a consent to any other or further transfer, whether direct or indirect, voluntary or involuntary, of any ownership interests in any Borrower or in any direct or indirect owner of any Borrower, and any such other or further transfer shall require Lender's prior written consent in accordance with the applicable provisions of the Loan Documents. Lender's consent hereunder shall not be deemed to establish any course of dealing, custom, or practice, and shall not obligate Lender to consent to any future transfer or Change of Control.
2.2 Effective Date of Consent
This consent shall become effective upon the date on which all of the conditions set forth in Section 3 below have been satisfied in full or waived in writing by Lender (the "Effective Date"), which Effective Date shall in no event be later than the date on which the closing of the Proposed Transfer occurs. If the Proposed Transfer does not close on or before August 30, 2024, this Consent Letter shall automatically terminate and be of no further force or effect, unless Lender agrees in writing to extend such date.
3. CONDITIONS TO EFFECTIVENESS
The effectiveness of this Consent Letter, and the consent granted herein, is expressly conditioned upon the satisfaction (or written waiver by Lender) of each of the following conditions precedent on or prior to the Effective Date:
3.1 Payment of Consent Fee
Transferee and/or Seller shall have paid to Lender a consent fee in the amount of One Million Fifty-Four Thousand and 00/100 Dollars ($1,054,000.00) (the "Consent Fee"), calculated as twenty-five basis points (0.25%) of the aggregate outstanding principal balance of $421,600,000.00. The Consent Fee shall be paid by wire transfer of immediately available funds to Lender's account designated on Exhibit A attached hereto and incorporated herein by this reference. The Consent Fee shall be deemed fully earned by Lender upon receipt and shall be non-refundable under any and all circumstances, regardless of whether the Proposed Transfer is consummated, and regardless of the reason for any failure to consummate the Proposed Transfer. Lender shall have no obligation to apply or credit the Consent Fee against any other amounts owed by any Borrower, Seller, or Transferee under the Loan Documents or otherwise.
3.2 Execution and Delivery of Replacement Guaranty
Fairwater Real Estate Investment Trust shall have executed and delivered to Lender a Replacement Carve-Out Guaranty (the "Replacement Guaranty"), in form and substance satisfactory to Lender in its sole discretion, pursuant to which the Transferee shall replace the Existing Guarantor as the carve-out guarantor under the Loan Documents. The Replacement Guaranty shall be in the form previously approved by Lender, a copy of which is referenced and described in Exhibit B attached hereto and incorporated herein by this reference.
The Replacement Guaranty shall contain, among other provisions, the following financial covenants, which shall be maintained by the Transferee at all times during the term of the Loans (including any extensions thereof):
(a) Minimum Tangible Net Worth. Transferee shall maintain a minimum Tangible Net Worth (as defined in the Replacement Guaranty) of not less than Five Hundred Million and 00/100 Dollars ($500,000,000.00) at all times, as calculated in accordance with generally accepted accounting principles consistently applied.
(b) Minimum Liquid Assets. Transferee shall maintain minimum Liquid Assets (as defined in the Replacement Guaranty) of not less than Fifty Million and 00/100 Dollars ($50,000,000.00) at all times. For purposes of the Replacement Guaranty, "Liquid Assets" shall mean the sum of (i) unrestricted cash, (ii) unrestricted cash equivalents, and (iii) undrawn capacity under committed revolving credit facilities, in each case as reflected on the Transferee's most recently delivered financial statements.
Transferee shall deliver to Lender, on an annual basis within one hundred twenty (120) days after the end of each fiscal year and on a quarterly basis within sixty (60) days after the end of each fiscal quarter, a compliance certificate executed by the Chief Financial Officer of Transferee certifying Transferee's compliance with the foregoing financial covenants.
3.3 Execution and Delivery of Assumption Agreement
Transferee and each Borrower shall have executed and delivered to Lender an Assumption Agreement (the "Assumption Agreement"), in form and substance satisfactory to Lender in its sole discretion, pursuant to which (a) the Transferee acknowledges and agrees to be bound by all terms, conditions, covenants, and obligations of the Loan Documents applicable to the direct and indirect owners of the Borrowers, including, without limitation, all restrictions on transfers and changes of control, insurance and reporting requirements, and obligations relating to the management, operation, and maintenance of the Properties, and (b) the Borrowers confirm and acknowledge that all of their respective obligations under the Loan Documents remain in full force and effect, are unmodified except as expressly set forth in the Assumption Agreement, and are enforceable in accordance with their respective terms.
The Assumption Agreement shall further confirm that the liens, security interests, assignments, and encumbrances granted by the Borrowers to Lender pursuant to the Loan Documents continue in full force and effect and are not impaired, released, or otherwise affected by the Proposed Transfer.
3.4 Delivery of Organizational Documents and Authorizing Resolutions
Transferee shall have delivered to Lender the following documents, in form and substance satisfactory to Lender, each of which shall be certified by an authorized officer or trustee of Transferee as being true, correct, and complete:
(a) A true, correct, and complete copy of the Declaration of Trust and Bylaws of Fairwater Real Estate Investment Trust, together with all amendments thereto;
(b) A certified copy of resolutions duly adopted by the Board of Trustees of Fairwater Real Estate Investment Trust authorizing and approving the Proposed Transfer and the execution, delivery, and performance by Transferee of the Replacement Guaranty, the Assumption Agreement, this Consent Letter, and all other documents to be executed by Transferee in connection herewith;
(c) A certificate of good standing (or equivalent certificate of status) for Fairwater Real Estate Investment Trust issued by the State Department of Assessments and Taxation of the State of Maryland, dated not more than thirty (30) days prior to the Effective Date; and
(d) An incumbency certificate identifying the authorized signatories of Fairwater Real Estate Investment Trust, together with specimen signatures of such authorized signatories.
3.5 Delivery of Updated Insurance
Transferee shall have delivered to Lender certificates of insurance or other evidence of insurance coverage satisfactory to Lender for each of the eight Properties, demonstrating that insurance coverage is in place for each Property in compliance with the requirements of the Loan Documents, including, without limitation, the required coverage types, coverage amounts, deductible thresholds, and carrier ratings. All such policies shall name Pinnacle Federal Bank, N.A., as mortgagee and loss payee (and, where applicable, as additional insured), pursuant to standard mortgagee clauses acceptable to Lender, and all such policies shall be effective as of the closing date of the Proposed Transfer.
3.6 No Default
No Event of Default, and no event or condition that with the giving of notice or the passage of time, or both, would constitute an Event of Default, under any of the Loan Documents shall have occurred and be continuing as of the Effective Date. Lender shall have received a certificate from each Borrower and from the Transferee, in each case executed by an authorized officer or representative, certifying that no such Event of Default or incipient default exists.
3.7 Payment of Lender's Counsel Fees and Expenses
Transferee and/or Seller shall have paid all reasonable and documented fees, costs, disbursements, and out-of-pocket expenses incurred by Lender's counsel, Whitfield & Archer LLP (717 Texas Avenue, Suite 2500, Houston, Texas 77002; Attention: Sandra Whitfield), in connection with the review, negotiation, preparation, and execution of this Consent Letter, the Replacement Guaranty, the Assumption Agreement, and all related documents, instruments, and agreements. Such fees and expenses shall be paid by wire transfer of immediately available funds to the account designated by Whitfield & Archer LLP in its invoice, which shall be delivered to Transferee and/or Seller not later than three (3) business days prior to the anticipated Effective Date.
3.8 Other Deliverables
Lender shall have received such other documents, instruments, agreements, certificates, opinions, and information as Lender may reasonably request in connection with the Proposed Transfer, including, without limitation, legal opinions of counsel to Transferee regarding due authorization, enforceability, and such other matters as Lender may reasonably require.
4. REPRESENTATIONS AND ACKNOWLEDGMENTS
4.1 Transferee Representations
Transferee hereby represents and warrants to Lender, as of the date hereof and as of the Effective Date, as follows:
(a) Transferee is a Maryland real estate investment trust, duly organized, validly existing, and in good standing under the laws of the State of Maryland, and has all requisite power and authority to own, lease, and operate its assets and properties and to carry on its business as currently conducted.
(b) Transferee has the full power, authority, and legal right to execute, deliver, and perform its obligations under the Replacement Guaranty, the Assumption Agreement, and this Consent Letter, and each such document constitutes or, when executed and delivered, will constitute, the legal, valid, and binding obligation of the Transferee, enforceable against the Transferee in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting the enforcement of creditors' rights generally and to general principles of equity.
(c) The execution, delivery, and performance of the Replacement Guaranty, the Assumption Agreement, and this Consent Letter have been duly authorized by all necessary action on the part of the Transferee, including, without limitation, approval by the Board of Trustees of Fairwater Real Estate Investment Trust, and no further approval, consent, authorization, or act of any other person, entity, or governmental authority is required in connection therewith.
(d) As of the date hereof, Transferee is in compliance with each of the financial covenants set forth in Section 3.2 above, including the Minimum Tangible Net Worth covenant and the Minimum Liquid Assets covenant, and expects to remain in compliance with such covenants throughout the remaining term of the Loans.
(e) Transferee is a publicly traded real estate investment trust whose common shares of beneficial interest are listed on the New York Stock Exchange under the ticker symbol "FREIT." As of the end of the fourth fiscal quarter of 2023 (i.e., as of December 31, 2023), the Transferee had a total equity market capitalization of approximately Four Billion Eight Hundred Million and 00/100 Dollars ($4,800,000,000.00).
(f) Neither the execution and delivery of this Consent Letter, the Replacement Guaranty, or the Assumption Agreement, nor the consummation of the Proposed Transfer, will (i) violate any provision of the Declaration of Trust or Bylaws of the Transferee, (ii) violate any order, judgment, injunction, award, or decree of any court, arbitrator, or governmental authority binding upon or applicable to the Transferee, or (iii) conflict with, result in a breach of, or constitute a default under any material agreement or instrument to which the Transferee is a party or by which the Transferee or its assets may be bound.
4.2 Borrower and Seller Acknowledgments
Each Borrower and Seller hereby acknowledges and agrees as follows:
(a) The Loan Documents, as supplemented by the Replacement Guaranty and the Assumption Agreement executed in connection herewith, remain in full force and effect and constitute the legal, valid, and binding obligations of the Borrowers and their successors and assigns, enforceable in accordance with their respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting the enforcement of creditors' rights generally and to general principles of equity. No Borrower has received any notice of default from Lender that remains outstanding, and no Borrower has delivered any notice of default to Lender.
(b) The aggregate outstanding principal balance of the Loans (Loans 1-A through 1-H) as of February 28, 2024, is Four Hundred Twenty-One Million Six Hundred Thousand and 00/100 Dollars ($421,600,000.00), bearing interest at a fixed rate of four and twenty-two one-hundredths percent (4.22%) per annum, with a stated maturity date of July 1, 2028. All payments of principal and interest on the Loans are current as of the date hereof, and no amounts are past due.
(c) As of the date of this Consent Letter, no Event of Default, and no event or condition that with the giving of notice or the lapse of time or both would constitute an Event of Default, exists under any of the Loan Documents. Each Borrower and Seller further confirms that, to its actual knowledge after reasonable inquiry, no circumstances exist that would reasonably be expected to give rise to an Event of Default.
(d) No Borrower has any defenses, counterclaims, offsets, credits, or rights of recoupment with respect to the enforcement of the Loan Documents or any obligations arising thereunder, and each Borrower hereby waives, releases, and forever discharges any such defenses, counterclaims, offsets, credits, or rights of recoupment that may exist as of the date hereof.
5. RELEASE OF EXISTING GUARANTOR
5.1 Conditional Release
Upon the Effective Date and upon Lender's receipt and acceptance of the fully executed Replacement Guaranty, Lender hereby releases Greystone Meridian Partners Fund III, L.P. (the Existing Guarantor) from all obligations and liabilities arising under the Existing Guaranty, solely with respect to matters, acts, events, and occurrences arising from and after the Effective Date.
For the avoidance of doubt, the release of the Existing Guarantor provided for in this Section 5.1 shall not extend to, and the Existing Guarantor shall remain fully liable for, any and all obligations, liabilities, losses, damages, claims, costs, and expenses (including reasonable attorneys' fees and expenses) arising under the Existing Guaranty to the extent such obligations, liabilities, losses, damages, claims, costs, and expenses relate to or arise from acts, events, omissions, conditions, or occurrences that occurred or accrued prior to the Effective Date, regardless of whether a claim with respect thereto is asserted before or after the Effective Date. The obligations of the Existing Guarantor that survive pursuant to this paragraph shall remain in full force and effect until the expiration of the applicable statute of limitations.
6. RESERVATION OF RIGHTS
6.1 No Waiver
The consent granted herein is limited solely and exclusively to the specific Proposed Transfer described in this Consent Letter and shall not be deemed or construed as a consent to any other or further transfer, transaction, or action, whether of a similar or dissimilar nature, or as a waiver of any provision of the Loan Documents, including, without limitation, the provisions of Section 8.03 of the Loan Agreement requiring Lender's prior written consent to any Change of Control. Lender expressly reserves all rights, remedies, and powers under the Loan Documents, at law, and in equity, including, without limitation, the right to require its prior written consent to any future direct or indirect transfer of ownership interests in any Borrower or in any direct or indirect owner of any Borrower. No delay or omission on the part of Lender in exercising any right, remedy, or power shall operate as a waiver thereof, and no single or partial exercise of any right, remedy, or power shall preclude any other or further exercise thereof or the exercise of any other right, remedy, or power.
6.2 No Modification
Except as expressly set forth in this Consent Letter, the Loan Documents are not amended, modified, restated, or supplemented by this Consent Letter, and all terms, conditions, covenants, representations, warranties, and provisions of the Loan Documents remain unchanged and in full force and effect. Nothing in this Consent Letter shall be construed as an agreement by Lender to modify, amend, or supplement any term, condition, covenant, or provision of any Loan Document, and Lender expressly reserves the right to enforce all provisions of the Loan Documents in accordance with their terms.
6.3 Precedence. In the event of any conflict or inconsistency between the terms and provisions of this Consent Letter and the terms and provisions of the Loan Documents, the terms and provisions of the Loan Documents shall govern and control in all respects, except with respect to (a) the specific consent to the Proposed Transfer granted pursuant to Section 2.1 hereof and (b) the replacement of the Existing Guarantor with the Transferee as provided in Section 5.1 hereof and in the Replacement Guaranty, in which case the terms and provisions of this Consent Letter and the Replacement Guaranty shall govern and control.
7. MISCELLANEOUS
7.1 Governing Law
This Consent Letter shall be governed by, and construed and enforced in accordance with, the laws of the State of New York (including Section 5-1401 and Section 5-1402 of the New York General Obligations Law), without regard to any conflicts of laws principles that would require or permit the application of the laws of any other jurisdiction, consistent with the governing law provisions of the Loan Agreement.
7.2 Counterparts. This Consent Letter may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which, taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of this Consent Letter by portable document format (.pdf) transmission, electronic mail, or other electronic means shall be equally as effective as delivery of a manually executed counterpart, and any party delivering an executed counterpart by such electronic means shall thereafter also deliver an original manually executed counterpart, provided that the failure to deliver such original manually executed counterpart shall not affect the validity, enforceability, or binding effect of this Consent Letter.
7.3 Binding Effect
This Consent Letter shall be binding upon and inure to the benefit of Lender, each Borrower, Seller, and Transferee and their respective successors, assigns, heirs, executors, administrators, and legal representatives. No party may assign its rights or obligations under this Consent Letter without the prior written consent of the other parties hereto, except that Lender may assign its rights and obligations hereunder in connection with any assignment of its rights under the Loan Documents.
7.4 Entire Agreement
This Consent Letter, together with the Loan Documents, the Replacement Guaranty, and the Assumption Agreement, constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, discussions, understandings, and agreements, whether oral or written, relating to the subject matter hereof. No amendment, modification, or supplement to this Consent Letter shall be effective unless in writing and signed by each of the parties hereto.
[Remainder of this page intentionally left blank. Signature pages follow.]
SIGNATURE PAGE TO CONSENT LETTER PINNACLE FEDERAL BANK, N.A. Consent to Change of Control — Loans 1-A through 1-H
IN WITNESS WHEREOF, Lender has executed this Consent Letter as of the date first set forth above.
LENDER:
PINNACLE FEDERAL BANK, N.A.
By: ________
Name: Bradley Carston
Title: Senior Vice President
Date: June 4, 2024
SIGNATURE PAGE TO CONSENT LETTER FAIRWATER REAL ESTATE INVESTMENT TRUST Consent to Change of Control — Loans 1-A through 1-H
ACKNOWLEDGED AND AGREED:
TRANSFEREE / BUYER:
FAIRWATER REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust
By: ________
Name: Marcus Devereaux
Title: Executive Vice President, Acquisitions
Date: June 4, 2024
SIGNATURE PAGE TO CONSENT LETTER GREYSTONE MERIDIAN PARTNERS FUND III, L.P. Consent to Change of Control — Loans 1-A through 1-H
ACKNOWLEDGED AND AGREED:
SELLER / EXISTING GUARANTOR:
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: Managing Partner
Date: June 4, 2024
SIGNATURE PAGE TO CONSENT LETTER BORROWERS Consent to Change of Control — Loans 1-A through 1-H
ACKNOWLEDGED AND AGREED:
EACH BORROWER:
Each of (i) GMP Fairfield I LLC, a Delaware limited liability company, (ii) GMP Fairfield II LLC, a Delaware limited liability company, (iii) GMP Westlake LLC, a Delaware limited liability company, (iv) GMP Katy LLC, a Delaware limited liability company, (v) GMP Alliance LLC, a Delaware limited liability company, (vi) GMP Lakeland LLC, a Delaware limited liability company, (vii) GMP Southport LLC, a Delaware limited liability company, and (viii) GMP Murfreesboro LLC, a Delaware limited liability company:
By: Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership, its Sole Member
By: Greystone Meridian Capital LLC, a Delaware limited liability company, its General Partner
By: ________
Name: Victor Lansdell
Title: Managing Partner
Date: June 4, 2024
EXHIBIT A
WIRE TRANSFER INSTRUCTIONS FOR CONSENT FEE
The Consent Fee in the amount of $1,054,000.00 shall be paid by wire transfer of immediately available funds to the following account:
Note Regarding Allocation: Pursuant to the terms of the PSA, the Consent Fee is to be allocated on a fifty/fifty (50/50) basis between Buyer (Fairwater Real Estate Investment Trust) in the amount of $527,000.00 and Seller (Greystone Meridian Partners Fund III, L.P.) in the amount of $527,000.00. Notwithstanding the foregoing allocation, the full Consent Fee of $1,054,000.00 shall be received by Lender in a single wire transfer. The manner and timing of reimbursement or contribution between Buyer and Seller with respect to such allocation is a matter between Buyer and Seller and shall not affect or delay the obligation to pay the Consent Fee to Lender in full.
EXHIBIT B
FORM OF REPLACEMENT GUARANTY (Reference Only)
The Replacement Carve-Out Guaranty (the "Replacement Guaranty") has been executed by Fairwater Real Estate Investment Trust, a Maryland real estate investment trust, as guarantor, in favor of Pinnacle Federal Bank, N.A., as lender, and has been delivered to Lender as a separate instrument, executed and delivered contemporaneously with this Consent Letter. The Replacement Guaranty is attached hereto for reference purposes and is incorporated herein by this reference.
Key Terms of the Replacement Guaranty (Summary for Reference Only):
Guarantor: Fairwater Real Estate Investment Trust, a Maryland real estate investment trust.
Beneficiary: Pinnacle Federal Bank, N.A.
Guaranteed Obligations: Non-recourse carve-out obligations of the Borrowers under the Loan Documents, including, without limitation:
(a) losses and damages arising from "bad boy" acts (as defined in the Replacement Guaranty), including fraud, intentional misrepresentation, misapplication of rents, revenues, insurance proceeds, or condemnation awards, and waste;
(b) losses and damages arising from a voluntary bankruptcy or insolvency filing by any Borrower or any action by any Borrower to solicit or cause an involuntary bankruptcy filing;
(c) environmental indemnification obligations, including obligations arising under federal, state, and local environmental laws and regulations with respect to the Properties; and
(d) such other carve-out obligations as are set forth in the Replacement Guaranty.
Financial Covenants:
(a) Minimum Tangible Net Worth: $500,000,000.00
(b) Minimum Liquid Assets: $50,000,000.00
Reporting Requirements: Annual audited financial statements and quarterly unaudited financial statements, together with compliance certificates, to be delivered within the time periods specified in Section 3.2 of this Consent Letter.
The foregoing summary is for reference purposes only and is qualified in its entirety by the full text of the Replacement Guaranty. In the event of any conflict between this summary and the Replacement Guaranty, the terms of the Replacement Guaranty shall govern and control.
EXHIBIT C
LIST OF LOAN DOCUMENTS
The following is a list of the Loan Documents executed and delivered in connection with the Master Loan Agreement dated as of September 15, 2020, by and among Pinnacle Federal Bank, N.A., as lender, and the Borrowers, as amended, restated, supplemented, or otherwise modified from time to time:
1. Master Loan Agreement dated as of September 15, 2020, by and among Pinnacle Federal Bank, N.A. and each of GMP Fairfield I LLC, GMP Fairfield II LLC, GMP Westlake LLC, GMP Katy LLC, GMP Alliance LLC, GMP Lakeland LLC, GMP Southport LLC, and GMP Murfreesboro LLC (as amended by the First Amendment to Master Loan Agreement dated as of March 1, 2022, and the Second Amendment to Master Loan Agreement dated as of November 15, 2023).
2. Promissory Notes (Loans 1-A through 1-H), each dated as of September 15, 2020, executed by the respective Borrower in favor of Pinnacle Federal Bank, N.A.:
(a) Promissory Note — Loan 1-A (GMP Fairfield I LLC) (b) Promissory Note — Loan 1-B (GMP Fairfield II LLC) (c) Promissory Note — Loan 1-C (GMP Westlake LLC) (d) Promissory Note — Loan 1-D (GMP Katy LLC) (e) Promissory Note — Loan 1-E (GMP Alliance LLC) (f) Promissory Note — Loan 1-F (GMP Lakeland LLC) (g) Promissory Note — Loan 1-G (GMP Southport LLC) (h) Promissory Note — Loan 1-H (GMP Murfreesboro LLC)
3. Deeds of Trust / Mortgages / Security Deeds (as applicable by state), each dated as of September 15, 2020, encumbering the respective Property:
(a) Deed to Secure Debt, Assignment of Leases and Rents, Security Agreement, and Fixture Filing — Fairfield Logistics Center I, Fulton County, Georgia (Loan 1-A) (b) Deed to Secure Debt, Assignment of Leases and Rents, Security Agreement, and Fixture Filing — Fairfield Logistics Center II, Fulton County, Georgia (Loan 1-B) (c) Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture Filing — Westlake Distribution Hub, Harris County, Texas (Loan 1-C) (d) Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture Filing — Katy Freeway Logistics Park, Harris County, Texas (Loan 1-D) (e) Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture Filing — Alliance Commerce Center, Tarrant County, Texas (Loan 1-E) (f) Mortgage, Assignment of Leases and Rents, Security Agreement, and Fixture Filing — Lakeland Crossings Industrial, Polk County, Florida (Loan 1-F) (g) Mortgage, Assignment of Leases and Rents, Security Agreement, and Fixture Filing — Southport Logistics Park, Duval County, Florida (Loan 1-G) (h) Deed of Trust, Assignment of Leases and Rents, Security Agreement, and Fixture Filing — Murfreesboro Distribution Center, Rutherford County, Tennessee (Loan 1-H)
4. Assignments of Leases and Rents for each of the eight Properties (to the extent not incorporated within the instruments described in item 3 above), each dated as of September 15, 2020.
5. Environmental Indemnity Agreements, each dated as of September 15, 2020, executed by each Borrower and the Existing Guarantor in favor of Pinnacle Federal Bank, N.A., with respect to each of the eight Properties.
6. Carve-Out Guaranty (Existing Guaranty), dated as of September 15, 2020, executed by Greystone Meridian Partners Fund III, L.P. in favor of Pinnacle Federal Bank, N.A. (to be replaced by the Replacement Guaranty upon the Effective Date).
7. UCC Financing Statements (UCC-1), filed in the State of Delaware (as the state of organization of each Borrower) and in the applicable recording offices of Fulton County, Georgia; Harris County, Texas; Tarrant County, Texas; Polk County, Florida; Duval County, Florida; and Rutherford County, Tennessee, together with any UCC continuation statements filed in connection therewith.
8. Cash Management Agreements, each dated as of September 15, 2020, by and among the respective Borrower, Pinnacle Federal Bank, N.A., and the applicable depository bank, governing the collection, application, and disbursement of rents and revenues from each of the eight Properties.
9. All amendments, supplements, modifications, extensions, consolidations, and restatements of any of the foregoing Loan Documents, including, without limitation, those described in item 1 above.
END OF EXHIBIT C
| Field | Detail |
| Account Name | Pinnacle Federal Bank, N.A. — Loan Administration |
| Bank | Pinnacle Federal Bank, N.A. |
| Bank Address | 600 Travis Street, Suite 4400, Houston, Texas 77002 |
| ABA Routing Number | 111000555 |
| Account Number | 8834-2201-7760 |
| SWIFT Code | PFBKUS44 |
| Reference | Consent Fee — Loans 1-A through 1-H / Master Loan Agreement dated September 15, 2020 |
| Consent Fee Amount | $1,054,000.00 |