REPLACEMENT CARVE-OUT GUARANTY
(Loans 2-A, 2-B, 2-C, and 2-D)
Execution Version
Dated as of June 6, 2024
by
FAIRWATER REAL ESTATE INVESTMENT TRUST a Maryland real estate investment trust
as Guarantor
in favor of
VELTRANO CAPITAL LENDING CORP. a Delaware corporation
as Lender
Aggregate Outstanding Principal Balance: $142,300,000
Interest Rate: Fixed 4.68% per annum
Maturity Date: March 1, 2029
TABLE OF CONTENTS
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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"), with its principal offices at 7200 Chesapeake Parkway, Suite 1100, Columbia, Maryland 21044 (EIN: 52-2198437; NYSE: FREIT), in favor of VELTRANO CAPITAL LENDING CORP., a Delaware corporation ("Lender"), with offices at 200 South Biscayne Boulevard, Suite 3100, Miami, Florida 33131.
RECITALS
A. The Loan Agreement and Loans. Lender and (i) GMP Buckhead LLC, a Delaware limited liability company (EIN: 84-2639901), (ii) GMP SouthPark LLC, a Delaware limited liability company (EIN: 84-2639918), (iii) GMP Cool Springs LLC, a Delaware limited liability company (EIN: 84-2639925), and (iv) GMP Brickell LLC, a Delaware limited liability company (EIN: 84-2639932) (each, a "Borrower" and collectively, the "Borrowers"), are parties to that certain Loan Agreement dated as of February 1, 2021 (as heretofore amended, supplemented, restated, or otherwise modified from time to time, the "Loan Agreement"), pursuant to which Lender extended four individual loans to the Borrowers designated as Loan 2-A, Loan 2-B, Loan 2-C, and Loan 2-D (collectively, the "Loans"). As of February 28, 2024, the aggregate outstanding principal balance of the Loans was One Hundred Forty-Two Million Three Hundred Thousand and No/100 Dollars ($142,300,000.00). The Loans bear interest at a fixed rate of four and sixty-eight hundredths percent (4.68%) per annum and mature on March 1, 2029. Each Loan is secured by the respective real property and improvements owned by the applicable Borrower, as more particularly described in Exhibit B attached hereto (each, a "Property" and collectively, the "Properties").
B. The Properties. The Properties securing the Loans consist of the following four Class A office properties located in the southeastern United States:
(i) Loan 2-A: Buckhead Place Office Tower, a Class A office tower containing approximately 285,000 rentable square feet ("RSF"), located at 3380 Peachtree Road NE, Atlanta, Georgia 30326, built in 2018, owned by GMP Buckhead LLC;
(ii) Loan 2-B: SouthPark Corporate Center, a Class A office campus containing approximately 218,000 RSF, located at 6200 Fairview Road, Charlotte, North Carolina 28210, built in 2017, owned by GMP SouthPark LLC;
(iii) Loan 2-C: Cool Springs Office Park, a Class A suburban office park containing approximately 196,000 RSF, located at 5000 Virginia Way, Brentwood, Tennessee 37027, built in 2016, owned by GMP Cool Springs LLC; and
(iv) Loan 2-D: Brickell Bay Office Building, a Class A office building containing approximately 152,000 RSF, located at 1450 Brickell Avenue, Miami, Florida 33131, built in 2019, owned by GMP Brickell LLC.
The Properties comprise, in the aggregate, approximately 851,000 RSF of office space.
C. Prior Guaranty. In connection with the origination of the Loans and the execution and delivery of the Loan Agreement, Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership (EIN: 83-1647205) (the "Prior Guarantor"), whose general partner is Greystone Meridian Capital LLC, a Delaware limited liability company, having its registered agent address at 1209 Orange Street, Wilmington, Delaware 19801, and its principal office at 3300 Peachtree Road NE, Suite 2200, Atlanta, Georgia 30326, executed and delivered in favor of Lender that certain Carve-Out Guaranty dated as of February 1, 2021 (the "Prior Guaranty"), pursuant to which the Prior Guarantor guaranteed certain recourse carve-out obligations of the Borrowers under the Loan Agreement and the other Loan Documents.
D. Change of Control and Lender Consent. Pursuant to that certain Purchase and Sale Agreement dated as of February 28, 2024 (the "PSA"), by and between the Prior Guarantor, as seller ("Seller"), and Guarantor, as buyer ("Buyer"), Guarantor has agreed to acquire, and the Prior Guarantor has agreed to sell, transfer, and convey to Guarantor, one hundred percent (100%) of the membership interests in each of the Borrowers. Such transfer of membership interests constitutes a change of control of the Borrowers under the Loan Agreement. Lender has consented to such change of control pursuant to that certain Lender Consent Letter dated May 17, 2024 (the "Lender Consent Letter"), and the parties have entered into that certain Assumption Agreement of even date herewith (the "Assumption Agreement"), pursuant to which, among other things, Guarantor has agreed to assume certain obligations under the Loan Documents. As a condition to Lender's consent to the change of control, Lender has required the delivery by Guarantor of this Replacement Carve-Out Guaranty in substitution for and replacement of the Prior Guaranty. In connection with Lender's consent, a consent fee of Seven Hundred Eleven Thousand Five Hundred and No/100 Dollars ($711,500.00), calculated as fifty basis points (0.50%) of the aggregate outstanding principal balance of $142,300,000.00, has been paid to Lender, which consent fee was borne equally by Buyer and Seller pursuant to the PSA, with Buyer's share being $355,750.00 and Seller's share being $355,750.00. Upon effectiveness of this Guaranty, the Prior Guaranty shall be released and terminated and the Prior Guarantor shall have no further obligations thereunder, all as more particularly set forth in Section 11 hereof.
E. Guarantor. Guarantor is Fairwater Real Estate Investment Trust, a Maryland real estate investment trust, publicly traded on the New York Stock Exchange under the ticker symbol "FREIT," with a market capitalization of approximately Four Billion Eight Hundred Million Dollars ($4,800,000,000) as of the fourth fiscal quarter of 2023. Guarantor represents that it has the financial capacity and net worth sufficient to satisfy the financial covenants and other obligations set forth herein, and is delivering this Guaranty to induce Lender to consent to the change of control of the Borrowers and the release of the Prior Guarantor from the Prior Guaranty.
NOW, THEREFORE, in consideration of the foregoing premises 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 such terms in the Loan Agreement.
"Borrowers" means, collectively, GMP Buckhead LLC, a Delaware limited liability company, GMP SouthPark LLC, a Delaware limited liability company, GMP Cool Springs LLC, a Delaware limited liability company, and GMP Brickell LLC, a Delaware limited liability company, and each individually, a "Borrower."
"Guaranteed Obligations" means the full recourse carve-out obligations of Guarantor as described and set forth in Section 2 of this Guaranty, including, without limitation, all Loss Guaranty Obligations (as defined in Section 2.1), all Springing Recourse Obligations (as defined in Section 2.2), and all Environmental Indemnity Obligations (as defined in Section 2.3).
"Liquid Assets" means, as of any date of determination, the sum of (a) unrestricted cash and cash equivalents held by Guarantor, (b) marketable securities (valued at fair market value) owned by Guarantor that are listed on a national securities exchange or quoted on a nationally recognized quotation service, and (c) undrawn amounts available under committed, unsecured revolving credit facilities of Guarantor, including, without limitation, the $750,000,000 unsecured revolving credit facility provided by Aldgate National Bank, N.A., as administrative agent, dated as of August 14, 2022 (as the same may be amended, restated, supplemented, extended, or otherwise modified from time to time), to the extent such amounts are available to be drawn by Guarantor without any condition precedent that has not been satisfied. For the avoidance of doubt, Liquid Assets shall not include any restricted cash, escrow deposits, or tenant security deposits held by or on behalf of any Borrower.
"Loan Agreement" means that certain Loan Agreement dated as of February 1, 2021, by and among the Borrowers and Lender, as the same has been and may hereafter be amended, restated, supplemented, or otherwise modified from time to time.
"Loan Documents" means, collectively, (a) the Loan Agreement, (b) the promissory notes evidencing each of Loan 2-A, Loan 2-B, Loan 2-C, and Loan 2-D (collectively, the "Notes"), (c) the mortgages, deeds to secure debt, and deeds of trust, as applicable, encumbering each of the Properties (collectively, the "Security Instruments"), (d) the assignments of leases and rents for each of the Properties, (e) the environmental indemnity agreements for each of the Properties, (f) all UCC financing statements filed in connection with the Loans, (g) the Prior Guaranty (to the extent the same was in effect prior to the date hereof), (h) all other documents, instruments, certificates, and agreements executed and delivered by the Borrowers, the Prior Guarantor, or any other party in connection with the Loans, as more particularly described in Exhibit Q to the PSA and as listed in Exhibit A attached hereto, (i) the Assumption Agreement dated as of June 6, 2024, (j) the Lender Consent Letter dated May 17, 2024, and (k) any and all amendments, modifications, extensions, renewals, replacements, restatements, and supplements to any of the foregoing, including this Guaranty.
"Losses" means any and all losses, damages, costs, expenses (including reasonable attorneys' fees and disbursements), liabilities, claims, actions, suits, proceedings, judgments, penalties, fines, and amounts paid in settlement, in each case, actually incurred or suffered by Lender.
"Net Worth" means, as of any date of determination, the tangible net worth of Guarantor determined in accordance with GAAP (as defined below), which shall be equal to (a) the total assets of Guarantor (excluding goodwill, trademarks, trade names, service marks, copyrights, patents, licenses, and other intangible assets) minus (b) the total liabilities of Guarantor, all as determined on a consolidated basis in accordance with generally accepted accounting principles in the United States of America as in effect from time to time ("GAAP"). For purposes of calculating Net Worth, (i) real property assets shall be valued at their undepreciated book value and (ii) the interests of minority holders in consolidated subsidiaries shall be excluded from total assets.
"Prior Guarantor" means Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership, whose general partner is Greystone Meridian Capital LLC, a Delaware limited liability company.
"Prior Guaranty" means that certain Carve-Out Guaranty dated as of February 1, 2021, executed by the Prior Guarantor in favor of Lender in connection with the Loan Agreement.
"Properties" means, collectively, Buckhead Place Office Tower, SouthPark Corporate Center, Cool Springs Office Park, and Brickell Bay Office Building, each as more particularly described in Exhibit B attached hereto, and each individually, a "Property."
"SPE Requirements" means the single-purpose entity requirements applicable to the Borrowers as set forth in the Loan Agreement, including, without limitation, the requirements that each Borrower (a) not commingle its assets with those of any other person or entity, (b) maintain separate books and records and bank accounts, (c) hold itself out as a separate entity, (d) observe all organizational formalities, (e) not incur indebtedness other than as expressly permitted under the Loan Agreement, (f) maintain at least one independent director or manager, and (g) otherwise comply with such additional requirements as may be specified in the Loan Agreement or the related organizational documents of each Borrower.
All other capitalized terms used in this Guaranty and not otherwise defined herein shall have the respective meanings ascribed to such terms in the Loan Agreement. References to "Sections" are to sections of this Guaranty unless otherwise specified. References to "Exhibits" are to exhibits attached to this Guaranty. The words "herein," "hereof," "hereunder," and words of similar import shall refer to this Guaranty as a whole and not to any particular provision.
SECTION 2 — GUARANTY OF CARVE-OUT OBLIGATIONS
Section 2.1 — Full Recourse Events (Loss Guaranty)
Guarantor hereby absolutely, unconditionally, and irrevocably guarantees to Lender the full and prompt payment and performance of, and agrees to indemnify, defend, and hold harmless Lender from and against, any and all Losses incurred by Lender arising out of or in connection with any of the following acts, events, or circumstances (collectively, the "Loss Guaranty Obligations"):
(a) Fraud or Misrepresentation. Any fraud or intentional misrepresentation by any Borrower, Guarantor, or any of their respective officers, directors, trustees, managers, members, partners, employees, agents, or affiliates in connection with the Loans, the Loan Documents, or any application, certificate, report, financial statement, or other document delivered in connection therewith.
(b) Misapplication or Misappropriation. Any misapplication, misappropriation, conversion, or wrongful withholding of (i) rents, issues, profits, revenue, income, or other amounts derived from any Property and received by or on behalf of any Borrower after the occurrence and during the continuance of an Event of Default under the Loan Agreement, (ii) insurance proceeds payable with respect to any Property or any improvements thereon, (iii) condemnation or eminent domain awards or payments received in connection with any Property, or (iv) tenant security deposits held by or on behalf of any Borrower with respect to any Property. For reference, the aggregate tenant security deposits held across the four Properties as of the date hereof are a portion of the $4,283,000 portfolio-wide total security deposit balance, as allocated among the individual Properties.
(c) Waste. The commission of waste at, on, or with respect to any Property, including, without limitation, the removal, demolition, or material alteration of any improvements constituting part of any Property, the failure to maintain any Property in good order, condition, and repair (subject to reasonable wear and tear), or any act or omission that materially impairs the value, utility, or marketability of any Property.
(d) Criminal Liability. Any act or omission by any Borrower, Guarantor, or any of their respective officers, directors, trustees, managers, members, partners, employees, or agents that results in criminal liability in connection with the ownership, operation, or management of any Property or the Loans.
(e) Failure to Pay Real Property Taxes. Any failure by any Borrower to pay, or cause to be paid, when due (after giving effect to any applicable grace or cure period under the Loan Agreement) any and all real property taxes, assessments, water and sewer charges, and other governmental charges levied, assessed, or imposed upon any Property, to the extent such failure results or could reasonably be expected to result in the imposition of a lien on any Property that is prior to or pari passu with the lien of the applicable Security Instrument. As of the date hereof, the estimated annual real property taxes for the portfolio of Properties are approximately $14,760,000 in the aggregate for the calendar year 2024.
(f) Failure to Maintain Insurance. Any failure by any Borrower to obtain or maintain the insurance coverages required under the Loan Agreement and the other Loan Documents with respect to any Property, including, without limitation, property, casualty, flood, liability, and such other coverages as may be required by the Loan Agreement.
(g) Removal or Disposal of Property. Any removal, disposal, transfer, or conveyance of any portion of any Property (whether real property, improvements, fixtures, or personal property) after the occurrence and during the continuance of an Event of Default under the Loan Agreement, other than dispositions made in the ordinary course of business consistent with past practice and in accordance with the terms of the Loan Documents.
The foregoing Loss Guaranty Obligations of Guarantor shall be obligations of payment and not merely of collection, and Lender may proceed directly against Guarantor for the payment and performance thereof without first pursuing or exhausting any remedy against any Borrower, any Property, or any other collateral or security.
Section 2.2 — Full Recourse Springing Events (Springing Recourse to Full Loan Amount)
Notwithstanding anything to the contrary contained in the Loan Documents, the Loans shall become fully recourse obligations of Guarantor, and Guarantor shall be personally liable for the repayment of the full outstanding principal balance of the Loans, together with all accrued and unpaid interest thereon, and all other sums, amounts, costs, expenses, and obligations due or payable under the Loan Documents (collectively, the "Springing Recourse Obligations"), upon the occurrence of any one or more of the following events or circumstances:
(a) Voluntary Bankruptcy Filing. Any Borrower shall (i) file a voluntary petition in bankruptcy or for reorganization, arrangement, composition, or readjustment of debts under the United States Bankruptcy Code (Title 11 of the United States Code) or any other applicable federal, state, or local law relating to bankruptcy, insolvency, reorganization, or relief of debtors (collectively, "Insolvency Laws"), (ii) consent to or fail to timely contest the filing of a petition against it under any Insolvency Law, (iii) make a general assignment for the benefit of creditors, (iv) admit in writing its inability to pay its debts as they become due, or (v) take any corporate, partnership, limited liability company, or other action in furtherance of any of the foregoing.
(b) Collusive Involuntary Filing. Any Borrower, Guarantor, or any affiliate of any of the foregoing shall collude with, assist, solicit, encourage, or conspire with any third party in connection with the filing of an involuntary petition in bankruptcy or other proceeding under any Insolvency Law against any Borrower, or shall fail to take commercially reasonable steps to cause any such involuntary petition to be dismissed within ninety (90) days after the filing thereof.
(c) Violation of SPE Requirements. Any Borrower shall violate or fail to comply with any of the SPE Requirements set forth in the Loan Agreement or in the organizational documents of such Borrower, whether such violation or failure is material or immaterial.
(d) Unauthorized Transfer. Any Transfer (as such term is defined in the Loan Agreement) of any Property, or of any direct or indirect ownership interest in any Borrower, shall occur without the prior written consent of Lender, including, without limitation, any change of control of any Borrower, any sale, conveyance, pledge, encumbrance, or other disposition of any Property or any interest therein, or any merger, consolidation, or dissolution of any Borrower, in each case, to the extent that such Transfer is not expressly permitted under the Loan Agreement or has not been consented to by Lender in writing.
(e) Unauthorized Subordinate or Mezzanine Debt. Any Borrower, Guarantor, or any affiliate thereof shall incur, assume, or permit to exist any subordinate, junior, secondary, or mezzanine indebtedness, or any preferred equity or similar obligation, that is secured by a lien or encumbrance on any Property (whether junior or pari passu to the lien of the applicable Security Instrument) or by a pledge of or security interest in the direct or indirect membership interests in any Borrower, in each case, without the prior written consent of Lender.
(f) ERISA Violations. Any Borrower or Guarantor shall violate any of the ERISA-related covenants, representations, or warranties set forth in the Loan Agreement, or any Property or any interest therein shall constitute or be deemed to constitute "plan assets" within the meaning of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and the regulations promulgated thereunder.
Upon the occurrence of any Springing Recourse Event described in this Section 2.2, the liability of Guarantor hereunder shall immediately and automatically, without the requirement of any notice, demand, or other action by Lender, extend to and include the full outstanding principal balance of each Loan, together with all accrued and unpaid interest, prepayment premiums (if any), yield maintenance amounts (if any), default interest, late charges, and all other sums, fees, costs, expenses, and amounts due or payable under the Loan Documents, and all Losses incurred by Lender in connection therewith.
Section 2.3 — Environmental Indemnity
Guarantor hereby assumes and unconditionally guarantees the full and prompt payment and performance of all of the Borrowers' obligations under the Environmental Indemnity Agreement(s) executed in connection with the Loan Agreement (collectively, the "Environmental Indemnity Obligations"), including, without limitation, all obligations relating to (a) the investigation, remediation, removal, cleanup, monitoring, and containment of any hazardous substances, hazardous materials, hazardous wastes, toxic substances, pollutants, contaminants, petroleum products, asbestos, polychlorinated biphenyls, lead-based paint, mold, or other regulated substances (collectively, "Hazardous Substances") at, on, under, in, from, or affecting any Property, (b) all response costs, remediation costs, and corrective action costs incurred in connection with any release, threatened release, discharge, or disposal of Hazardous Substances at, on, under, in, from, or affecting any Property, (c) all fines, penalties, and assessments imposed by any governmental authority in connection with any environmental condition at any Property, and (d) all third-party claims, suits, actions, causes of action, judgments, damages, losses, costs, and expenses (including reasonable attorneys' fees and expert consulting fees) arising from the presence, release, or threatened release of Hazardous Substances at, on, under, in, from, or affecting any Property.
For the avoidance of doubt, Phase I Environmental Site Assessments have been conducted for each of the four Properties secured by the Loans. Each of the four Properties (Buckhead Place Office Tower, SouthPark Corporate Center, Cool Springs Office Park, and Brickell Bay Office Building) received a "clean" Phase I ESA with no recognized environmental conditions identified. Certain other properties within Guarantor's broader portfolio (specifically, Westlake Distribution Hub and Lakeland Crossings Industrial) had Phase I ESAs that identified de minimis recognized environmental conditions; however, such properties are not secured by, or related to, the Veltrano Loans and are not among the Properties subject to this Guaranty.
The Environmental Indemnity Obligations of Guarantor hereunder shall survive the satisfaction and discharge of the Loans, the release or reconveyance of the Security Instruments, any foreclosure or deed-in-lieu of foreclosure with respect to any Property, and the termination or expiration of the Loan Documents.
SECTION 3 — NATURE OF GUARANTY
Section 3.1 — Absolute and Unconditional
This Guaranty is and shall be absolute, unconditional, irrevocable, and continuing in nature. The obligations of Guarantor hereunder are independent of the obligations of the Borrowers under the Loan Documents, are not conditioned upon the genuineness, validity, regularity, or enforceability of the Loan Documents, and shall not be affected, modified, diminished, or impaired by any circumstance whatsoever, including, without limitation: (a) any lack of validity or enforceability of any Loan Document or any provision thereof; (b) any amendment, modification, supplement, renewal, extension, or restatement of any Loan Document; (c) any release, subordination, or impairment of any collateral or security for the Loans; (d) any waiver, compromise, settlement, release, or discharge of any obligation of any Borrower or any other person or entity; (e) any change in the corporate, partnership, limited liability company, trust, or other structure, ownership, or control of any Borrower; (f) any defense, set-off, counterclaim, recoupment, or reduction that any Borrower may have or assert against Lender; (g) any bankruptcy, insolvency, reorganization, receivership, dissolution, liquidation, or similar proceeding affecting any Borrower; or (h) any other circumstance that might otherwise constitute a legal or equitable defense available to Guarantor or that might otherwise discharge or limit the liability of a guarantor or surety.
Section 3.2 — Continuing Guaranty
This Guaranty is a continuing guaranty and shall remain in full force and effect until (a) all of the Guaranteed Obligations have been indefeasibly paid and performed in full, (b) all commitments of Lender under the Loan Documents have been terminated, and (c) all Loan Documents have been terminated and all Security Instruments have been released or reconveyed in accordance with their terms. This Guaranty shall survive, and the obligations of Guarantor hereunder shall not be released, terminated, or otherwise affected by, (i) any foreclosure of any Security Instrument, (ii) any deed-in-lieu of foreclosure, (iii) any sale or transfer of any Property pursuant to a power of sale or otherwise, (iv) any other enforcement of remedies by Lender under the Loan Documents, or (v) the appointment of a receiver or trustee for any Borrower or any Property.
Section 3.3 — Guaranty of Payment and Not of Collection
This Guaranty is a guaranty of payment and performance and not of collection. Lender shall not be required, as a condition of Guarantor's liability hereunder, to (a) make any demand upon, or pursue or exhaust any of its rights or remedies against, any Borrower or any other person or entity with respect to the payment or performance of any Guaranteed Obligation, (b) pursue or exhaust any of its rights or remedies with respect to any Property or any other collateral or security for the Loans, or (c) pursue any other remedy in Lender's power whatsoever. Lender shall have the right to proceed directly against Guarantor under this Guaranty in the first instance, without any prior action against any Borrower or any other person or entity and without first foreclosing upon or realizing upon any Property or other collateral, and Guarantor hereby waives any right or defense arising by reason of any requirement that Lender first proceed against any Borrower, any Property, or any other person or entity or exhaust any security before proceeding hereunder.
SECTION 4 — FINANCIAL COVENANTS OF GUARANTOR
Section 4.1 — Minimum Tangible Net Worth
Guarantor covenants and agrees that it shall maintain, at all times during the term of this Guaranty, a tangible Net Worth (as defined in Section 1 hereof) of not less than Five Hundred Million and No/100 Dollars ($500,000,000.00). For purposes of this covenant, Net Worth shall be determined in accordance with GAAP, applied on a consistent basis, as of the end of each fiscal quarter of Guarantor. In the event that Guarantor's tangible Net Worth falls below the minimum threshold specified in this Section 4.1, Guarantor shall promptly notify Lender in writing of such deficiency and shall take all commercially reasonable steps to restore compliance with this covenant within thirty (30) days after the date on which such deficiency first occurs.
Section 4.2 — Minimum Liquid Assets
Guarantor covenants and agrees that it shall maintain, at all times during the term of this Guaranty, Liquid Assets (as defined in Section 1 hereof) of not less than Fifty Million and No/100 Dollars ($50,000,000.00). For purposes of this covenant, Liquid Assets shall be determined as of the end of each fiscal quarter of Guarantor. In the event that Guarantor's Liquid Assets fall below the minimum threshold specified in this Section 4.2, Guarantor shall promptly notify Lender in writing of such deficiency and shall take all commercially reasonable steps to restore compliance with this covenant within thirty (30) days after the date on which such deficiency first occurs.
Section 4.3 — Reporting Requirements
Guarantor shall deliver to Lender, or cause to be delivered to Lender, the following financial information and reports:
(a) Annual Audited Financial Statements. Within one hundred twenty (120) days after the end of each fiscal year of Guarantor, audited annual consolidated financial statements of Guarantor for such fiscal year, prepared in accordance with GAAP, audited by an independent certified public accounting firm of national or regional standing (Guarantor's current independent auditor being Ashford Prewitt LLP, with offices at 1 South Street, Suite 2700, Baltimore, Maryland 21202, engagement partner Martin Ashford, CPA), and including a consolidated balance sheet, consolidated statement of operations, consolidated statement of equity, and consolidated statement of cash flows, together with all notes thereto and the auditor's report thereon.
(b) Quarterly Unaudited Financial Statements. Within sixty (60) days after the end of each of the first three fiscal quarters of each fiscal year of Guarantor (or within sixty (60) days after the end of each fiscal quarter, if audited statements for the fourth quarter have not yet been delivered), unaudited quarterly consolidated financial statements of Guarantor for such fiscal quarter, prepared in accordance with GAAP (subject to normal year-end adjustments and the absence of footnotes), including a consolidated balance sheet, consolidated statement of operations, and consolidated statement of cash flows, certified by Guarantor's Chief Financial Officer as presenting fairly, in all material respects, the financial condition of Guarantor as of the date thereof.
(c) Annual Compliance Certificate. Concurrently with the delivery of the annual audited financial statements described in clause (a) above, and concurrently with the delivery of each quarterly financial statement described in clause (b) above, a Financial Covenant Compliance Certificate substantially in the form attached hereto as Exhibit C, duly executed by Guarantor's Chief Financial Officer (currently Patricia Sung-Calloway) or another authorized officer of Guarantor, certifying Guarantor's compliance with the Net Worth and Liquid Assets covenants set forth in Sections 4.1 and 4.2, and including a computation of such covenants in reasonable detail.
(d) Additional Information. Such other financial information and reports regarding the financial condition, operations, business, and affairs of Guarantor as Lender may reasonably request from time to time.
Notwithstanding the foregoing, inasmuch as Guarantor is a publicly traded real estate investment trust listed on the New York Stock Exchange, Guarantor's periodic reports filed with the U.S. Securities and Exchange Commission (the "SEC"), including, without limitation, its Annual Report on Form 10-K and its Quarterly Reports on Form 10-Q (collectively, "SEC Filings"), shall be deemed to satisfy the reporting requirements set forth in clauses (a) and (b) of this Section 4.3, provided that such SEC Filings are filed with the SEC and made available to Lender within the time periods required by applicable SEC rules and regulations (or, if later, within the time periods specified in clauses (a) and (b) above). The filing of such SEC Filings with the SEC and their public availability on the SEC's EDGAR system shall be deemed delivery to Lender for purposes of this Section 4.3. Notwithstanding the availability of SEC Filings, Guarantor shall remain obligated to deliver the Financial Covenant Compliance Certificate required by clause (c) of this Section 4.3 on the schedule set forth therein.
Section 4.4 — Compliance Representation at Closing
Guarantor hereby represents and warrants to Lender that, as of the date hereof (June 6, 2024):
(a) Guarantor's tangible Net Worth (determined in accordance with GAAP, as described in the definition of "Net Worth" in Section 1 hereof) is in excess of Five Hundred Million and No/100 Dollars ($500,000,000.00), and Guarantor is in compliance with the minimum tangible Net Worth covenant set forth in Section 4.1.
(b) Guarantor's Liquid Assets (determined as described in the definition of "Liquid Assets" in Section 1 hereof) are in excess of Fifty Million and No/100 Dollars ($50,000,000.00), and Guarantor is in compliance with the minimum Liquid Assets covenant set forth in Section 4.2.
(c) Guarantor has the legal authority, power, and capacity to execute, deliver, and perform this Guaranty and all of its obligations hereunder. The execution and delivery of this Guaranty and the consummation of the transactions contemplated hereby have been duly authorized by all necessary trust action of Guarantor, and no further action, consent, or approval is required on the part of Guarantor or any other person or entity.
SECTION 5 — REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Guarantor hereby represents and warrants to Lender as of the date hereof, and such representations and warranties shall be deemed to be continuing representations and warranties during the term of this Guaranty, as follows:
Section 5.1 — Organization and Standing
Guarantor is Fairwater Real Estate Investment Trust, a real estate investment trust duly organized, validly existing, and in good standing under the laws of the State of Maryland. Guarantor has its principal offices at 7200 Chesapeake Parkway, Suite 1100, Columbia, Maryland 21044. Guarantor has the trust power, authority, and legal right to own, lease, and operate its properties and assets and to carry on its business as presently conducted and as proposed to be conducted. Guarantor is duly qualified and authorized to do business and is in good standing in each jurisdiction in which the nature of its business or the ownership, leasing, or operation of its properties requires such qualification, except where the failure to be so qualified or in good standing would not reasonably be expected to have a material adverse effect on Guarantor's ability to perform its obligations under this Guaranty.
Section 5.2 — Authorization
The execution, delivery, and performance of this Guaranty and the consummation of the transactions contemplated hereby have been duly authorized by all necessary trust action of Guarantor, including, without limitation, by resolution of the Board of Trustees of Guarantor, as evidenced by the Secretary's Certificate of even date herewith delivered to Lender concurrently with the execution of this Guaranty. The person or persons executing this Guaranty on behalf of Guarantor are duly authorized to do so and have been authorized by all requisite trust action to execute and deliver this Guaranty and to bind Guarantor to the terms and provisions hereof.
Section 5.3 — 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, liquidation, fraudulent transfer, fraudulent conveyance, and other similar laws of general applicability relating to or affecting creditors' rights generally and to general equitable principles (whether considered in a proceeding in equity or at law).
Section 5.4 — No Conflicts
The execution, delivery, and performance by Guarantor of this Guaranty and the consummation of the transactions contemplated hereby do not and will not (a) conflict with, result in a violation or breach of, or constitute a default under (i) the Declaration of Trust, Bylaws, or other organizational documents of Guarantor, (ii) any law, statute, rule, regulation, ordinance, order, writ, judgment, injunction, decree, or award of any governmental authority applicable to Guarantor, or (iii) any material agreement, contract, indenture, mortgage, deed of trust, loan agreement, note, lease, bond, franchise, license, permit, or other instrument or obligation to which Guarantor is a party or by which Guarantor or any of its properties or assets may be bound, or (b) result in the creation or imposition of any lien, charge, pledge, security interest, or encumbrance upon any property or assets of Guarantor, except as contemplated by the Loan Documents.
Section 5.5 — No Litigation
There is no action, suit, proceeding, claim, arbitration, mediation, or investigation pending or, to Guarantor's knowledge after reasonable inquiry, threatened against or affecting Guarantor, at law or in equity, before or by any court, governmental agency, department, commission, board, bureau, instrumentality, or arbitrator, that (a) challenges the validity or enforceability of this Guaranty or any action taken or to be taken pursuant to or in connection with this Guaranty, or (b) if adversely determined, would reasonably be expected to have a material adverse effect on Guarantor's ability to perform its obligations under this Guaranty or to satisfy its liabilities hereunder as they become due.
Section 5.6 — ERISA
Guarantor is not, and is not acting on behalf of, (a) an "employee benefit plan" (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a "plan" (as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the "Code")) that is subject to Section 4975 of the Code, or (c) an entity whose underlying assets include or are deemed to include "plan assets" (within the meaning of ERISA and the regulations promulgated by the U.S. Department of Labor at 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA) of any such employee benefit plan or plan. None of the assets of Guarantor constitute or will constitute "plan assets" within the meaning of ERISA and the regulations thereunder.
Section 5.7 — No Foreign Person
Guarantor is not a "foreign person" within the meaning of Section 1445(f)(3) of the Code and the Treasury Regulations promulgated thereunder, is not a "foreign partner" within the meaning of Section 1446 of the Code, and is not a "foreign trust" or "foreign estate" within the meaning of Sections 7701(a)(31) and 7701(a)(30)(E) of the Code. Guarantor's United States employer identification number is 52-2198437.
Section 5.8 — OFAC; Anti-Money Laundering
Guarantor is, and at all times during the term of this Guaranty shall remain, in compliance in all material respects with all applicable requirements of the Bank Secrecy Act, the USA PATRIOT Act, and all applicable anti-money laundering laws, rules, and regulations. Neither Guarantor nor, to Guarantor's knowledge, any of its trustees, directors, officers, employees, agents, or affiliates is (a) a person or entity that is listed on the Specially Designated Nationals and blocked Persons List maintained by the Office of Foreign Assets Control of the United States Department of the Treasury ("OFAC"), or any other list of persons or entities with whom dealings are restricted or prohibited under any U.S. sanctions program administered by OFAC, (b) a person or entity that is owned or controlled by, or acts on behalf of, any person or entity described in clause (a), or (c) a person or entity that is located in, organized under the laws of, or a national or resident of any country or territory that is the subject of comprehensive sanctions administered by OFAC.
SECTION 6 — WAIVERS
Section 6.1 — Waivers by Guarantor
Guarantor hereby waives, to the fullest extent permitted by applicable law, each and all of the following:
(a) notice of acceptance of this Guaranty by Lender;
(b) notice of any amendment, modification, supplement, renewal, extension, or restatement of any of the Loan Documents, or the execution and delivery of any new, additional, or supplemental Loan Documents;
(c) presentment for payment, demand of payment, protest, and notice of nonpayment, notice of dishonor, and notice of protest with respect to the Notes, the Loans, or any other Loan Document;
(d) any requirement that Lender exhaust any right, power, or remedy, or proceed against any Borrower or any other person or entity, or against any collateral or security (including, without limitation, any Property or any personal property), before, simultaneously with, or after proceeding against Guarantor under this Guaranty;
(e) any defense arising by reason of the election of remedies by Lender, including, without limitation, any defense based upon an election of remedies that destroys or otherwise adversely affects Guarantor's subrogation rights, Guarantor's rights to proceed against any Borrower for reimbursement, or both;
(f) any defense based upon any statute of limitations in any action under or related to this Guaranty or the Guaranteed Obligations, to the maximum extent permitted by applicable law;
(g) any right to require Lender to marshal assets or to proceed against any particular asset, property, or source of funds before proceeding against Guarantor;
(h) any defense based upon the impairment, diminution, modification, release, or nonperfection of any collateral or security for the Loans, including, without limitation, any Property, or Lender's failure to protect, preserve, or insure any such collateral or security; and
(i) any defense based upon any change in the financial condition, solvency, or net worth of any Borrower or Guarantor, or any other change in the circumstances affecting the ability of any Borrower or Guarantor to perform its obligations under the Loan Documents or this Guaranty.
Section 6.2 — Consents by Guarantor
Guarantor hereby consents and agrees that, without notice to, or further assent or consent of, Guarantor, and without impairing, releasing, reducing, or otherwise affecting the obligations of Guarantor under this Guaranty, Lender may, from time to time, at its sole discretion:
(a) extend the time for payment of, or renew, modify, amend, supplement, restate, or otherwise alter, any or all of the Loan Documents or any of the terms, covenants, or conditions thereof, including, without limitation, increasing or decreasing the rate of interest thereon, extending the maturity date, increasing or decreasing the principal amount of the Loans, or modifying any amortization schedule;
(b) release, compromise, settle with, or grant indulgences to any Borrower, any other guarantor, or any other person or entity liable for the payment or performance of any Guaranteed Obligation or any other obligation under the Loan Documents;
(c) release, surrender, exchange, substitute, compromise, impair, or fail to perfect, protect, or insure any collateral or security for the Loans, including, without limitation, any Property, any assignment of leases and rents, any personal property, or any other collateral or security held by Lender; and
(d) take or refrain from taking any action, exercise or refrain from exercising any right, power, privilege, or remedy, under or in connection with any Loan Document, including, without limitation, the right to foreclose upon any Property, to accept a deed-in-lieu of foreclosure, to seek the appointment of a receiver, or to exercise any other remedy available to Lender.
No exercise or non-exercise by Lender of any right, power, or remedy hereunder, and no single or partial exercise thereof, shall constitute a waiver thereof or preclude any other or further exercise thereof or the exercise of any other right, power, or remedy.
SECTION 7 — EVENTS OF DEFAULT UNDER GUARANTY
The occurrence of any one or more of the following events or circumstances shall constitute an "Event of Default" under this Guaranty:
(a) Failure to Perform Guaranteed Obligations. Guarantor shall fail to pay, perform, or satisfy any Guaranteed Obligation when and as due, whether by acceleration, demand, or otherwise, and such failure shall continue for a period of five (5) business days after written demand therefor by Lender (provided, however, that no notice or cure period shall apply to any Springing Recourse Obligation triggered under Section 2.2);
(b) Breach of Representation or Warranty. Any representation or warranty made by Guarantor in this Guaranty or in any certificate, report, financial statement, or other document delivered by or on behalf of Guarantor in connection with this Guaranty shall prove to have been false, incorrect, or misleading in any material respect when made or deemed to have been made;
(c) Financial Covenant Default. Guarantor shall fail to comply with any financial covenant set forth in Section 4 of this Guaranty (including the minimum tangible Net Worth covenant in Section 4.1 or the minimum Liquid Assets covenant in Section 4.2), and such failure shall continue for a period of thirty (30) days after written notice thereof from Lender to Guarantor specifying such failure;
(d) Guarantor Bankruptcy. Guarantor shall (i) file a voluntary petition in bankruptcy or for reorganization, arrangement, composition, or readjustment of debts under any Insolvency Law, (ii) be the subject of an involuntary petition in bankruptcy or other proceeding under any Insolvency Law that is not dismissed within ninety (90) days after the filing thereof, (iii) consent to or fail to timely contest any such petition or proceeding, (iv) make a general assignment for the benefit of creditors, (v) admit in writing its inability to pay its debts as they become due, (vi) apply for or consent to the appointment of a receiver, trustee, custodian, or liquidator for all or a substantial part of its property, or (vii) take any trust or other action in furtherance of any of the foregoing;
(e) Judgment. A final, non-appealable judgment or order for the payment of money shall be rendered against Guarantor in an amount exceeding Ten Million and No/100 Dollars ($10,000,000.00) individually, or in the aggregate with all other outstanding final judgments against Guarantor, and such judgment or order shall remain unsatisfied, undischarged, unbonded, or unstayed for a period of sixty (60) days after the date on which the right to appeal has expired or has been finally exhausted; or
(f) Material Adverse Change. A material adverse change shall occur in the financial condition, business, operations, properties, or prospects of Guarantor that, in the reasonable judgment of Lender, materially impairs or is reasonably likely to materially impair Guarantor's ability to perform its obligations under this Guaranty or to satisfy its liabilities hereunder as they become due.
SECTION 8 — REMEDIES
Upon the occurrence and during the continuance of an Event of Default under this Guaranty, Lender may, at its option, exercise any and all rights, powers, and remedies available to Lender at law, in equity, or under this Guaranty, the Loan Documents, or any other agreement between Lender and Guarantor, including, without limitation, the right to (a) demand immediate payment from Guarantor of all Guaranteed Obligations then due and owing, (b) institute legal proceedings against Guarantor for the collection of any amounts due under this Guaranty, (c) exercise any rights of set-off or recoupment against any funds or property of Guarantor in the possession or control of Lender, and (d) take such other action as Lender may deem necessary or appropriate to protect and enforce its rights under this Guaranty.
Guarantor shall pay to Lender, upon demand, all reasonable costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements, court costs, expert witness fees, and other costs of litigation or arbitration) incurred by Lender in connection with the enforcement, collection, or protection of any of its rights under this Guaranty, whether or not any action, suit, or proceeding is commenced. Lender's counsel for purposes of the Loans is Cranford McCabe LLP, 100 Southeast Second Street, Suite 3000, Miami, Florida 33131, Attention: Leo Cranford, Partner.
All rights, powers, and remedies of Lender under this Guaranty are cumulative and not exclusive of any other rights, powers, or remedies that Lender may have at law, in equity, or under any other agreement or instrument. No failure or delay by Lender in exercising any right, power, or remedy 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 remedy.
SECTION 9 — SUBORDINATION
Guarantor hereby subordinates any and all indebtedness and other obligations of any Borrower to Guarantor, whether now existing or hereafter arising, and whether arising by loan, advance, contribution, equity investment, subrogation, reimbursement, indemnity, or otherwise (collectively, "Subordinated Claims"), to the prior and indefeasible payment and performance in full of all Guaranteed Obligations. Until all Guaranteed Obligations have been indefeasibly paid and performed in full and all commitments of Lender under the Loan Documents have been terminated, Guarantor shall not (a) demand, accept, or receive any payment, distribution, or other benefit from any Borrower on account of any Subordinated Claim, (b) exercise any right of subrogation, contribution, reimbursement, indemnification, or exoneration against any Borrower or any Property arising out of or in connection with payments made by Guarantor under this Guaranty, (c) commence, prosecute, or participate in any action, suit, or proceeding against any Borrower to collect any Subordinated Claim, or (d) take any action to enforce any security interest, lien, or other right that Guarantor may have in or against any property or assets of any Borrower. If Guarantor receives any payment, distribution, or other benefit in violation of this Section 9, Guarantor shall hold the same in trust for the benefit of Lender and shall promptly deliver the same to Lender for application to the Guaranteed Obligations in such order and manner as Lender may determine.
SECTION 10 — REINSTATEMENT
If at any time any payment or transfer of property made by or on behalf of Guarantor (or by or on behalf of any Borrower or any other person or entity) in respect of any Guaranteed Obligation is rescinded, set aside, invalidated, declared to be fraudulent or preferential, or must be restored or returned by Lender for any reason whatsoever (including, without limitation, in connection with any bankruptcy, insolvency, reorganization, receivership, or similar proceeding involving any Borrower, Guarantor, or any other person or entity), then this Guaranty shall be reinstated and Guarantor shall be liable to Lender for the full amount of such Guaranteed Obligation as if such payment or transfer had not been made, together with all costs, expenses, and attorneys' fees incurred by Lender in connection with such rescission, restoration, or return. The provisions of this Section 10 shall survive the termination of this Guaranty and shall remain in full force and effect notwithstanding any prior release, discharge, or satisfaction of the Guaranteed Obligations.
SECTION 11 — RELEASE OF PRIOR GUARANTOR
Effective as of the date hereof, and conditioned upon the due execution and delivery of this Guaranty by Guarantor and the acknowledgment and acceptance hereof by Lender, as evidenced by the execution of the Lender's signature page hereto:
(a) The Prior Guaranty (that certain Carve-Out Guaranty dated as of February 1, 2021, executed by Greystone Meridian Partners Fund III, L.P. in favor of Lender) is hereby terminated and shall be of no further force or effect.
(b) The Prior Guarantor (Greystone Meridian Partners Fund III, L.P.) is hereby fully and unconditionally released, acquitted, and forever discharged from any and all obligations, liabilities, claims, and causes of action arising under or in connection with the Prior Guaranty, whether now existing or hereafter arising, whether known or unknown, and whether accrued, contingent, or otherwise.
(c) Lender acknowledges and agrees that, upon the effectiveness of this Guaranty, Lender shall have no further recourse against the Prior Guarantor under or in connection with the Prior Guaranty, and Lender hereby waives any and all rights, claims, and causes of action against the Prior Guarantor arising under the Prior Guaranty; provided, however, that nothing in this Section 11 shall release the Prior Guarantor from liability for any Losses arising from acts, events, or circumstances occurring prior to the date hereof that constitute fraud or intentional misrepresentation by the Prior Guarantor, to the extent that (i) such acts, events, or circumstances have been specifically identified in writing by Lender to the Prior Guarantor prior to the date hereof and (ii) Lender has expressly reserved its rights with respect thereto in the Lender Consent Letter.
This Guaranty is delivered in full substitution for and replacement of the Prior Guaranty, and upon the effectiveness hereof, this Guaranty shall constitute the sole carve-out guaranty with respect to the Loans and the Loan Documents.
SECTION 12 — 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 personally (effective upon receipt), (b) sent by nationally recognized overnight courier service (effective one (1) business day after deposit with such courier), (c) sent by certified United States mail, return receipt requested, postage prepaid (effective three (3) business days after mailing), or (d) sent by electronic mail with confirmation of receipt (effective upon confirmed receipt by the recipient), in each case, addressed to the applicable party at the address set forth below or at such other address as such party may designate by written notice to the other party in accordance with this Section 12:
If to Lender:
Veltrano Capital Lending Corp. 200 South Biscayne Boulevard, Suite 3100 Miami, Florida 33131
Attention: Denise Alvarado, Managing Director
Email: dalvarado@ridgemontcapital.com
With a copy to:
Cranford McCabe LLP 100 Southeast Second Street, Suite 3000 Miami, Florida 33131
Attention: Leo Cranford, Partner
Email: lcranford@cranfordmccabe.com
If to Guarantor:
Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
Attention: David Elgin Park, General Counsel
Email: dpark@fairwaterreit.com
With a copy to:
Calderwood & Harkness LLP 450 Park Avenue, 28th Floor New York, New York 10022
Attention: Douglas Fairchild, Partner
Email: dfairchild@calderwoodharkness.com
And a copy to:
Calderwood & Harkness LLP 1700 K Street NW, Suite 900 Washington, DC 20006
Attention: Sylvia Hartwell, Partner (Tax)
Email: shartwell@calderwoodharkness.com
Any party may change its address for purposes of this Section 12 by giving written notice of such change to the other party in accordance with the provisions hereof. Rejection or refusal to accept, or the inability to deliver because of a changed address for which no notice was given, shall be deemed to constitute receipt of the notice, demand, request, or communication sent.
SECTION 13 — GOVERNING LAW AND JURISDICTION
Governing Law. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), WHICH GOVERNING LAW IS CONSISTENT WITH THE GOVERNING LAW PROVISIONS OF THE LOAN AGREEMENT AND THE PSA.
Jurisdiction. Guarantor hereby irrevocably and unconditionally submits to the exclusive jurisdiction of (a) the courts of the State of New York sitting in the County of New York, Borough of Manhattan, and (b) the United States District Court for the Southern District of New York, and any appellate courts having jurisdiction to review the judgments thereof, in any action, suit, or proceeding arising out of or relating to this Guaranty or the transactions contemplated hereby. Guarantor hereby irrevocably waives, to the fullest extent permitted by applicable law, (i) any objection that it may now or hereafter have to the laying of venue in any such court, (ii) any claim that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum, and (iii) any right to remove any such action, suit, or proceeding from any such state court to any federal 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 applicable law. Nothing in this Section 13 shall affect the right of Lender to bring any action, suit, or proceeding against Guarantor or its properties or assets in the courts of any other jurisdiction.
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 A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY, THE GUARANTEED OBLIGATIONS, THE LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO THE OTHER PARTY'S ENTERING INTO THIS GUARANTY, THAT EACH PARTY HAS BEEN REPRESENTED BY COUNSEL IN CONNECTION WITH THIS WAIVER, AND THAT EACH PARTY HAS KNOWINGLY AND VOLUNTARILY WAIVED ITS RIGHT TO A JURY TRIAL. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, MODIFICATIONS, RENEWALS, SUPPLEMENTS, OR EXTENSIONS OF THIS GUARANTY. IN THE EVENT OF LITIGATION, THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT WITHOUT A JURY.
SECTION 14 — MISCELLANEOUS PROVISIONS
Section 14.1 — Entire Agreement
This Guaranty, together with the Loan Documents, the PSA, the Lender Consent Letter, and the Assumption Agreement, constitutes the entire agreement between Guarantor and Lender with respect to the subject matter hereof and supersedes all prior and contemporaneous negotiations, understandings, representations, warranties, discussions, letters of intent, term sheets, proposals, and agreements, whether written or oral, relating to the subject matter hereof. No representations, warranties, understandings, or agreements have been made or relied upon by any party in connection with the execution and delivery of this Guaranty other than those expressly set forth herein and in the other documents referenced in this Section 14.1.
Section 14.2 — Amendments
No amendment, modification, supplement, restatement, termination, discharge, or waiver of any provision of this Guaranty shall be effective unless the same shall be set forth in a written instrument duly executed by Lender and Guarantor. No waiver of any breach or default shall constitute a waiver of any other or subsequent breach or default.
Section 14.3