REPLACEMENT CARVE-OUT GUARANTY
executed in connection with that certain Master Loan Agreement dated September 15, 2020 (as amended, the "Loan Agreement"), by and among 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"), and Pinnacle Federal Bank, N.A. ("Lender")
Loans Covered: Loans 1-A through 1-H
Aggregate Outstanding Principal Balance: $421,600,000.00 (as of February 28, 2024)
Interest Rate: Fixed 4.22% per annum
Maturity Date: July 1, 2028
Execution Date: June 6, 2024
REPLACEMENT CARVE-OUT GUARANTY
THIS REPLACEMENT CARVE-OUT GUARANTY (this "Guaranty") is made and entered into as of June 6, 2024, by FAIRWATER REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust ("Guarantor"), having its principal office at 7200 Chesapeake Parkway, Suite 1100, Columbia, Maryland 21044 (EIN: 52-2198437; NYSE: FREIT), in favor of PINNACLE FEDERAL BANK, N.A., a national banking association organized under the laws of the United States ("Lender"), having offices at 600 Travis Street, Suite 4400, Houston, Texas 77002.
RECITALS
A. The Loan. Lender and the Borrowers are parties to that certain Master Loan Agreement dated as of September 15, 2020, as amended (the "Loan Agreement"), pursuant to which Lender made certain loans to the Borrowers evidenced by eight (8) individual loan supplements designated as Loan 1-A, Loan 1-B, Loan 1-C, Loan 1-D, Loan 1-E, Loan 1-F, Loan 1-G, and Loan 1-H (collectively, the "Loans"). Each Loan is secured by, among other things, a first-priority lien on a logistics or industrial property (each, a "Property" and collectively, the "Properties"). As of February 28, 2024, the aggregate outstanding principal balance of the Loans is Four Hundred Twenty-One Million Six Hundred Thousand and No/100 Dollars ($421,600,000.00), bearing interest at a fixed rate of 4.22% per annum, with a maturity date of July 1, 2028. The Properties securing the Loans are as follows:
(i) Loan 1-A: Fairfield Logistics Center I, located at 4200 Fairfield Industrial Boulevard, Fairburn, Georgia 30213, owned by GMP Fairfield I LLC, a Delaware limited liability company;
(ii) Loan 1-B: Fairfield Logistics Center II, located at 4300 Fairfield Industrial Boulevard, Fairburn, Georgia 30213, owned by GMP Fairfield II LLC, a Delaware limited liability company;
(iii) Loan 1-C: Westlake Distribution Hub, located at 11500 Westlake Parkway, Houston, Texas 77082, owned by GMP Westlake LLC, a Delaware limited liability company;
(iv) Loan 1-D: Katy Freeway Logistics Park, located at 22600 Katy Freeway, Katy, Texas 77449, owned by GMP Katy LLC, a Delaware limited liability company;
(v) Loan 1-E: Alliance Commerce Center, located at 2800 Alliance Gateway Boulevard, Fort Worth, Texas 76177, owned by GMP Alliance LLC, a Delaware limited liability company;
(vi) Loan 1-F: Lakeland Crossings Industrial, located at 7100 Drane Field Road, Lakeland, Florida 33811, owned by GMP Lakeland LLC, a Delaware limited liability company;
(vii) Loan 1-G: Southport Logistics Park, located at 3200 Southport Connector Road, Jacksonville, Florida 32218, owned by GMP Southport LLC, a Delaware limited liability company; and
(viii) Loan 1-H: Murfreesboro Distribution Center, located at 1600 Joe B. Jackson Parkway, Murfreesboro, Tennessee 37127, owned by GMP Murfreesboro LLC, a Delaware limited liability company.
B. The Original Guaranty. In connection with the execution and delivery of the Loan Agreement and the origination of the Loans, Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership (EIN: 83-1647205), with its principal office at 3300 Peachtree Road NE, Suite 2200, Atlanta, Georgia 30326 (the "Original Guarantor"), acting by and through its general partner, Greystone Meridian Capital LLC, a Delaware limited liability company, executed and delivered in favor of Lender that certain Carve-Out Guaranty dated as of September 15, 2020 (the "Original Guaranty"), pursuant to which the Original Guarantor guaranteed certain recourse obligations of the Borrowers under the Loan Documents.
C. The Transfer / Change of Control. Pursuant to that certain Purchase and Sale Agreement dated February 28, 2024, as amended by that First Amendment to Purchase and Sale Agreement dated April 12, 2024, and that Second Amendment to Purchase and Sale Agreement dated May 28, 2024 (collectively, the "Purchase Agreement"), between Greystone Meridian Partners Fund III, L.P., as seller ("Seller"), and Fairwater Real Estate Investment Trust, as buyer ("Buyer"), Buyer is acquiring one hundred percent (100%) of the membership interests in each Borrower (the "Transfer"), which Transfer constitutes a change of control under Section 7.02 of the Loan Agreement. Reference is made to the Consent Letter executed by Lender dated June 4, 2024 (the "Consent"), pursuant to which Lender consented to the Transfer, subject to the terms and conditions set forth therein, including the payment of a consent fee in the amount of One Million Fifty-Four Thousand and No/100 Dollars ($1,054,000.00), representing 0.25% of the aggregate outstanding principal balance of $421,600,000.00, which consent fee has been paid as a condition precedent to the issuance of the Consent.
D. Requirement for Replacement Guaranty. As a material condition to Lender's consent to the Transfer and the change of control contemplated thereby, the Loan Agreement and the Consent require that the Original Guaranty be replaced in its entirety by this Replacement Carve-Out Guaranty executed and delivered by Guarantor in favor of Lender. Upon the execution and delivery of this Guaranty, the Original Guaranty shall terminate and be of no further force or effect, and the Original Guarantor shall be fully and unconditionally released from all obligations arising thereunder, as further set forth in Section 10 hereof.
E. Guarantor's Interest. Following the closing of the Transfer, Guarantor is and will be the indirect owner of one hundred percent (100%) of the membership interests in each Borrower. Guarantor will derive substantial direct and indirect benefit from the Loans remaining in place and from the continued ownership and operation of the Properties by the Borrowers. Guarantor is a Maryland real estate investment trust whose common shares of beneficial interest are publicly listed and traded on the New York Stock Exchange under the ticker symbol "FREIT," with an approximate market capitalization of Four Billion Eight Hundred Million Dollars ($4,800,000,000) as of the fourth quarter of 2023. As of the date hereof, Guarantor's portfolio comprises sixty-two (62) logistics, industrial, and suburban office properties located across eleven (11) states, totaling approximately 18.4 million rentable square feet (prior to the acquisition of the Properties).
NOW, THEREFORE, in consideration of Lender's consent to the Transfer and change of control, Lender's agreement to permit the Loans to remain outstanding, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor hereby agrees as follows:
SECTION 1 — DEFINITIONS
As used in this Guaranty, the following terms shall have the meanings set forth below. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Loan Agreement.
1.1 "Borrowers" shall mean, collectively, 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 individually a "Borrower," as more particularly identified on Schedule 1 attached hereto.
1.2 "Guaranteed Obligations" shall mean all Losses arising from or in connection with the Recourse Carve-Out Events set forth in Section 2 of this Guaranty, including, without limitation, the full outstanding principal balance and all other amounts owing under the Loan Documents to the extent such amounts become the personal obligation of the Borrowers or are otherwise subject to recourse liability pursuant to the terms of this Guaranty.
1.3 "Guarantor" shall mean Fairwater Real Estate Investment Trust, a Maryland real estate investment trust.
1.4 "Guarantor Financial Covenants" shall mean the minimum Tangible Net Worth covenant and the minimum Liquid Assets covenant set forth in Section 5 of this Guaranty.
1.5 "Lender" shall mean Pinnacle Federal Bank, N.A., a national banking association organized under the laws of the United States, and its successors and assigns.
1.6 "Liquid Assets" shall mean, as of any date of determination, the aggregate amount of (a) unrestricted cash and cash equivalents held by Guarantor and its consolidated subsidiaries, including, without limitation, demand deposits, money market accounts, certificates of deposit with original maturities of ninety (90) days or less, and United States Treasury obligations with original maturities of ninety (90) days or less, and (b) marketable securities, consisting of publicly traded equity securities and investment-grade corporate and government debt securities that are not subject to any pledge, lien, encumbrance, lock-up agreement, or other restriction on transfer, in each case determined in accordance with GAAP as consistently applied by Guarantor.
1.7 "Loan Agreement" shall mean the Master Loan Agreement dated as of September 15, 2020, by and among the Borrowers and Lender, as amended, restated, supplemented, or otherwise modified from time to time, together with all exhibits, schedules, supplements, loan supplements, and amendments thereto.
1.8 "Loan Documents" shall mean, collectively, the Loan Agreement, the promissory notes executed in connection therewith (the "Notes"), the mortgages, deeds of trust, deeds to secure debt, and security instruments executed in connection therewith (collectively, the "Mortgages"), the assignments of leases and rents, the Environmental Indemnity Agreement (as defined below), the Original Guaranty (as replaced by this Guaranty), this Guaranty, and all other documents, instruments, certificates, and agreements executed and delivered in connection with the Loans, in each case as the same may be amended, restated, supplemented, or otherwise modified from time to time.
1.9 "Losses" shall mean any and all losses, damages, costs, expenses, liabilities, claims, demands, actions, judgments, penalties, fines, and reasonable attorneys' fees, costs of investigation, and disbursements (including the allocated costs of in-house counsel) actually incurred or suffered by Lender.
1.10 "Properties" shall mean the eight (8) real properties described in Recital A hereof and more particularly identified on Schedule 1 attached hereto, together with all improvements, fixtures, and personal property located thereon and all rights appurtenant thereto.
1.11 "Recourse Carve-Out Events" shall mean the events and circumstances described in Section 2 of this Guaranty giving rise to the Guaranteed Obligations.
1.12 "Tangible Net Worth" shall mean, as of any date of determination, (a) the total assets of Guarantor and its consolidated subsidiaries, minus (b) the total liabilities of Guarantor and its consolidated subsidiaries, minus (c) the intangible assets of Guarantor and its consolidated subsidiaries (including, without limitation, goodwill, trademarks, trade names, service marks, copyrights, patents, licenses, and organizational costs, but excluding mortgage servicing rights and lease intangibles arising in the ordinary course of real estate operations), all as determined in accordance with GAAP applied on a consistent basis.
SECTION 2 — RECOURSE CARVE-OUT EVENTS (SCOPE OF GUARANTY)
2.1 Full Recourse Events (Springing Full Recourse).
Guarantor hereby absolutely, unconditionally, and irrevocably guarantees to Lender the payment of the entire outstanding principal balance of the Loans, together with all accrued and unpaid interest thereon, all prepayment premiums or yield maintenance charges, and all other sums owing under the Loan Documents, upon the occurrence of any one or more of the following events (each, a "Full Recourse Event"):
(a) Voluntary Bankruptcy Filing. Any voluntary filing by or on behalf of any Borrower of a petition for relief under Title 11 of the United States Code (the "Bankruptcy Code") or any similar federal or state statute, including, without limitation, any filing for reorganization, liquidation, adjustment of debts, or any similar proceeding, or any general assignment for the benefit of creditors by any Borrower, or any admission in writing by any Borrower of its inability to pay its debts as they become due;
(b) Collusive or Consented Involuntary Bankruptcy Filing. The filing of an involuntary petition for relief against any Borrower under the Bankruptcy Code or any similar federal or state statute, if such involuntary petition (i) is not dismissed within ninety (90) days following the date of such filing, and (ii) was filed with the collusion, consent, solicitation, or active participation of any Borrower, Guarantor, or any affiliate of any Borrower or Guarantor, or any person or entity acting at the direction of, or with the encouragement of, any Borrower, Guarantor, or any such affiliate;
(c) Prohibited Transfer. Any sale, transfer, conveyance, assignment, pledge, encumbrance, or other disposition (whether voluntary or involuntary, by operation of law or otherwise) of all or any portion of any Property, or of any direct or indirect ownership interest in any Borrower, in violation of the transfer restrictions set forth in the Loan Documents; provided, however, that the Transfer consented to by Lender pursuant to the Consent shall not constitute a Prohibited Transfer for purposes of this Section 2.1(c);
(d) Fraud or Material Misrepresentation. The commission of actual fraud by Guarantor, any Borrower, or any officer, director, trustee, member, manager, partner, or authorized agent of Guarantor or any Borrower in connection with the Loans or any of the Loan Documents, or any material misrepresentation made by or on behalf of Guarantor or any Borrower in connection with the origination of the Loans, the execution and delivery of any Loan Document, or the delivery of any certificate, report, financial statement, or other document required to be delivered under the Loan Documents; and
(e) Failure to Maintain Single-Purpose Entity Status. The failure of any Borrower to maintain its status as a "single-purpose entity" or "special purpose entity" in accordance with the organizational documents of such Borrower and the covenants set forth in the Loan Agreement, including, without limitation, the failure of any Borrower to (i) maintain its existence as a separate legal entity, (ii) hold itself out to the public as a separate entity, (iii) maintain separate books, records, and bank accounts, (iv) refrain from commingling its assets with the assets of any other person or entity, (v) pay its own liabilities and expenses from its own funds, or (vi) comply with any other separateness covenant set forth in the Loan Documents.
Upon the occurrence of any Full Recourse Event, the Loans shall be fully recourse to Guarantor, and Guarantor's liability hereunder shall include, without limitation, all principal, interest, prepayment premiums, yield maintenance charges, late charges, default interest, and all other amounts of any kind or nature owing under the Loan Documents, whether or not the same have been accelerated or declared due and payable.
2.2 Limited Recourse Carve-Outs (Loss Guaranty).
In addition to, and without duplication of, the Full Recourse Events set forth in Section 2.1, Guarantor hereby absolutely, unconditionally, and irrevocably guarantees to Lender the payment of all Losses arising from or in connection with any one or more of the following events or circumstances (each, a "Limited Recourse Carve-Out Event"):
(a) Misapplication of Rents, Revenues, Insurance Proceeds, or Condemnation Awards. Any misapplication, misappropriation, conversion, or diversion of rents, revenues, income, receipts, insurance proceeds, or condemnation awards derived from or related to any Property, including, without limitation, the application of any such amounts to any purpose other than the payment of debt service, operating expenses, capital expenditures, and reserve deposits required under the Loan Documents, or the remittance of any such amounts to any person or entity other than as permitted under the Loan Documents;
(b) Misapplication of Tenant Security Deposits. Any misapplication, misappropriation, or failure to properly account for or hold tenant security deposits in accordance with applicable law and the requirements of the Loan Documents. As of the date hereof, the aggregate amount of tenant security deposits held in connection with the Properties is approximately Four Million Two Hundred Eighty-Three Thousand and No/100 Dollars ($4,283,000.00);
(c) Waste. The commission of waste on or with respect to any Property, whether by act or omission, including, without limitation, the material damage, destruction, or impairment of any Property (other than damage or destruction resulting from a casualty covered by insurance maintained in accordance with the Loan Documents);
(d) Removal or Disposal of Property. Any removal, disposal, demolition, or material alteration of any portion of any Property (including, without limitation, any fixtures, equipment, or personal property constituting part of the collateral for the Loans) after the occurrence and during the continuance of a default under the Loan Documents, except as may be required by applicable law or as expressly permitted under the Loan Documents;
(e) Failure to Pay Taxes and Assessments. The failure of any Borrower to pay real property taxes, assessments, water and sewer charges, ground rent (if any), or other governmental charges or impositions when due and payable with respect to any Property, to the extent such amounts are not being paid from escrow or impound accounts held by Lender pursuant to the Loan Documents;
(f) Environmental Matters. Any breach by any Borrower of any environmental covenant, representation, or warranty set forth in the Loan Documents or in the Environmental Indemnity Agreement dated as of September 15, 2020, executed in connection with the Loans (the "Environmental Indemnity Agreement"), including, without limitation, any release, discharge, or disposal of hazardous substances on, at, under, or from any Property in violation of applicable environmental laws;
(g) Failure to Maintain Insurance. The failure of any Borrower to obtain and maintain the insurance coverages required under the Loan Documents, including, without limitation, property insurance, general liability insurance, flood insurance (where applicable), terrorism insurance, and any other insurance required by the Loan Agreement or the Mortgages; and
(h) Enforcement Costs. Any and all fees, costs, expenses, liabilities, and disbursements (including reasonable attorneys' fees and costs of investigation) incurred by Lender in connection with the enforcement or attempted enforcement of any of the Loan Documents, to the extent such amounts are not reimbursed by the Borrowers within thirty (30) days following Lender's written demand therefor.
For the avoidance of doubt, Guarantor's liability under this Section 2.2 shall be limited to the actual amount of Losses incurred by Lender as a result of the applicable Limited Recourse Carve-Out Event and shall not extend to the entire outstanding principal balance of the Loans (except to the extent that such Limited Recourse Carve-Out Event also constitutes or triggers a Full Recourse Event under Section 2.1).
SECTION 3 — GUARANTY TERMS
3.1 Absolute and Unconditional Guaranty.
This Guaranty is and shall be deemed to be an absolute, unconditional, and irrevocable guaranty. The obligations of Guarantor hereunder are independent of the obligations of the Borrowers under the Loan Documents, are primary obligations, and are not secondary or contingent in any respect. The liability of Guarantor under this Guaranty shall not be subject to diminution, reduction, discharge, impairment, or release by reason of any counterclaim, setoff, recoupment, defense, or other right that any Borrower may have against Lender or that Guarantor may have against any Borrower. Guarantor acknowledges and agrees that its liability hereunder is not conditioned upon or subject to the genuineness, validity, regularity, or enforceability of any of the Loan Documents, the perfection or priority of any lien or security interest created thereby, or the existence or availability of any other guaranty or security for the Loans.
3.2 Continuing Guaranty.
This Guaranty is a continuing guaranty and shall apply to and cover all present and future Guaranteed Obligations arising under or in connection with the Loan Documents from and after the date hereof, regardless of whether any or all of such Guaranteed Obligations are outstanding at any particular time. This Guaranty shall remain in full force and effect until the earlier of (a) the date on which all of the Loans have been indefeasibly paid in full in cash, all obligations under the Loan Documents have been fully satisfied, performed, and discharged, and all Loan Documents have been terminated and released of record, and (b) the date on which Lender executes and delivers a written release of Guarantor's obligations hereunder. No termination, cancellation, or discharge hereof shall affect obligations or liabilities of Guarantor incurred or arising prior to such termination, cancellation, or discharge, or with respect to Recourse Carve-Out Events that occurred (or, with respect to environmental matters, arose) prior to such date.
3.3 Joint and Several Liability.
If Guarantor at any time consists of more than one (1) person or entity (whether by reason of a merger, reorganization, or otherwise), the obligations of each such person or entity under this Guaranty shall be joint and several. As of the date hereof, Guarantor is a single entity, and this Section 3.3 is included for the avoidance of doubt and to address any future circumstances in which Guarantor's obligations may be assumed by or allocated among multiple persons or entities.
3.4 Guaranty of Payment and Not of Collection.
This Guaranty is a guaranty of payment and performance and not merely a guaranty of collection. Lender shall not be required to (a) pursue or exhaust any remedies against any Borrower, (b) foreclose upon or otherwise realize upon or enforce any Mortgage, lien, or security interest encumbering any Property, (c) proceed against or exhaust any other security or collateral held for the Loans, (d) pursue or exhaust any remedies against any other guarantor, surety, or obligor, or (e) take any other action or exercise any other right or remedy available to Lender, in each case before exercising any right or remedy against Guarantor under this Guaranty. Lender may maintain an action on this Guaranty regardless of whether any action is brought against any Borrower or any other person or entity or whether any Borrower or any such other person or entity is joined in any such action.
SECTION 4 — WAIVERS BY GUARANTOR
4.1 General Waivers.
Guarantor hereby unconditionally and irrevocably waives, to the fullest extent permitted by applicable law:
(a) notice of acceptance of this Guaranty by Lender;
(b) notice of any advance, loan, extension of credit, or other financial accommodation made or extended under or in connection with the Loan Documents, whether now existing or hereafter arising;
(c) presentment, demand for payment, protest, notice of protest, and notice of dishonor or nonpayment of any obligation guaranteed hereby;
(d) any right to require Lender to proceed first against any Borrower, any other guarantor, or any Property or other collateral before pursuing its remedies against Guarantor under this Guaranty;
(e) any right to interpose any defense, counterclaim, or setoff based upon or arising from the principles of suretyship, guarantorship, or similar doctrines, including, without limitation, the right to assert any defense that any Borrower could assert against Lender, any defense based upon the incapacity, lack of authority, or dissolution of any Borrower, any defense based on the failure of Lender to file or enforce a claim in any insolvency or bankruptcy proceeding, and any defense based on the election of remedies by Lender;
(f) any defense based on the adequacy of the consideration received by Guarantor for executing this Guaranty; and
(g) any right to receive notice of any suit, action, or proceeding brought by Lender against any Borrower or any other person or entity, except as may be required by applicable law and cannot be waived.
4.2 Modifications and Extensions.
Guarantor hereby agrees that Lender may, from time to time, without notice to or the consent of Guarantor and without in any manner affecting, impairing, or releasing the obligations of Guarantor hereunder:
(a) amend, modify, supplement, restate, or waive any provision of any Loan Document, including, without limitation, any change in the interest rate, maturity date, payment terms, or principal amount of any Loan;
(b) extend the time for payment or performance of any obligation under any Loan Document, or grant any indulgence, forbearance, or extension;
(c) release, surrender, exchange, substitute, compromise, settle, subordinate, or modify any collateral or security held for any of the Loans, including, without limitation, any Property or any lien thereon;
(d) release any Borrower or any other guarantor, endorser, or surety from any obligation under any Loan Document;
(e) agree to any change in the terms, order, or manner of application of any payments, proceeds, or credits;
(f) accept additional or substitute security or collateral for any of the Loans; and
(g) take any other action or omit to take any action that might, but for the provisions of this Section 4.2, constitute a legal or equitable discharge or defense of a guarantor or surety.
4.3 Bankruptcy Waivers.
Guarantor hereby unconditionally and irrevocably waives any defense arising from or relating to the filing of a petition for relief by or against any Borrower under the Bankruptcy Code or any similar federal or state statute, or the commencement of any receivership, insolvency, reorganization, dissolution, liquidation, or similar proceeding with respect to any Borrower, including, without limitation, any defense based upon the automatic stay, any discharge, any confirmation of a plan of reorganization, any avoidance of a transfer or lien, or any other provision of the Bankruptcy Code or applicable non-bankruptcy law. The obligations of Guarantor under this Guaranty shall survive and remain in full force and effect notwithstanding any such proceeding, and Guarantor's liability hereunder shall not be impaired, modified, released, or discharged by reason of any such proceeding.
SECTION 5 — FINANCIAL COVENANTS OF GUARANTOR
5.1 Minimum Tangible Net Worth.
Guarantor shall maintain at all times during the term of this Guaranty a Tangible Net Worth of not less than Five Hundred Million and No/100 Dollars ($500,000,000.00). Compliance with this Section 5.1 shall be measured as of the last day of each fiscal quarter of Guarantor, in accordance with GAAP applied on a consistent basis in accordance with the definition of Tangible Net Worth set forth in Section 1.12 hereof.
5.2 Minimum Liquid Assets.
Guarantor shall maintain at all times during the term of this Guaranty Liquid Assets of not less than Fifty Million and No/100 Dollars ($50,000,000.00). Compliance with this Section 5.2 shall be measured as of the last day of each fiscal quarter of Guarantor, in accordance with GAAP applied on a consistent basis in accordance with the definition of Liquid Assets set forth in Section 1.6 hereof.
5.3 Reporting Requirements.
(a) Quarterly Financial Statements. Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of each fiscal year of Guarantor (i.e., other than the fourth fiscal quarter), Guarantor shall deliver to Lender an unaudited consolidated balance sheet and consolidated income statement of Guarantor as of and for the period ending on the last day of such fiscal quarter, in each case prepared in accordance with GAAP applied on a consistent basis (subject to normal year-end adjustments and the absence of footnotes), and certified by Guarantor's chief financial officer, Patricia Sung-Calloway, or such other authorized officer as Guarantor may designate in writing to Lender, as fairly presenting in all material respects the financial condition and results of operations of Guarantor as of the date thereof and for the applicable period. Each such delivery shall be accompanied by a completed compliance certificate in substantially the form attached hereto as Exhibit A, demonstrating Guarantor's compliance with the Guarantor Financial Covenants as of the last day of such fiscal quarter.
(b) Annual Financial Statements. Within ninety (90) days after the end of each fiscal year of Guarantor, Guarantor shall deliver to Lender audited consolidated financial statements of Guarantor (including a consolidated balance sheet, consolidated statement of operations, consolidated statement of equity, and consolidated statement of cash flows, together with all notes thereto) for such fiscal year, prepared in accordance with GAAP applied on a consistent basis and audited by Ashford Prewitt LLP or such other nationally recognized independent registered public accounting firm as Guarantor may engage from time to time, accompanied by an unqualified opinion (or an opinion containing only such qualifications as are acceptable to Lender in its reasonable discretion) of such accounting firm. Each such delivery shall be accompanied by a completed compliance certificate in substantially the form attached hereto as Exhibit A, demonstrating Guarantor's compliance with the Guarantor Financial Covenants as of the last day of such fiscal year.
(c) SEC Filings. Guarantor acknowledges that, as a publicly traded company listed on the New York Stock Exchange, it files periodic reports with the United States Securities and Exchange Commission (the "SEC"), including Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K. Lender may, in addition to the financial statements delivered pursuant to Sections 5.3(a) and 5.3(b), reference and rely upon such SEC filings in monitoring Guarantor's financial condition and compliance with the Guarantor Financial Covenants. The delivery obligations set forth in this Section 5.3 shall not be satisfied solely by the filing of such reports with the SEC; provided, however, that if the information required to be delivered pursuant to Sections 5.3(a) and 5.3(b) is substantially identical to the information contained in Guarantor's SEC filings, Guarantor may, in lieu of a separate delivery, provide written notice to Lender identifying the applicable SEC filing and confirming its availability on the SEC's EDGAR system, together with the applicable compliance certificate required hereunder.
5.4 Compliance Certificate.
The form of compliance certificate required to be delivered pursuant to Section 5.3 shall be in substantially the form attached hereto as Exhibit A. Each compliance certificate shall set forth, as of the applicable measurement date, (a) Guarantor's Total Assets, Total Liabilities, and Intangible Assets (each as determined in accordance with GAAP), (b) Guarantor's Tangible Net Worth (calculated as Total Assets minus Total Liabilities minus Intangible Assets), (c) a statement as to whether Guarantor is in compliance with the minimum Tangible Net Worth requirement of $500,000,000.00, (d) Guarantor's Liquid Assets (consisting of unrestricted cash, cash equivalents, and marketable securities), (e) a statement as to whether Guarantor is in compliance with the minimum Liquid Assets requirement of $50,000,000.00, and (f) a certification by an authorized officer of Guarantor that, as of the applicable measurement date, Guarantor is in compliance with all Guarantor Financial Covenants set forth in this Section 5, or, if Guarantor is not in compliance, a detailed description of each such non-compliance and the actions being taken or proposed to be taken by Guarantor to cure such non-compliance.
5.5 Breach of Financial Covenants.
A breach by Guarantor of any Guarantor Financial Covenant set forth in this Section 5 (including, without limitation, any failure to satisfy the minimum Tangible Net Worth requirement or the minimum Liquid Assets requirement, or any failure to deliver the financial statements or compliance certificates required under Section 5.3 within the time periods specified therein) that is not cured within thirty (30) days after written notice from Lender to Guarantor specifying such breach in reasonable detail shall constitute a default under this Guaranty. A default under this Guaranty arising solely from a breach of the Guarantor Financial Covenants shall not, by itself, constitute an event of default under the Loan Agreement or the other Loan Documents unless the Loan Agreement expressly so provides; provided, however, that nothing in this Section 5.5 shall limit Lender's remedies under this Guaranty, including, without limitation, Lender's right to seek specific performance of Guarantor's obligations hereunder.
SECTION 6 — REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Guarantor hereby represents and warrants to Lender, as of the date hereof, as follows:
6.1 Organization and Authority.
Guarantor is a Maryland real estate investment trust, duly organized, validly existing, and in good standing under the laws of the State of Maryland. Guarantor is duly qualified or registered to do business and is in good standing in each jurisdiction in which the ownership of its properties or the nature of its business requires such qualification or registration, except where the failure to be so qualified or registered would not have a material adverse effect on Guarantor's ability to perform its obligations under this Guaranty. Guarantor has full power and authority to execute, deliver, and perform its obligations under this Guaranty and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Guaranty have been duly authorized by all necessary action on the part of Guarantor, including all necessary approvals of Guarantor's board of trustees, and no further action, consent, or approval of any person or entity (including, without limitation, any trustee, shareholder, member, partner, or other equity holder of Guarantor, or any governmental authority) is required in connection therewith.
6.2 Enforceability. This Guaranty has been duly executed and delivered by Guarantor and constitutes the legal, valid, and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and other similar laws affecting creditors' rights generally, and subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).
6.3 No Conflict.
The execution and delivery of this Guaranty by Guarantor, and the performance by Guarantor of its obligations hereunder, do not and will not (a) violate or conflict with Guarantor's declaration of trust, bylaws, or other governing documents, (b) violate or conflict with any law, statute, regulation, rule, order, writ, injunction, judgment, or decree of any governmental authority applicable to Guarantor, (c) result in a breach of, or constitute a default under, any material agreement, instrument, indenture, mortgage, deed of trust, credit facility, or other contract to which Guarantor is a party or by which Guarantor or any of its properties may be bound, or (d) result in the creation or imposition of any lien, charge, or encumbrance upon any of the assets of Guarantor (other than as contemplated by the Loan Documents).
6.4 No Litigation.
No action, suit, litigation, proceeding, arbitration, or governmental investigation is pending, or, to Guarantor's knowledge after reasonable inquiry, threatened in writing against Guarantor or any of its properties or assets that (a) would reasonably be expected to have a material adverse effect on Guarantor's financial condition or ability to perform its obligations under this Guaranty, or (b) challenges the validity or enforceability of this Guaranty or any of the transactions contemplated hereby.
6.5 Financial Condition.
The financial statements of Guarantor previously delivered to Lender in connection with the Consent, including those financial statements demonstrating Guarantor's compliance with the Guarantor Financial Covenants (consisting of the audited consolidated financial statements of Guarantor for the fiscal year ended December 31, 2023, and the unaudited consolidated financial statements of Guarantor for the fiscal quarter ended March 31, 2024), are true, correct, and complete in all material respects and fairly present the financial condition and results of operations of Guarantor as of the dates thereof and for the periods covered thereby, in each case prepared in accordance with GAAP applied on a consistent basis. Since the date of the most recent financial statements delivered to Lender, there has been no material adverse change in the financial condition, business, operations, prospects, or assets of Guarantor. As of the date hereof, Guarantor satisfies the minimum Tangible Net Worth requirement of Five Hundred Million and No/100 Dollars ($500,000,000.00) and the minimum Liquid Assets requirement of Fifty Million and No/100 Dollars ($50,000,000.00) set forth in Section 5 hereof.
6.6 REIT Status.
Guarantor has duly elected to be treated as a "real estate investment trust" within the meaning of Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the "Code"), and currently qualifies as a real estate investment trust under the Code. Guarantor intends to continue to operate in a manner that will preserve its qualification as a real estate investment trust. Guarantor's common shares of beneficial interest are publicly listed and traded on the New York Stock Exchange under the ticker symbol "FREIT." Guarantor is subject to the reporting requirements of the Securities Exchange Act of 1934, as amended, and timely files all reports required thereunder.
6.7 No Default.
As of the date hereof, no event of default or default exists under any of the Loan Documents, and no event has occurred and no condition exists that, with the giving of notice or the passage of time, or both, would constitute an event of default or default under any of the Loan Documents. To Guarantor's knowledge, each Borrower is in compliance with all covenants and agreements set forth in the Loan Documents.
SECTION 7 — COVENANTS OF GUARANTOR
Guarantor hereby covenants and agrees with Lender as follows:
7.1 Maintenance of Existence.
Guarantor shall at all times during the term of this Guaranty maintain its existence, status, and good standing as a Maryland real estate investment trust under the laws of the State of Maryland. Guarantor shall not dissolve, liquidate, merge, consolidate with, or convert into any other entity, or sell, transfer, or otherwise dispose of all or substantially all of its assets, without the prior written consent of Lender; provided, however, that Guarantor may merge or consolidate with another entity or transfer all or substantially all of its assets to another entity so long as (a) the surviving or resulting entity or transferee expressly assumes all of Guarantor's obligations under this Guaranty pursuant to an assumption agreement in form and substance reasonably satisfactory to Lender, (b) the surviving or resulting entity or transferee satisfies the Guarantor Financial Covenants as of the effective date of such transaction, and (c) no event of default exists under this Guaranty or the Loan Documents immediately before or immediately after giving effect to such transaction.
7.2 Compliance with Laws.
Guarantor shall comply in all material respects with all applicable federal, state, and local laws, statutes, rules, regulations, ordinances, codes, orders, writs, judgments, and decrees, including, without limitation, all applicable securities laws, tax laws, environmental laws, and REIT qualification requirements.
7.3 Notice of Default.
Guarantor shall promptly, and in any event within five (5) business days, notify Lender in writing of the occurrence of (a) any event that constitutes, or with the giving of notice or the passage of time, or both, would reasonably be expected to constitute, a breach of Guarantor's obligations under this Guaranty, including, without limitation, any breach or anticipated breach of the Guarantor Financial Covenants, (b) any Recourse Carve-Out Event, (c) any material litigation, proceeding, or governmental investigation pending or threatened in writing against Guarantor, or (d) any material adverse change in the financial condition or business of Guarantor. All such notices shall be delivered to Lender in accordance with Section 12.4 hereof, with a copy simultaneously delivered to Lender's counsel, Whitfield & Archer LLP, Attention: Sandra Whitfield, 717 Texas Avenue, Suite 2500, Houston, Texas 77002.
7.4 Books and Records.
Guarantor shall maintain proper books of account and records relating to its financial condition, business, and operations in accordance with GAAP applied on a consistent basis, and shall permit Lender and its authorized representatives, at reasonable times and upon reasonable prior notice, to examine, audit, and make copies of such books and records to the extent reasonably necessary to monitor Guarantor's compliance with this Guaranty.
7.5 Further Assurances.
Guarantor shall, from time to time, at the request of Lender, execute and deliver, or cause to be executed and delivered, such additional documents, instruments, certificates, and agreements, and take such further actions, as Lender may reasonably request to carry out the purposes of this Guaranty and to more fully evidence and effectuate the guaranty and the obligations set forth herein.
SECTION 8 — REMEDIES
8.1 Rights Upon Default.
Upon the occurrence of any Recourse Carve-Out Event or any breach or default under this Guaranty (including, without limitation, a breach of the Guarantor Financial Covenants that remains uncured following the expiration of the cure period set forth in Section 5.5), Lender may exercise any and all rights and remedies available to it under this Guaranty, the Loan Documents, and applicable law, whether at law or in equity, including, without limitation, bringing an action directly against Guarantor for the payment and performance of the Guaranteed Obligations without first (a) commencing any action or proceeding against any Borrower, (b) foreclosing upon, selling, or otherwise realizing upon any Property or any other collateral securing the Loans, or (c) pursuing any other remedy available to Lender against any Borrower, any other guarantor, or any other person or entity.
8.2 Cumulative Remedies.
All rights and remedies of Lender under this Guaranty are cumulative and are in addition to, and not in lieu of, any and all other rights and remedies available to Lender under the Loan Documents, at law, or in equity. The exercise of any one right or remedy by Lender shall not preclude the simultaneous or subsequent exercise of any other right or remedy. No delay or omission by Lender in exercising any right or remedy shall operate as a waiver thereof or of any other right or remedy, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy.
8.3 Costs and Expenses.
Guarantor shall pay to Lender on demand all reasonable costs and expenses (including, without limitation, reasonable attorneys' fees, paralegal fees, expert witness fees, court costs, and other costs of investigation and litigation) actually incurred by Lender in connection with the enforcement, protection, or preservation of Lender's rights under this Guaranty, whether or not any action, suit, or proceeding is commenced, including, without limitation, all such costs and expenses incurred in connection with any bankruptcy, insolvency, reorganization, or similar proceeding involving Guarantor or any Borrower. The obligations of Guarantor under this Section 8.3 shall survive the termination of this Guaranty and the repayment of the Loans.
SECTION 9 — SUBORDINATION
Guarantor hereby subordinates any and all rights of subrogation, reimbursement, indemnification, exoneration, contribution, or any other claim that Guarantor may now have or hereafter acquire against any Borrower, any other guarantor, or any other person or entity, or against any collateral or security held for the payment of any of the obligations under the Loan Documents, in each case arising from the existence, payment, performance, or enforcement of Guarantor's obligations under this Guaranty. Guarantor agrees that it shall not exercise any such right, and shall not seek or receive any payment or distribution from or on account of any Borrower, whether in cash, property, by setoff, or otherwise, on account of any such claim until all of the Loans have been indefeasibly paid in full in cash, all obligations under the Loan Documents have been fully satisfied, performed, and discharged, and all Loan Documents have been terminated and released of record. If, notwithstanding the foregoing, any payment or distribution is received by Guarantor on account of any such claim prior to the satisfaction of the foregoing conditions, such payment or distribution shall be held in trust for the benefit of Lender and shall be promptly paid over to Lender for application against the obligations under the Loan Documents in such order and manner as Lender may determine in its sole discretion.
SECTION 10 — RELEASE OF ORIGINAL GUARANTOR
Upon the simultaneous occurrence of each of the following conditions: (a) the execution and delivery of this Guaranty by Guarantor, (b) the acceptance of this Guaranty by Lender, (c) the delivery of the Consent by Lender, and (d) the closing of the Transfer:
(i) the Original Guaranty dated as of September 15, 2020, executed by Greystone Meridian Partners Fund III, L.P., in favor of Lender, shall automatically and immediately terminate and be of no further force or effect;
(ii) Greystone Meridian Partners Fund III, L.P. (EIN: 83-1647205) and its general partner, Greystone Meridian Capital LLC, shall be fully, unconditionally, and irrevocably released and discharged from any and all obligations, liabilities, claims, demands, damages, costs, expenses, and causes of action of every kind and nature, whether known or unknown, whether now existing or hereafter arising, under or in connection with the Original Guaranty; and
(iii) this Guaranty shall constitute the sole and exclusive carve-out guaranty in connection with the Loans, and all references in the Loan Documents to the "Carve-Out Guaranty" or "Guaranty" shall be deemed to refer to this Replacement Carve-Out Guaranty.
Lender hereby confirms that, effective as of the closing of the Transfer, the Original Guarantor has no further obligations, duties, or liabilities under the Original Guaranty or any of the Loan Documents, and Lender shall have no further recourse against the Original Guarantor or its general partner thereunder.
SECTION 11 — ENVIRONMENTAL INDEMNITY
Reference is made to the Environmental Indemnity Agreement dated as of September 15, 2020 (the "Environmental Indemnity Agreement"), executed in connection with the origination of the Loans. Guarantor hereby agrees, as of the date hereof, to be bound by the Environmental Indemnity Agreement as replacement indemnitor in place of the Original Guarantor, with the same force and effect as if Guarantor had originally executed and delivered the Environmental Indemnity Agreement. Guarantor's obligations as replacement indemnitor under the Environmental Indemnity Agreement shall be in addition to, and not in limitation of, the environmental-related obligations set forth in Section 2.2(f) of this Guaranty.
Guarantor acknowledges and agrees that its environmental indemnity obligations under the Environmental Indemnity Agreement and this Section 11 are separate and apart from the Recourse Carve-Out Events described in Section 2 hereof, are not subject to the limitations on recourse set forth in the Loan Documents, and shall survive the repayment in full of the Loans and the termination of the Loan Documents.
Guarantor further acknowledges that, based on the Phase I Environmental Site Assessments conducted by Trident Environmental Group LLC in connection with the origination of the Loans, two (2) of the eight (8) Properties securing the Loans — specifically, the Westlake Distribution Hub (Loan 1-C) and Lakeland Crossings Industrial (Loan 1-F) — had de minimis recognized environmental conditions identified therein. No Phase II Environmental Site Assessment was required or recommended by Trident Environmental Group LLC with respect to such conditions, and Lender has not required any further environmental investigation as a condition to the Consent or the execution of this Guaranty. Notwithstanding the foregoing, Guarantor's indemnity obligations under the Environmental Indemnity Agreement and this Section 11 shall extend to all environmental matters affecting any of the Properties, including, without limitation, any conditions identified in the Phase I Environmental Site Assessments.
SECTION 12 — MISCELLANEOUS PROVISIONS
12.1 Governing Law.
This Guaranty shall be governed by, construed, and enforced in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of New York. The parties acknowledge that the governing law of this Guaranty is consistent with the governing law of the Master Loan Agreement and the Purchase Agreement.
12.2 Jurisdiction and Venue.
Guarantor hereby irrevocably and unconditionally (a) submits to the exclusive jurisdiction of the courts of the State of New York sitting in the County of New York and the United States District Court for the Southern District of New York, and any appellate courts having jurisdiction of appeals from any of the foregoing, for the purpose of any action, suit, or proceeding arising out of or relating to this Guaranty, (b) agrees that all claims in respect of any such action, suit, or proceeding shall be heard and determined in such courts, (c) waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any such action, suit, or proceeding in any such court, and (d) waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of any such action, suit, or proceeding in any such court. Guarantor agrees that a final judgment in any such action, suit, or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
12.3 Waiver of Jury Trial.
EACH OF GUARANTOR AND LENDER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS GUARANTY, THE LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO THE OTHER PARTY'S ENTERING INTO THIS GUARANTY AND THAT EACH PARTY HAS BEEN REPRESENTED BY COUNSEL IN CONNECTION HEREWITH.
12.4 Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted to be given under this Guaranty shall be in writing and shall be deemed to have been duly given if (a) delivered in person, (b) sent by a nationally recognized overnight courier service (such as Severin Partners LLC or Halcyon Partners LLC), or (c) sent by United States certified mail, return receipt requested, postage prepaid, addressed as follows (or to such other address as a party may designate by written notice to the other parties hereto):
If to Guarantor:
Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
Attention: David Elgin Park, General Counsel
Telephone: (410) 555-7200
With a copy to (which shall not constitute notice):
Calderwood & Harkness LLP 450 Park Avenue, 28th Floor New York, New York 10022
Attention: Douglas Fairchild
Telephone: (212) 555-4500
If to Lender:
Pinnacle Federal Bank, N.A. 600 Travis Street, Suite 4400 Houston, Texas 77002
Attention: Bradley Carston, Senior Vice President
Telephone: (713) 555-6000
With a copy to (which shall not constitute notice):
Whitfield & Archer LLP 717 Texas Avenue, Suite 2500 Houston, Texas 77002
Attention: Sandra Whitfield
Telephone: (713) 555-2500
Notices delivered in person shall be deemed given upon receipt. Notices sent by overnight courier shall be deemed given on the next business day following deposit with the courier. Notices sent by certified mail shall be deemed given on the third (3rd) business day following deposit in the United States mail.
12.5 Amendments and Waivers.
No amendment, modification, supplement, or waiver of any provision of this Guaranty shall be effective unless it is set forth in a writing executed and delivered by both Guarantor and Lender. No waiver of any breach of or default under this Guaranty shall be deemed a waiver of any other or subsequent breach or default. No failure or delay on the part of Lender in exercising any right, power, or privilege under this Guaranty shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege.
12.6 Severability. If any provision of this Guaranty is held to be invalid, illegal, or unenforceable by any court of competent jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Guaranty, and the remaining provisions shall continue in full force and effect. To the extent permitted by applicable law, the parties hereby waive any provision of law that renders any provision of this Guaranty invalid, illegal, or unenforceable in any respect.
12.7 Assignment. Lender may, at any time, assign or transfer its rights and obligations under this Guaranty, in whole or in part, in connection with any sale, transfer, assignment, or participation of the Loans or any interest therein, without the consent of Guarantor. Upon any such assignment or transfer, the assignee or transferee shall be entitled to all of the rights and benefits of Lender under this Guaranty to the extent of the interest assigned or transferred. Guarantor may not assign or delegate its obligations under this Guaranty, in whole or in part, without the prior written consent of Lender, which consent may be withheld in Lender's sole and absolute discretion. Any attempted assignment by Guarantor without such consent shall be null, void, and of no force or effect.
12.8 Successors and Assigns.
This Guaranty shall be binding upon Guarantor and its successors and assigns (to the extent permitted hereunder) and shall inure to the benefit of Lender and its successors and permitted assigns. All references herein to "Guarantor" shall be deemed to include the successors and assigns of Guarantor (to the extent permitted hereunder), and all references herein to "Lender" shall be deemed to include the successors and assigns of Lender.
12.9 Entire Agreement.
This Guaranty, together with the Loan Documents and the Consent, constitutes the entire agreement between Guarantor and Lender with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, representations, warranties, and understandings between the parties with respect thereto, including, without limitation, the Original Guaranty, which is hereby superseded and replaced in its entirety by this Guaranty.
12.10 Counterparts. This Guaranty 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. Delivery of an executed counterpart of this Guaranty by facsimile, portable document format (.pdf), electronic signature (including Brightwater Software or similar electronic signature platforms), or other electronic transmission shall be equally as effective as delivery of an original executed counterpart. Each party agrees that the electronic signatures appearing on this Guaranty or any counterpart hereof shall have the same force and effect as original manual signatures, and each party hereby waives any objection to the admissibility or enforceability of this Guaranty based on the use of electronic signatures.
12.11 Headings. The section headings and captions contained in this Guaranty are for convenience of reference only and shall not affect the construction, interpretation, or meaning of this Guaranty.
12.12 No Third-Party Beneficiaries.
This Guaranty is made and entered into for the sole benefit of Lender and its successors and assigns. No other person or entity (including, without limitation, any Borrower, the Original Guarantor, or any tenant, creditor, or other third party) shall have any right, benefit, priority, claim, or interest under, or by virtue of, this Guaranty, and no such person or entity is intended to be, or shall be deemed to be, a third-party beneficiary of this Guaranty.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, Guarantor has executed and delivered this Replacement Carve-Out Guaranty as of the date first set forth above.
GUARANTOR:
FAIRWATER REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust
By: ________
Name: Marcus Devereaux
Title: Executive Vice President, Acquisitions
Date: June 6, 2024
Attested/Acknowledged:
By: ________
Name: David Elgin Park
Title: General Counsel, Secretary
EIN: 52-2198437
Address: 7200 Chesapeake Parkway, Suite 1100, Columbia, Maryland 21044
ACCEPTED AND AGREED:
PINNACLE FEDERAL BANK, N.A., a national banking association