CONFIDENTIAL
CALDERWOOD & HARKNESS LLP Attorneys at Law 450 Park Avenue, 28th Floor New York, New York 10022
Telephone: (212) 555-7800 Facsimile: (212) 555-7801 www.calderwoodharkness.com
Douglas Fairchild Direct: (212) 555-7844 dfairchild@calderwoodharkness.com
October 22, 2023
Matter No. 1036-00004
VIA EMAIL AND HAND DELIVERY
Nathaniel Pryce, Esq. Blackridge Hayes LLP 1285 Avenue of the Americas, 34th Floor New York, New York 10019
Re: Fairwater Real Estate Investment Trust — Acquisition of 14-Property Sun Belt Logistics and Office Portfolio from Greystone Meridian Partners Fund III, L.P. — Data Room Access Procedures and Document Handling Protocols
Dear Mr. Pryce:
1. Introduction and Purpose
This firm represents Fairwater Real Estate Investment Trust ("Fairwater" or "Buyer"), a Maryland real estate investment trust, in connection with the proposed acquisition (the "Transaction") of one hundred percent (100%) of the membership interests in fourteen (14) single-purpose Delaware limited liability companies (each, a "Target Entity" and collectively, the "Target Entities") comprising a Sun Belt logistics and office portfolio valued at approximately One Billion One Hundred Million Dollars ($1,100,000,000) from Greystone Meridian Partners Fund III, L.P. ("Seller" or "GMP Fund III"). As you know, Fairwater is a publicly traded REIT listed on the New York Stock Exchange under the ticker symbol "FREIT."
Reference is made to the mutual Confidentiality and Non-Disclosure Agreement dated October 10, 2023 (the "NDA"), entered into between Fairwater and GMP Fund III, which governs the treatment of confidential information exchanged between the parties in connection with the Transaction. Additionally, we are in the process of finalizing a Preliminary Due Diligence Request List, which we anticipate delivering to your office under separate cover on or about October 25, 2023. This protocol letter is being delivered in anticipation of, and is intended to work in conjunction with, that forthcoming request list.
The purpose of this letter is to establish mutually agreed-upon procedures governing: (a) the virtual data room through which Seller will make due diligence materials available to Buyer and its authorized representatives; (b) the designation, authorization, and management of user access and permissions within such data room; (c) protocols for document handling, downloading, and printing of materials accessed through the data room; and (d) confidentiality and security safeguards applicable to all materials and information made available through the data room, in each case in accordance with and supplemental to the terms and conditions of the NDA.
We believe that establishing clear and comprehensive data room procedures at the outset of the due diligence process will facilitate an efficient review, minimize the risk of inadvertent disclosure of sensitive information, and help ensure that both parties' interests in maintaining the confidentiality of the Transaction and the underlying materials are adequately protected. Accordingly, we respectfully request that you review the protocols set forth below and confirm Seller's agreement by executing the countersignature block at the conclusion of this letter.
2. Virtual Data Room Platform and Administration
2.1 Data Room Platform
We understand that Seller, acting through its counsel, Blackridge Hayes LLP, intends to host a virtual data room (the "Data Room") using a commercially recognized secure virtual data room platform (such as Thackeray Solutions, Crestline Solutions, or a comparable industry-standard platform) for the purpose of making available to Buyer and its authorized representatives the documents, records, agreements, reports, and other materials responsive to Buyer's due diligence inquiries. We request that the platform selected by Seller support, at a minimum, the following functionalities: (i) granular, folder-level user permission controls; (ii) dynamic watermarking of viewed and downloaded documents; (iii) comprehensive audit trail and activity logging; (iv) an integrated question-and-answer module; (v) bulk upload and download capabilities; and (vi) industry-standard encryption (256-bit AES or equivalent) for data at rest and in transit.
All costs associated with hosting, maintaining, and administering the Data Room, including platform licensing fees, shall be borne by Seller. Buyer shall bear the costs of its own internal review, analysis, and advisory fees incurred in connection with the due diligence process.
The Data Room shall remain active and accessible to Buyer's authorized users through at least thirty (30) calendar days following the closing of the Transaction. In the event that the Transaction is terminated for any reason prior to closing, the Data Room shall remain accessible for a period of ten (10) business days following the effective date of such termination, solely to permit Buyer and its authorized representatives to complete the orderly return or destruction of materials as contemplated by Section 6.3 below and the corresponding provisions of the NDA.
2.2 Data Room Administrator
Blackridge Hayes LLP, as Seller's counsel, shall serve as the Data Room administrator with primary responsibility for the setup, organization, population, and ongoing maintenance of the Data Room, including the management of user access credentials, permission levels, folder structures, and document uploads.
The primary Data Room administrator contact shall be Thomas Keating, Senior Associate, Blackridge Hayes LLP. All administrative inquiries, access requests, and technical issues related to the Data Room should be directed to Mr. Keating in the first instance.
We request that Calderwood & Harkness LLP ("C&H") be notified of the Data Room URL, login credentials for all Buyer-side authorized users, and any platform-specific instructions (including user guides, browser compatibility requirements, and multi-factor authentication setup procedures) within five (5) business days of the date of this letter. To the extent that the Data Room platform requires individual user registration, we will provide the email addresses and contact information for each of Buyer's authorized users promptly upon confirmation of the platform to be used.
2.3 Data Room Index and Organization
To facilitate an orderly and efficient due diligence review, we respectfully request that Seller organize the Data Room materials in a logical folder structure corresponding to standard commercial real estate due diligence categories. We suggest the following top-level folder categories, which are consistent with customary market practice for transactions of this nature:
• Organizational Documents (formation documents, operating agreements, certificates of good standing, incumbency certificates, organizational charts)
• Title and Survey (title commitments, title policies, exception documents, ALTA surveys, legal descriptions)
• Leases (tenant leases, amendments, guaranties, estoppel certificates, tenant correspondence, rent rolls)
• Environmental (Phase I and Phase II environmental site assessments, regulatory correspondence, remediation reports, underground storage tank records)
• Financial (property-level operating statements, budgets, capital expenditure histories and projections, accounts receivable and payable aging, real estate tax bills and assessments)
• Insurance (property and liability insurance policies, certificates of insurance, loss run histories, pending claims)
• Litigation (pending or threatened litigation, arbitration, or administrative proceedings)
• Loan Documents (existing mortgage, mezzanine, and other financing agreements, including promissory notes, deeds of trust, loan modifications, and lender correspondence)
• Service Contracts (property management agreements, maintenance contracts, vendor agreements, brokerage agreements)
• Tax (federal and state income tax returns for each Target Entity, tax election documents, transfer pricing analyses, REIT qualification analyses)
• Zoning and Permits (zoning letters and confirmations, certificates of occupancy, building permits, special use permits, variances, site plan approvals)
• Property Condition (property condition assessment reports, engineering reports, ADA compliance reports, capital needs assessments)
• Employee and Labor Matters (to the extent applicable, on-site employee rosters, benefit information, collective bargaining agreements)
• Miscellaneous (any materials not falling within the foregoing categories)
In addition to the foregoing category-level folders, we request that the Data Room include a separate subfolder for each of the fourteen (14) Target Entities and their respective properties, organized by entity name and property address, as follows:
1. GMP Fairfield I LLC — 4200 Fairfield Industrial Blvd, Fairburn, Georgia 30213
2. GMP Fairfield II LLC — 4300 Fairfield Industrial Blvd, Fairburn, Georgia 30213
3. GMP Westlake LLC — 11500 Westlake Parkway, Houston, Texas 77079
4. GMP Katy LLC — 22600 Katy Freeway, Katy, Texas 77450
5. GMP Alliance LLC — 2800 Alliance Gateway Blvd, Fort Worth, Texas 76177
6. GMP Lakeland LLC — 7100 Drane Field Road, Lakeland, Florida 33811
7. GMP Southport LLC — 3200 Southport Connector Road, Jacksonville, Florida 32218
8. GMP Murfreesboro LLC — 1600 Joe B. Jackson Parkway, Murfreesboro, Tennessee 37127
9. GMP Buckhead LLC — 3380 Peachtree Road NE, Atlanta, Georgia 30326
10. GMP SouthPark LLC — 6200 Fairview Road, Charlotte, North Carolina 28210
11. GMP Cool Springs LLC — 5000 Virginia Way, Brentwood, Tennessee 37027
12. GMP Brickell LLC — 1450 Brickell Avenue, Miami, Florida 33131
13. GMP Peachtree LLC — 5900 Peachtree Industrial Blvd, Peachtree Corners, Georgia 30092
14. GMP Mount Juliet LLC — 400 South Mount Juliet Road, Mount Juliet, Tennessee 37122
Within each property-specific subfolder, we request that the applicable due diligence categories listed above be replicated, so that users may navigate to, for example, "GMP Lakeland LLC > Leases" or "GMP Buckhead LLC > Environmental" without difficulty.
We further request that the Data Room include portfolio-wide or cross-cutting folders for documents and agreements applicable to the portfolio as a whole or to multiple Target Entities, including but not limited to:
• The Pinnacle Federal Bank Master Loan Agreement dated September 15, 2020 (and all related loan documents, amendments, and lender correspondence)
• The Veltrano Capital Loan Agreement dated February 1, 2021 (and all related loan documents, amendments, and lender correspondence)
• The Sycamore Life Insurance Note Purchase Agreement dated November 22, 2019 (and all related note documents and amendments)
• The Argyle Property Services LLC property management agreements and any related sub-management or oversight agreements applicable across the portfolio
• Any portfolio-level insurance policies, master service agreements, or other cross-property arrangements
Finally, we request that the Data Room administrator maintain a master index of all documents posted to the Data Room, including document names, folder locations, upload dates, and document identification numbers assigned by the platform. This master index should be updated on a rolling basis as new documents are uploaded. Seller shall cause the Data Room administrator to notify C&H by email (directed to Grace Nakamura at gnakamura@calderwoodharkness.com) each time new documents are uploaded to the Data Room, specifying the folder location(s) and a brief description of the materials posted.
3. Authorized Users and Access Permissions
3.1 Buyer's Authorized Users
The following individuals are hereby designated as authorized users on behalf of Buyer and are entitled to receive access credentials to the Data Room, subject to the permission levels described in Section 3.3 below:
A. Calderwood & Harkness LLP (Buyer's Counsel):
In addition to the foregoing named individuals, up to three (3) additional C&H associates, paralegals, or staff members may be designated as authorized users from time to time by Grace Nakamura, upon advance written notice to Blackridge Hayes LLP in accordance with the procedures set forth in Section 3.4 below.
B. Fairwater Real Estate Investment Trust (Client):
Ms. Sung-Calloway's access shall be limited to view-only access for financial materials, as further described in Section 3.3 below.
C. Buyer's Third-Party Consultants and Advisors:
The following third-party consultants and advisors engaged by Buyer shall be granted access to specified Data Room folders only, as described in Section 3.3 below:
(i) Ashford Prewitt LLP (Buyer's accountants and tax advisors):
• Martin Ashford, CPA, Engagement Partner
• Naomi Ikeda, CPA, Tax Partner
• Up to two (2) additional staff members to be designated in writing
(ii) Trident Environmental Group LLC (environmental consultant):
• Rachel Kwan, Senior Environmental Scientist
• Up to one (1) additional team member to be designated in writing
(iii) Rampart Building Sciences, Inc. (property condition assessment consultant):
• Alan Westbrook, PE
• Up to one (1) additional team member to be designated in writing
(iv) Stonebridge Valuation Advisors, LLC (appraiser):
• Maureen Alcott, MAI
• Up to one (1) additional team member to be designated in writing
(v) Hartwick Gunderson & Associates, Inc. (insurance broker):
• Peter Langford, Account Executive
D. Local Counsel:
The following local counsel have been or are expected to be engaged by Buyer to assist with jurisdiction-specific due diligence matters. Access for local counsel will be granted upon engagement and upon written confirmation from C&H to the Data Room administrator:
Each local counsel firm may designate up to two (2) additional attorneys or paralegals as authorized users, provided that C&H delivers advance written notice to Blackridge Hayes LLP identifying each such individual by name, title, firm, and email address, and confirming that such individual is bound by the confidentiality obligations set forth in the NDA (whether directly or through their firm's engagement agreement with Buyer or C&H).
3.2 Seller's Authorized Users
We request that Blackridge Hayes LLP provide written confirmation of all Seller-side users who will have administrative, upload, or other access to the Data Room. At a minimum, we understand that the following individuals are expected to have Seller-side access:
We request that Seller notify C&H promptly in writing of any additions to or deletions from the foregoing list of Seller-side authorized users. In particular, we ask that Seller confirm whether any additional Greystone Meridian Capital personnel, Argyle Property Services employees, or other Seller-side advisors (including investment bankers, if applicable) will be granted Data Room access.
3.3 Tiered Access / Permission Levels
In order to safeguard the confidentiality of sensitive materials and to ensure that access to the Data Room is appropriately tailored to each authorized user's role in connection with the Transaction, we propose the following tiered access and permission structure:
Tier 1 — Full Access (View, Download, and Print):
The following authorized users shall have full access to all Data Room folders and materials, including the ability to view, download, and print documents:
• All C&H attorneys (Douglas Fairchild, Angela Fontaine, Grace Nakamura, Rafael Dominguez, Sylvia Hartwell, and any additional C&H personnel designated pursuant to Section 3.1.A above)
• Fairwater in-house legal personnel (David Elgin Park and Camille Oduya)
• Marcus Devereaux, EVP, Acquisitions
• Leah Torrance, SVP, Asset Management
Tier 2 — View and Download (No Print):
The following authorized users shall have the ability to view and download documents from the Data Room but shall not have printing privileges:
• Patricia Sung-Calloway, CFO, Fairwater Real Estate Investment Trust (access limited to financial materials, including operating statements, budgets, capital expenditure reports, rent rolls, and tax materials)
• Ashford Prewitt LLP (Martin Ashford, Naomi Ikeda, and designated additional staff) (access limited to financial, tax, and organizational document folders)
Tier 3 — Limited Folder Access (View and Download, No Print):
The following third-party consultants shall be granted access only to those Data Room folders directly relevant to the scope of their respective engagements:
• Trident Environmental Group LLC (Rachel Kwan and designated team member): access limited to environmental reports, regulatory correspondence, and related remediation documentation folders for each applicable property
• Rampart Building Sciences, Inc. (Alan Westbrook and designated team member): access limited to property condition assessment reports, engineering reports, building systems documentation, capital needs assessments, and ADA compliance reports for each applicable property
• Stonebridge Valuation Advisors, LLC (Maureen Alcott and designated team member): access limited to financial and operating data folders, lease folders (including rent rolls, tenant lease abstracts, and estoppel certificates), and property-level budgets and projections
• Hartwick Gunderson & Associates, Inc. (Peter Langford): access limited to insurance folders, including property and liability insurance policies, certificates of insurance, loss run histories, and pending claims documentation
Tier 4 — Local Counsel Access:
Each local counsel firm shall be granted access to the Data Room folders relevant to the properties and jurisdictions for which they have been engaged. Specifically:
• Breckenridge Osgood LLP (Texas): GMP Westlake LLC, GMP Katy LLC, and GMP Alliance LLC property-specific folders, plus applicable portfolio-wide folders
• Talmadge Beaumont LLP (Georgia): GMP Fairfield I LLC, GMP Fairfield II LLC, GMP Buckhead LLC, and GMP Peachtree LLC property-specific folders, plus applicable portfolio-wide folders
• Haversham Cole PLLC (North Carolina): GMP SouthPark LLC property-specific folder, plus applicable portfolio-wide folders
• Ellsworth Ridley LLP (Tennessee): GMP Murfreesboro LLC, GMP Cool Springs LLC, and GMP Mount Juliet LLC property-specific folders, plus applicable portfolio-wide folders
• Palmetto Strauss PA (Florida): GMP Lakeland LLC, GMP Southport LLC, and GMP Brickell LLC property-specific folders, plus applicable portfolio-wide folders
Local counsel shall have view and download privileges within their designated folders but shall not have print privileges unless specifically authorized in writing by C&H.
Under no circumstances may any authorized user share, transfer, or disclose Data Room login credentials with or to any person who is not listed as an authorized user in this letter or who has not been subsequently designated as an authorized user in accordance with Section 3.4 below. Any request for the addition of authorized users shall be submitted in writing to both Grace Nakamura at C&H (gnakamura@calderwoodharkness.com) and Thomas Keating at Blackridge Hayes LLP, in accordance with the procedures set forth in Section 3.4.
3.4 Addition and Removal of Users
Addition of Users. Any request to add an authorized user to the Data Room shall be submitted in writing (email being sufficient) by C&H to Blackridge Hayes LLP (for Buyer-side additions) or by Blackridge Hayes LLP to C&H (for Seller-side additions). Each such request shall include the following information: (i) the full legal name of the proposed user; (ii) title and position; (iii) organization or firm affiliation; (iv) email address to be used for Data Room access; (v) the proposed scope of access (i.e., applicable tier and, if Tier 3 or Tier 4, the specific folders to which access is requested); and (vi) confirmation that the proposed user is bound by the confidentiality obligations of the NDA (whether directly or through their organization's agreement with Buyer or Seller, as applicable). The Data Room administrator shall use commercially reasonable efforts to activate credentials for newly authorized users within two (2) business days of receipt of a complete written request.
Removal of Users. Either party may request the removal of an authorized user from the Data Room by providing written notice to the Data Room administrator (with a copy to the other party's counsel). The Data Room administrator shall deactivate the credentials of the removed user within one (1) business day of receipt of such notice. Upon deactivation, the removed user shall promptly return or destroy all downloaded or printed Data Room materials in such user's possession, custody, or control, in accordance with Section 6.3 below.
Individual Acknowledgments. All authorized users shall execute individual acknowledgment forms confirming that they have been informed of and agree to be bound by the confidentiality obligations set forth in the NDA, or shall be covered by an existing confidentiality agreement or engagement letter that incorporates such obligations by reference. C&H shall maintain records of all such acknowledgments and shall make them available to Blackridge Hayes LLP upon reasonable request.
4. Document Handling, Download, and Printing Protocols
4.1 Downloads. Authorized users who have been granted download privileges in accordance with Section 3.3 above may download documents from the Data Room solely for the purpose of conducting due diligence in connection with the Transaction and for no other purpose. All downloaded materials shall be stored on secure, password-protected devices or on the respective firm's or organization's secure internal network infrastructure. Under no circumstances shall downloaded materials be stored on personal unsecured devices, portable storage media (such as unencrypted USB drives), or public or consumer-grade cloud storage services (such as personal Hollowell Health IT, Larkspur Technologies, or similar services) unless such services are part of the firm's or organization's approved enterprise security infrastructure and are subject to encryption and access controls consistent with industry best practices.
All downloaded documents and materials shall remain subject to all terms and conditions of the NDA dated October 10, 2023, including without limitation the restrictions on use, disclosure, and copying set forth therein. Each authorized user who downloads materials from the Data Room shall maintain a reasonable record of the materials downloaded and shall be prepared to account for such materials in the event of a request for return or destruction of Confidential Information pursuant to Section 6.3 below.
4.2 Printing. Printing of Data Room documents is permitted only for those authorized users who have been expressly granted print privileges under Section 3.3 above (i.e., Tier 1 users). Printing shall be undertaken solely for internal working purposes in connection with the due diligence review and analysis of the Transaction. Printed materials shall be maintained in secure, access-controlled locations — such as locked offices, secure file rooms, or other controlled environments — and shall not be left unattended in common areas, conference rooms (after meetings have concluded), or other locations accessible to unauthorized persons.
Upon the termination of the Transaction for any reason prior to closing, or upon Seller's written request at any time, all printed materials derived from the Data Room shall be promptly destroyed by secure shredding or other commercially reasonable means of destruction. The party responsible for such destruction shall provide a written certificate of destruction, signed by an authorized representative, to the requesting party within ten (10) business days of the completion of such destruction, all in accordance with Section 6.3 below and the corresponding provisions of the NDA.
4.3 Watermarking. We request that Seller enable dynamic watermarking on all documents within the Data Room as a standard security measure. Specifically, each document viewed, downloaded, or printed from the Data Room should be watermarked with the following information: (i) the name of the authorized user accessing the document; (ii) the email address associated with the user's Data Room credentials; (iii) the date of access, download, or printing; and (iv) the time of access, download, or printing. Dynamic watermarking serves as an important deterrent against unauthorized distribution and provides an audit trail in the event of any security incident. We understand that this functionality is standard on most commercially recognized virtual data room platforms and request that it be activated prior to or simultaneously with the initial population of the Data Room.
4.4 Sensitive Materials / Restricted Folder
We recognize that certain materials in the Data Room may contain information of a particularly sensitive nature, including but not limited to competitively sensitive tenant financial information (such as tenant financial statements submitted pursuant to lease reporting requirements), details of pending or threatened litigation involving any of the Target Entities, employee-related data (including compensation and benefits information for on-site property management personnel), and other information that Seller may reasonably determine warrants enhanced protection.
If Seller elects to designate any materials as "Highly Confidential" or "Restricted," we propose that such materials be placed in a separately designated restricted subfolder within the Data Room (e.g., within each property-specific folder or at the portfolio level, as appropriate), with access limited exclusively to the following authorized users:
• C&H attorneys (Tier 1, Buyer's counsel only)
• Fairwater in-house legal personnel (David Elgin Park and Camille Oduya)
Buyer's third-party consultants, accountants, local counsel, and other non-legal Buyer personnel shall not receive access to any restricted folder or the materials contained therein without the prior written consent of Seller, which may be granted, withheld, or conditioned in Seller's sole discretion. In the event that access to restricted materials is reasonably necessary for a specific third-party consultant to complete its engagement (e.g., an environmental consultant's need to review a litigation file related to environmental contamination at a specific property), C&H shall submit a written request to Blackridge Hayes LLP identifying the specific materials and the consultant requiring access, and the parties shall confer in good faith regarding appropriate terms and conditions for such access, which may include the execution of additional confidentiality undertakings by the requesting consultant.
5. Q&A Process
5.1 Due Diligence Questions
All questions arising from the review of Data Room materials shall be submitted in writing through the Data Room's integrated Q&A module, if such functionality is available on the selected platform, or alternatively by email from Grace Nakamura (gnakamura@calderwoodharkness.com) to Thomas Keating at Blackridge Hayes LLP. If the Q&A module is used, questions shall be organized by Data Room folder and document reference to facilitate efficient tracking and response. Each question shall be assigned a unique tracking number by the platform (or, if submitted by email, shall be numbered sequentially by C&H in a running log).
Seller shall use commercially reasonable efforts to respond to all due diligence questions within five (5) business days of submission. We acknowledge that certain questions may require additional time for Seller to gather information from property-level personnel, third-party service providers, or other sources, and we will endeavor to be reasonable in our expectations regarding response timelines for complex or multi-faceted inquiries. In the event that Seller anticipates that a response will require more than five (5) business days, we request that Seller provide an interim acknowledgment and an estimated response date within the initial five-business-day period.
To the extent that Seller's responses to due diligence questions include or reference additional documents or supplemental materials, Seller shall upload such responsive documents directly to the appropriate Data Room folder(s) and notify C&H of the posting by email, referencing the applicable question tracking number(s) and folder location(s).
5.2 Document Requests
Additional document requests beyond those set forth in the Preliminary Due Diligence Request List (to be delivered under separate cover on or about October 25, 2023) shall be submitted through the same Q&A channel described in Section 5.1 above, with clear identification as a supplemental document request (as distinguished from a question regarding existing Data Room materials). We will endeavor to batch supplemental document requests to the extent practicable to minimize administrative burden on Seller's team.
Seller shall acknowledge receipt of each supplemental document request within two (2) business days and shall provide an estimated timeline for production of the requested materials. If Seller determines in good faith that a particular request is unduly burdensome, duplicative, or outside the scope of information reasonably necessary for Buyer's evaluation of the Transaction, the parties shall confer in good faith to reach a mutually acceptable resolution regarding the scope and timing of the response.
6. Confidentiality and Security
6.1 Incorporation of NDA
All materials, documents, information, and data made available through the Data Room, whether uploaded by Seller, Blackridge Hayes LLP, or any other Seller-side authorized user, constitute "Confidential Information" as that term is defined in the NDA dated October 10, 2023 between Fairwater and GMP Fund III. All authorized users accessing the Data Room agree, and by accessing the Data Room shall be deemed to have agreed, to be bound by the terms and conditions of the NDA — whether directly (as signatories or parties thereto), through their respective organizations' agreements with Buyer, or through individual acknowledgment forms executed pursuant to Section 3.4 above. Nothing in this letter shall be construed to limit, modify, or waive any of the obligations, restrictions, or remedies set forth in the NDA, except as expressly provided herein.
6.2 No Public Disclosure
No Data Room materials, or any information derived therefrom or based thereon, may be disclosed publicly by Buyer or any of its authorized users, including without limitation in any filing with the U.S. Securities and Exchange Commission, any press release, any investor communication, any marketing or promotional material, or any other public statement, without the prior written consent of Seller. The foregoing restriction is subject to Fairwater's obligations as a public company listed on the New York Stock Exchange under applicable federal securities laws and regulations, including the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. To the extent that Fairwater reasonably determines that disclosure of any Confidential Information is required by applicable law, regulation, or stock exchange rule, Fairwater shall provide Seller with prompt advance written notice of such determination (to the extent legally permissible) and shall cooperate with Seller in seeking confidential treatment or other protective measures with respect to such disclosure, all in accordance with the procedures set forth in the NDA.
6.3 Return or Destruction of Materials
Upon the termination of the Transaction for any reason prior to closing, or upon the written request of Seller at any time (whether before or after closing), Buyer and all authorized users shall promptly return or destroy all Confidential Information obtained through the Data Room, including without limitation all downloaded electronic files, printed documents, copies, summaries, analyses, compilations, studies, notes, and other materials prepared by or on behalf of Buyer or its authorized users that contain, reflect, or are based upon Confidential Information (collectively, "Derivative Materials"). Buyer shall provide, and shall cause each of its authorized users to provide, written certification of the completion of such return or destruction within the time period and in the form required by the NDA.
Notwithstanding the foregoing, C&H and Fairwater's in-house legal department may each retain one (1) archival copy of Confidential Information and Derivative Materials as may be required by (i) applicable law, regulation, or court order; (ii) the rules or regulations of any applicable self-regulatory organization or professional licensing body; or (iii) such party's bona fide document retention policies and procedures, provided that any such retained copies shall remain subject to the continuing confidentiality obligations set forth in the NDA for the full duration of the survival period specified therein. In addition, copies of Confidential Information contained in routine electronic backup systems (e.g., automated email backup and disaster recovery systems) need not be separately destroyed, provided that such systems are not accessed for the purpose of retrieving Confidential Information after the date of return or destruction and that such copies remain subject to the confidentiality obligations of the NDA.
6.4 Security Incidents
In the event that any party or authorized user discovers or reasonably suspects any unauthorized access to, disclosure of, or breach of security involving Data Room materials or any other Confidential Information (a "Security Incident"), the discovering party shall immediately notify both C&H and Blackridge Hayes LLP of such Security Incident. Notifications shall be directed to the following individuals:
Calderwood & Harkness LLP:
• Douglas Fairchild, Partner — dfairchild@calderwoodharkness.com; (212) 555-7844
• Grace Nakamura, Lead Associate — gnakamura@calderwoodharkness.com; (212) 555-7862
Blackridge Hayes LLP:
• Nathaniel Pryce, Lead Partner — npryce@blackridgehayes.com; (212) 555-3100
• Thomas Keating, Senior Associate — tkeating@blackridgehayes.com; (212) 555-3147
The initial notification shall include, to the extent known at the time: (i) a description of the nature and scope of the Security Incident; (ii) identification of the materials or information affected; (iii) the date and time the Security Incident was discovered; (iv) the identity of any individuals involved (whether authorized or unauthorized); and (v) any steps taken or proposed to be taken to mitigate the impact of the Security Incident. Following the initial notification, the parties shall cooperate in good faith to investigate the Security Incident, mitigate any potential harm, and implement appropriate remedial measures to prevent recurrence.
7. General Provisions
7.1 Governing Agreement
This letter is intended to supplement, and does not supersede or replace, the NDA dated October 10, 2023 between Fairwater and GMP Fund III. The NDA remains in full force and effect in accordance with its terms. In the event of any conflict or inconsistency between the provisions of this letter and the provisions of the NDA, the more restrictive provision — that is, the provision that affords greater protection to the disclosing party's Confidential Information — shall control and govern.
7.2 Amendments. The protocols and procedures set forth in this letter may be amended, modified, or supplemented only by a written instrument signed by (or, in the case of email, sent by an authorized representative of) C&H on behalf of Buyer and Blackridge Hayes LLP on behalf of Seller. No oral modification, waiver, or amendment shall be effective for any purpose. Any such written amendment shall be appended to this letter and shall be binding upon all authorized users.
7.3 Contact Persons
The primary contact persons for all matters relating to the Data Room, including administrative, technical, and substantive due diligence matters, are as follows:
Calderwood & Harkness LLP:
Grace Nakamura, Lead Associate
Email: gnakamura@calderwoodharkness.com
Telephone: (212) 555-7862
Rafael Dominguez, Working Associate
Email: rdominguez@calderwoodharkness.com
Telephone: (202) 555-4210
Blackridge Hayes LLP:
Thomas Keating, Senior Associate
Email: tkeating@blackridgehayes.com
Telephone: (212) 555-3147
All written communications regarding Data Room access, user management, and document uploads should be directed to the applicable contact persons identified above, with copies to lead counsel as appropriate.
7.4 Acknowledgment. We respectfully request that Blackridge Hayes LLP, on behalf of Seller, review the protocols and procedures set forth in this letter and, if acceptable, countersign and return a copy of this letter to C&H to confirm Seller's agreement. Upon execution by both parties, this letter shall constitute a binding agreement between the parties with respect to the matters addressed herein, supplemental to and governed by the NDA.
If you have any questions, concerns, or proposed modifications to the foregoing protocols, we are happy to discuss them at your earliest convenience. We look forward to your prompt response and to productive cooperation throughout the due diligence process.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Douglas Fairchild Partner
cc: Marcus Devereaux, Executive Vice President, Acquisitions, Fairwater Real Estate Investment Trust David Elgin Park, General Counsel, Fairwater Real Estate Investment Trust Camille Oduya, In-House Real Estate Counsel, Fairwater Real Estate Investment Trust Angela Fontaine, Partner, Calderwood & Harkness LLP
ACKNOWLEDGMENT AND AGREEMENT
The undersigned, on behalf of Greystone Meridian Partners Fund III, L.P. and in his capacity as lead counsel to Seller, hereby acknowledges receipt of the foregoing Data Room Access Procedures and Document Handling Protocols letter dated October 22, 2023 (the "Protocol Letter") from Calderwood & Harkness LLP and confirms that Seller agrees to the protocols and procedures set forth therein. Seller shall cause the Data Room to be established and administered in accordance with the terms of the Protocol Letter, as supplemented by the Confidentiality and Non-Disclosure Agreement dated October 10, 2023 between Fairwater Real Estate Investment Trust and Greystone Meridian Partners Fund III, L.P.
ACKNOWLEDGED AND AGREED:
BLACKRIDGE HAYES LLP, on behalf of Greystone Meridian Partners Fund III, L.P.
By: ________
Name: Nathaniel Pryce
Title: Partner
Date: ________
| Name | Role | Office |
| Douglas Fairchild | Responsible Partner, Real Estate | New York |
| Angela Fontaine | Billing Partner, Real Estate | New York |
| Grace Nakamura | Lead Associate, Real Estate | New York |
| Rafael Dominguez | Working Associate, Real Estate | Washington, DC |
| Sylvia Hartwell | Specialist Partner, Tax | Washington, DC |
| Name | Title | |
| Marcus Devereaux | Executive Vice President, Acquisitions | |
| Leah Torrance | Senior Vice President, Asset Management | |
| David Elgin Park | General Counsel | |
| Camille Oduya | In-House Real Estate Counsel | |
| Patricia Sung-Calloway | Chief Financial Officer | |
| Firm | Jurisdiction | Primary Contact |
| Breckenridge Osgood LLP | Texas | James Breckenridge, Partner |
| Talmadge Beaumont LLP | Georgia | Catherine Beaumont, Partner |
| Haversham Cole PLLC | North Carolina | Marshall Haversham, Partner |
| Ellsworth Ridley LLP | Tennessee | Diane Ellsworth, Partner |
| Palmetto Strauss PA | Florida | Roberto Strauss, Partner |
| Name | Title / Organization | |
| Victor Lansdell | Co-Founder & Managing Partner, Greystone Meridian Capital LLC | |
| Elise Rathborne | Co-Founder & Managing Partner, Greystone Meridian Capital LLC | |
| Sean Kilpatrick | Portfolio Manager, Argyle Property Services LLC | |
| Nathaniel Pryce | Lead Partner, Blackridge Hayes LLP | |
| Ingrid Solberg | Partner (Tax), Blackridge Hayes LLP | |
| Thomas Keating | Senior Associate, Blackridge Hayes LLP |
William Oakes, CPA