CALDERWOOD & HARKNESS LLP Attorneys at Law
450 Park Avenue, 28th Floor New York, New York 10022 Telephone: (212) 554-8000 Facsimile: (212) 554-8001 www.calderwoodharkness.com
October 25, 2023
Matter No.: 1036-00004
VIA ELECTRONIC MAIL AND DATA ROOM UPLOAD
Nathaniel Pryce, Esq. Blackridge Hayes LLP 1285 Avenue of the Americas, 34th Floor New York, New York 10019
Re: Preliminary Due Diligence Document Request — Acquisition by Fairwater Real Estate Investment Trust of 14-Property Sun Belt Logistics and Office Portfolio from Greystone Meridian Partners Fund III, L.P.
Dear Mr. Pryce:
This firm represents Fairwater Real Estate Investment Trust ("Buyer") as outside counsel in connection with the contemplated acquisition by Buyer of one hundred percent (100%) of the membership interests in fourteen (14) property-owning single-purpose Delaware limited liability companies (each, a "Target Entity" and collectively, the "Target Entities") from Greystone Meridian Partners Fund III, L.P. ("Seller"). This transaction is being pursued pursuant to, and in accordance with, that certain Letter of Intent executed on October 18, 2023, by and between Buyer and Seller (the "LOI"). All documents and information exchanged in connection with this request are subject to the terms and conditions of the Mutual Confidentiality Agreement dated October 10, 2023, by and between Buyer and Seller (the "NDA").
This letter sets forth Buyer's initial due diligence document request list, organized into the fourteen (14) categories set forth below, comprising one hundred eighty-seven (187) categories of requested documents and information. This request list is preliminary in nature and is not intended to be exhaustive. Buyer expressly reserves the right to supplement, modify, or expand this request list at any time as its review progresses and as additional areas of inquiry become apparent through the course of its due diligence investigation. The production of additional documents and information may be requested as Buyer's review progresses.
We request that all responsive documents and information be uploaded to the electronic data room (the "Data Room") established pursuant to the Clean Team / Data Room Protocol Letter dated October 22, 2023 (the "Protocol Letter"). All documents should be uploaded in their native electronic format where available, or as searchable PDF files where native files are not available. Paper documents should be scanned and uploaded as searchable PDF files.
As used herein, "Properties" refers to the fourteen (14) real properties identified on Schedule A attached hereto, and "Target Entities" refers to the fourteen (14) Delaware limited liability companies identified on Schedule A. We request that all documents and information be organized by Property and/or Target Entity, as applicable, where the documents or information are property-specific. Unless otherwise indicated in a specific request, all documents and information should cover the period from the date of Seller's acquisition of each respective Property and Target Entity through the present.
We have organized this request list into the following categories for ease of reference:
• Category I — Organizational and Entity Documents (Items 1–22)
• Category II — Title and Survey (Items 23–40)
• Category III — Real Property Tax and Assessment (Items 41–48)
• Category IV — Leases and Tenant Matters (Items 49–75)
• Category V — Existing Mortgage Debt and Financing Documents (Items 76–95)
• Category VI — Environmental (Items 96–108)
• Category VII — Property Condition and Engineering (Items 109–120)
• Category VIII — Zoning and Land Use (Items 121–130)
• Category IX — Service Contracts and Property Management (Items 131–142)
• Category X — Insurance (Items 143–152)
• Category XI — Financial and Operating Information (Items 153–168)
• Category XII — Tax Matters (Items 169–178)
• Category XIII — Litigation and Legal Proceedings (Items 179–185)
• Category XIV — Miscellaneous and General (Items 186–187)
Each category and item is set forth in detail below.
SCHEDULE A
LIST OF PROPERTIES AND TARGET ENTITIES
Geographic Summary:
• Georgia: 4 Properties (Fairfield Logistics Center I, Fairfield Logistics Center II, Buckhead Place Office Tower, Peachtree Corners Logistics Center)
• Texas: 3 Properties (Westlake Distribution Hub, Katy Freeway Logistics Park, Alliance Commerce Center)
• Florida: 3 Properties (Lakeland Crossings Industrial, Southport Logistics Park, Brickell Bay Office Building)
• Tennessee: 3 Properties (Murfreesboro Distribution Center, Cool Springs Office Park, Mount Juliet Commerce Park)
• North Carolina: 1 Property (SouthPark Corporate Center)
Asset Type Summary:
• Logistics: 10 Properties (Properties 1–8, 13–14)
• Office: 4 Properties (Properties 9–12)
CATEGORY I
ORGANIZATIONAL AND ENTITY DOCUMENTS
(Items 1–22)
Please provide the following documents and information relating to the organizational structure, formation, qualification, and governance of each Target Entity, Seller, and Seller's general partner:
1. Certificates of Formation (or Certificates of Organization, as applicable) for each Target Entity filed with the Secretary of State of the State of Delaware, including all amendments and restatements thereof, for each of the following fourteen (14) entities: GMP Fairfield I LLC, GMP Fairfield II LLC, GMP Westlake LLC, GMP Katy LLC, GMP Alliance LLC, GMP Lakeland LLC, GMP Southport LLC, GMP Murfreesboro LLC, GMP Buckhead LLC, GMP SouthPark LLC, GMP Cool Springs LLC, GMP Brickell LLC, GMP Peachtree LLC, and GMP Mount Juliet LLC.
2. Current Certificates of Good Standing (or Certificates of Status, as applicable) for each Target Entity from the Secretary of State of the State of Delaware, dated within thirty (30) days of the date of this request letter, confirming that each Target Entity is in good standing under the laws of the State of Delaware.
3. Foreign qualification certificates, certificates of authority, or certificates of registration for each Target Entity in the state in which its respective Property is located, as follows: GMP Fairfield I LLC, GMP Fairfield II LLC, GMP Buckhead LLC, and GMP Peachtree LLC in the State of Georgia; GMP Westlake LLC, GMP Katy LLC, and GMP Alliance LLC in the State of Texas; GMP Lakeland LLC, GMP Southport LLC, and GMP Brickell LLC in the State of Florida; GMP Murfreesboro LLC, GMP Cool Springs LLC, and GMP Mount Juliet LLC in the State of Tennessee; and GMP SouthPark LLC in the State of North Carolina.
4. Current Certificates of Good Standing (or equivalent certificates of status or existence) from the Secretary of State (or equivalent filing office) of each foreign qualification state for each Target Entity, confirming that each Target Entity is authorized to transact business and is in good standing in the applicable foreign jurisdiction, dated within thirty (30) days of the date of this request letter.
5. The Operating Agreement (including all amendments, supplements, restatements, and modifications thereto) for each Target Entity, including any written consents or resolutions adopted pursuant to such Operating Agreements.
6. An organizational chart showing the complete ownership structure of each Target Entity, including identification of Greystone Meridian Partners Fund III, L.P. as the sole member of each Target Entity, Greystone Meridian Capital LLC as the general partner of Greystone Meridian Partners Fund III, L.P., and any intermediate holding entities, management entities, or affiliated entities that have any direct or indirect ownership interest in, or management authority over, any Target Entity. The organizational chart should identify percentage ownership interests at each level of the structure.
7. The Certificate of Limited Partnership for Greystone Meridian Partners Fund III, L.P. filed with the Secretary of State of the State of Delaware, including all amendments and restatements thereof.
8. A current Certificate of Good Standing for Greystone Meridian Partners Fund III, L.P. from the Secretary of State of the State of Delaware, dated within thirty (30) days of the date of this request letter.
9. The Limited Partnership Agreement (including all amendments, supplements, restatements, and side letters thereto) of Greystone Meridian Partners Fund III, L.P. (the "LP Agreement"), together with any investment management agreements or advisory agreements related thereto.
10. The Certificate of Formation for Greystone Meridian Capital LLC filed with the Secretary of State of the State of Delaware, including all amendments and restatements thereof.
11. The Operating Agreement (including all amendments, supplements, restatements, and modifications thereto) of Greystone Meridian Capital LLC (the "GP Operating Agreement").
12. Copies of all resolutions, written consents, or other evidence of authorization for the sale and transfer of the membership interests in each Target Entity, including (a) any resolutions or consents adopted by Greystone Meridian Capital LLC, as general partner of Seller, authorizing the contemplated transaction; (b) any resolutions or consents adopted by the limited partners of Seller, to the extent required under the LP Agreement; (c) any advisory committee or investor advisory board approvals, to the extent required; and (d) a description of the complete approval process required under the LP Agreement and the GP Operating Agreement for a transaction of this nature and the current status of such process.
13. Federal Employer Identification Number (EIN) confirmation letters (IRS Form CP 575 or equivalent documentation) for each Target Entity, for Greystone Meridian Partners Fund III, L.P., and for Greystone Meridian Capital LLC, as follows:
14. Incumbency certificates or specimen signature pages for all authorized signatories of Seller and each Target Entity, including identification of all persons authorized to execute documents, agreements, or instruments on behalf of each entity.
15. A current list of all managers, officers, and authorized representatives of each Target Entity, including their names, titles, contact information, and a description of the scope of their authority.
16. All registered agent appointment letters, designations, or filings for each Target Entity, both in the State of Delaware (identifying the current Delaware registered agent and registered office located at 1209 Orange Street, Wilmington, Delaware 19801) and in each foreign qualification state, including any changes of registered agent or registered office.
17. All annual report filings (or equivalent periodic filings required by applicable state law) for each Target Entity for the past five (5) years, in both the State of Delaware and in each applicable foreign qualification state (Georgia, Texas, Florida, Tennessee, and North Carolina, as applicable), together with evidence of payment of all associated filing fees and franchise taxes.
18. Any and all joint venture agreements, co-investment agreements, side letters, participation agreements, co-lending agreements, or similar arrangements relating to any Target Entity or any Property, including any agreements with limited partners of Seller or their affiliates that may affect the Target Entities or the Properties or the contemplated transaction.
19. Copies of any powers of attorney or similar instruments granted by or on behalf of any Target Entity, whether currently in effect or granted at any time during Seller's ownership period, authorizing any person or entity to act on behalf of any Target Entity.
20. Documentation of Seller's original acquisition of each Target Entity and each Property, including (a) original purchase agreements (including all schedules and exhibits); (b) assignments of membership interests or deeds of conveyance; (c) closing statements and settlement statements (HUD-1s or closing disclosures); (d) title policies obtained at acquisition; and (e) any other closing documents. We understand that the portfolio was assembled between 2019 and 2021, with an aggregate cost basis of approximately $845,000,000, and request confirmation of the acquisition date and purchase price for each individual Property.
21. All UCC financing statements (UCC-1 filings), amendments thereto (UCC-3 filings), continuation statements, and termination statements filed against any Target Entity as debtor, in both the State of Delaware and in each state where a Property is located. Additionally, please provide copies of any pledge agreements, security agreements, or collateral assignment agreements relating to the membership interests in any Target Entity, including any pledges granted to existing lenders or other secured parties.
22. A complete list of all bank accounts maintained by or on behalf of each Target Entity, including the operating accounts maintained at Magnolia Commerce Bank, N.A. (225 Peachtree Street NE, Suite 100, Atlanta, Georgia 30303), together with (a) account numbers for each account; (b) the names of all authorized signatories on each account; (c) the current approximate balance in each account; (d) the type of account (operating, reserve, escrow, money market, etc.); and (e) copies of any bank signature cards, account agreements, or depository resolutions.
CATEGORY II
TITLE AND SURVEY
(Items 23–40)
Please provide the following documents and information relating to title to and surveys of each Property:
23. Owner's title insurance policies for each Property issued at the time of Seller's acquisition, including all endorsements, schedules, and exceptions thereto, and any subsequent endorsements obtained after the date of original issuance.
24. All title commitments, title reports, preliminary title reports, or supplemental title reports currently available for each Property, whether obtained at the time of Seller's acquisition or subsequently in connection with any refinancing, leasing transaction, or other matter.
25. All exception documents referenced in the existing title policies or title commitments for each Property, including but not limited to copies of all recorded easements, restrictions, covenants, conditions, agreements, declarations, reciprocal easement agreements (REAs), condominium declarations, plat maps, subdivision maps, and any other instruments identified as title exceptions or requirements in the existing title documentation.
26. All existing ALTA/NSPS Land Title Surveys or other boundary, topographic, or improvement surveys for each Property, together with any survey certifications, surveyor's opinions, or update letters. Please note that Buyer intends to commission updated ALTA/NSPS Land Title Surveys for all fourteen (14) Properties in compliance with the 2021 Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys through Meridian Land Surveying, Inc., and requests Seller's existing surveys for comparison purposes and to facilitate the update process.
27. Copies of the deeds (warranty deeds, special warranty deeds, grant deeds, or other conveyancing instruments, as applicable) by which each Target Entity acquired fee simple title to its respective Property, together with any correction deeds, supplemental deeds, or quitclaim deeds recorded thereafter.
28. All recorded instruments affecting the Properties, including any amendments to previously recorded documents, filed or recorded since the date of Seller's acquisition of each respective Property, whether by the Target Entity, a tenant, a lender, a utility company, a governmental authority, or any other party.
29. Any unrecorded agreements affecting the Properties, including without limitation any unrecorded easements, licenses, access agreements, development agreements, option agreements, rights of first refusal, rights of first offer, or other unrecorded encumbrances, restrictions, or interests that may affect the use, ownership, or value of any Property.
30. Copies of any boundary agreements, lot line adjustment applications and approvals, lot consolidation agreements, or subdivision plats affecting any Property, including any pending applications for lot line adjustments or subdivisions.
31. Any evidence of pending or threatened condemnation proceedings, eminent domain actions, or governmental taking proceedings affecting any Property, including any correspondence, notices, preliminary notices of intent, or filings by any governmental authority or condemning agency.
32. Copies of any right of way agreements, railroad easements, spur track agreements, utility easement agreements, pipeline easements, or similar agreements affecting any Property, including agreements with utility providers, railroad companies, telecommunications companies, or governmental agencies.
33. All notices or correspondence received from any governmental authority, municipality, county, or state agency regarding proposed or planned street widening projects, right of way acquisitions, special assessment districts, improvement projects, or similar matters affecting any Property.
34. Any condominium declarations, condominium association by-laws, rules and regulations, assessment schedules, reserve studies, or other condominium or owners' association documents, to the extent any Property is subject to or affected by a condominium regime, property owners' association, or similar common interest community arrangement.
35. All tax maps, assessor's parcel maps, and assessor's parcel numbers (APNs) or tax identification numbers (PINs) for each Property, identifying each tax parcel comprising the Property and confirming that each Property constitutes one or more separately assessed tax parcels.
36. Evidence of legal access to public roads for each Property, including copies of all curb cut permits, access permits, driveway permits, access easements, reciprocal easement agreements, and any other agreements or permits that establish or govern vehicular and pedestrian access to each Property from adjacent public roads.
37. All restrictive covenants, deed restrictions, land use restrictions, or other private covenants or restrictions affecting the use, development, or operation of any Property, including any restrictions imposed by prior owners, developers, or governmental agencies.
38. All parking easements, shared parking agreements, cross-access easements, and reciprocal parking arrangements affecting any Property, including any agreements with adjacent property owners or tenants regarding shared parking facilities or access.
39. Any title indemnity agreements, title affidavits, gap indemnity agreements, or similar instruments previously delivered in connection with any Property, whether at the time of Seller's acquisition or subsequently.
40. Copies of any mechanic's lien claims, notices of commencement, notices to owner, preliminary lien notices, or other construction-related lien filings or notices filed or received with respect to any Property, together with copies of any lien releases, waivers, or satisfactions obtained in connection therewith.
CATEGORY III
REAL PROPERTY TAX AND ASSESSMENT
(Items 41–48)
Please provide the following documents and information relating to real property taxes and assessments for each Property:
41. Real property tax bills for each Property for the current tax year (2023) and the prior three (3) tax years (2020, 2021, and 2022), together with evidence of payment of all real property taxes due and payable through the date hereof, including receipts, cancelled checks, or other proof of payment.
42. The current assessed value (including separate assessed values for land and improvements, where available) and the current tax rate (expressed as a millage rate, tax rate per $100 of assessed value, or other applicable format) for each Property, as determined by the applicable county assessor's office, tax collector's office, or other assessing authority in each jurisdiction.
43. Estimated 2024 real property taxes for each Property, including the methodology and assumptions used to derive such estimates. Buyer understands that the aggregate portfolio-wide real property tax estimate for 2024 is approximately $14,760,000 annually, and requests a property-level breakdown of this estimate.
44. Information regarding any pending or contemplated real property tax assessment appeals, valuation challenges, or protests for each Property, including copies of any petitions, applications, or filings submitted to any board of equalization, tax tribunal, or review board, and the current status of any such proceedings.
45. Any notices of reassessment, proposed changes in assessed value, notices of changed assessment, or notices of proposed tax rate changes received from any assessing authority or taxing jurisdiction for each Property, whether currently pending or received during the prior three (3) tax years.
46. Evidence of any special assessment districts, improvement districts, community development districts (CDDs), municipal service taxing units (MSTUs), tax increment financing (TIF) districts, business improvement districts (BIDs), or other special taxing districts affecting any Property, including (a) the enabling legislation or ordinance creating such district; (b) any outstanding bond balances associated with such district; (c) annual levy or assessment amounts; (d) maturity dates for any outstanding bonds; and (e) any rights of prepayment or early satisfaction of special assessment obligations.
47. Copies of any real property tax exemptions, abatements, or incentive agreements applicable to any Property, including any payment-in-lieu-of-taxes (PILOT) agreements, tax abatement agreements, tax credit agreements, enterprise zone designations, or other tax incentive arrangements, together with information regarding the remaining term, conditions, and compliance requirements of each such agreement.
48. Copies of any supplemental tax bills, escape assessments, or corrected tax bills issued for any Property for the prior three (3) tax years, and evidence of payment thereof.
CATEGORY IV
LEASES AND TENANT MATTERS
(Items 49–75)
Please provide the following documents and information relating to leases, subleases, and tenant matters for each Property:
49. Complete copies of all leases, subleases, license agreements, and occupancy agreements currently in effect for each Property, together with all amendments, modifications, letter agreements, side letters, extensions, renewals, expansion agreements, early access agreements, temporary occupancy agreements, and guaranties relating thereto. We understand that there are approximately eighty-seven (87) leases across the portfolio in the aggregate, and request that each lease file be organized to include the original lease and all subsequent modifications in chronological order.
50. A current rent roll for each Property, dated as of December 31, 2023, or the most recent date available, showing the following information for each tenant and each leased space: (a) tenant name; (b) suite number, unit number, or space designation; (c) rentable square feet; (d) lease commencement date; (e) rent commencement date; (f) lease expiration date; (g) current monthly base rent; (h) annual base rent; (i) escalation schedule (including fixed escalations, CPI-based escalations, or fair market value rent resets); (j) all option terms (renewal, expansion, termination); (k) current occupancy status; and (l) any additional comments regarding pending modifications or special provisions.
51. A schedule of all tenant security deposits held by each Target Entity, organized by Property and by tenant, identifying (a) the tenant name; (b) the amount of each security deposit; (c) the form of security deposit (cash, letter of credit, surety bond); and (d) any applicable burn-down or reduction provisions. We understand that aggregate tenant security deposits across the portfolio total approximately $4,283,000.
52. Identification of the depository institution(s) and specific account(s) in which tenant security deposits are held for each Property, together with confirmation of compliance with all applicable state security deposit laws, including any statutory requirements regarding segregation, interest accrual, or notice to tenants in the States of Georgia, Texas, Florida, Tennessee, and North Carolina.
53. Copies of all tenant correspondence files for the prior twenty-four (24) months, including without limitation all notices of default, notices of lease termination, demands for cure, delinquency notices, late payment notices, lease violation notices, and any other material correspondence between any Target Entity (or its property manager, on its behalf) and any tenant at any Property.
54. Copies of all tenant estoppel certificates previously delivered or received in connection with any refinancing, sale, or other transaction involving any Property, including any estoppel certificates delivered to existing lenders.
55. A schedule identifying all Major Tenants at the Properties, defined for purposes of this request as any tenant occupying 25,000 or more rentable square feet (RSF) or generating annual base rent (ABR) of $1,500,000 or more. Buyer's preliminary analysis identifies the following as the top five (5) tenants by ABR across the portfolio:
Please confirm the accuracy of the foregoing information and provide a complete schedule of all Major Tenants.
56. A comprehensive schedule of all renewal options, expansion options, rights of first refusal, rights of first offer, purchase options, termination options, contraction rights, and relocation rights contained in any lease at any Property, identifying for each such option or right: (a) the tenant name; (b) the Property; (c) the type of option or right; (d) the exercise deadline or notice period; (e) the terms upon which the option or right may be exercised; and (f) whether any such option or right has been previously exercised or is currently pending.
57. A schedule of all tenant improvement allowances, landlord work obligations, construction allowances, or building-out obligations currently outstanding, in progress, or committed under any lease, including (a) the total amount of each allowance; (b) the amount disbursed to date; (c) the remaining undisbursed balance; (d) the deadline for disbursement; and (e) a description of any conditions to disbursement.
58. A schedule of all free rent periods, rent abatement periods, or rent concession periods currently in effect or scheduled to commence under any lease, including the tenant name, Property, commencement date, expiration date, and the aggregate dollar amount of the concession.
59. A summary of all co-tenancy provisions, exclusive use provisions, and radius restriction provisions contained in any lease at any Property, identifying the tenant, the Property, and the specific terms and conditions of each such provision.
60. A summary of all assignment, subletting, and transfer provisions contained in each lease at each Property, including any required landlord consents, profit-sharing provisions, recapture rights, and any outstanding sublease or assignment requests. Please also provide copies of all landlord consent letters previously issued in connection with any assignment or subletting.
61. Copies of all subleases and assignments currently in effect at any Property, together with the applicable landlord consent letters and any related documentation.
62. A schedule of all lease commissions payable (whether currently due, accrued, or to become due in the future upon lease renewal or extension) in connection with any lease at any Property, together with complete copies of all brokerage agreements, leasing commission agreements, exclusive listing agreements, and co-brokerage agreements currently in effect.
63. Complete copies of all guaranty agreements supporting any lease at any Property, including corporate guaranties, personal guaranties, parent company guaranties, and any related indemnity agreements, together with identification of the current guarantor(s) and the scope and duration of each guaranty.
64. Copies of all letters of credit held as security under any lease at any Property, including the issuing bank, the beneficiary, the face amount, the current outstanding amount, the expiration date, and any provisions for renewal, replacement, or draw.
65. Tenant financial statements, credit reports, Dunmore Enterprises reports, or other financial information available for the top ten (10) tenants by ABR across the portfolio. To the extent audited financial statements are available, please provide the most recent fiscal year-end statements; to the extent only unaudited statements are available, please provide the most recent available statements.
66. Copies of all pending tenant proposals, letters of intent, term sheets, or draft leases relating to lease negotiations currently underway at any Property, including any new tenant prospects or existing tenant renewals or expansions under negotiation.
67. A schedule of all lease defaults (both monetary and non-monetary) currently outstanding at any Property, together with copies of all default notices, cure notices, and related correspondence issued to or received from any tenant in the prior twenty-four (24) months.
68. A schedule of all tenant-requested modifications, alterations, or improvements currently in progress, under review, or recently completed at any Property, including copies of any landlord consent letters and any requirements for restoration upon lease expiration.
69. Copies of any tenant bankruptcy filings, assignments for the benefit of creditors, receivership proceedings, or workout agreements relating to any tenant at any Property, whether currently pending or resolved within the prior three (3) years.
70. Operating expense reconciliation statements (CAM/OpEx reconciliations) for each Property for the prior three (3) calendar years (2020, 2021, and 2022), together with all backup calculations, supporting worksheets, and summaries of pass-through amounts billed and collected from tenants.
71. Copies of any operating expense audits initiated by tenants or disputes regarding operating expense pass-throughs, including any tenant audit requests, audit reports, dispute notices, settlement agreements, or refund calculations, for the prior three (3) years.
72. A schedule of all parking arrangements at each Property, including any separate parking agreements, parking licenses, reserved parking allocations, and the ratio of parking spaces to rentable square footage at each Property.
73. Copies of all Subordination, Non-Disturbance and Attornment (SNDA) agreements previously executed by tenants at any Property in favor of existing lenders, together with any related estoppels or comfort letters.
74. Copies of any tenant relocation agreements, early termination agreements, lease buy-out agreements, or surrender agreements executed at any Property, whether currently in effect or completed within the prior three (3) years.
75. Information regarding any pending or threatened litigation by or against any tenant at any Property, including unlawful detainer actions, breach of lease claims, rent disputes, or other tenant-related litigation or disputes.
CATEGORY V
EXISTING MORTGAGE DEBT AND FINANCING DOCUMENTS
(Items 76–95)
Please provide the following documents and information relating to existing mortgage debt and financing arrangements for each Property and each Target Entity. We understand that the Properties are currently encumbered by three (3) separate loan facilities, as described below:
76. Complete copies of all loan documents for the Pinnacle Federal Bank, N.A. loan facility, including without limitation the Master Loan Agreement dated September 15, 2020 (as amended, restated, supplemented, or otherwise modified from time to time), and all individual loan supplements for Loans 1-A through 1-H securing eight (8) logistics Properties. We understand that this facility has an aggregate outstanding principal balance of approximately $421,600,000, bears interest at a fixed rate of 4.22% per annum, and has a maturity date of July 1, 2028. Please provide complete copies of all loan documents, including without limitation the master loan agreement, each loan supplement, promissory notes, deeds of trust, mortgages, assignments of leases and rents, environmental indemnity agreements, guaranty agreements, reserve agreements, and any other documents executed in connection with this facility.
77. Complete copies of all loan documents for the Veltrano Capital Lending Corp. loan facility, including without limitation the Loan Agreement dated February 1, 2021 (as amended, restated, supplemented, or otherwise modified from time to time), and all individual loan supplements for Loans 2-A through 2-D securing four (4) office Properties. We understand that this facility has an aggregate outstanding principal balance of approximately $142,300,000, bears interest at a fixed rate of 4.68% per annum, and has a maturity date of March 1, 2029. Please provide complete copies of all loan documents executed in connection with this facility.
78. Complete copies of all loan documents for the Sycamore Life Insurance Company loan facility, including without limitation the Note Purchase Agreement dated November 22, 2019 (as amended, restated, supplemented, or otherwise modified from time to time), and all individual loan supplements for Loans 3-A and 3-B securing two (2) logistics Properties. We understand that this facility has an aggregate outstanding principal balance of approximately $48,100,000, bears interest at a fixed rate of 3.95% per annum, and has a maturity date of December 1, 2030. Please provide complete copies of all loan documents executed in connection with this facility.
79. All promissory notes, deeds of trust, mortgages, deeds to secure debt, assignments of leases and rents, security agreements, and UCC financing statements filed in connection with each of the three (3) loan facilities, organized by loan and by Property.
80. All amendments, modifications, waivers, forbearance agreements, supplemental agreements, extension agreements, spreader agreements, or other modifications to the loan documents for each of the three (3) loan facilities, in chronological order.
81. All loan assumption provisions, assignment provisions, or transfer provisions in each loan agreement, including all change of control provisions, consent requirements, transfer restrictions, and any provisions regarding "Permitted Transfers," together with any related definitions and conditions. Please also provide any lender guidance, correspondence, or informal communications regarding the process and requirements for obtaining lender consent to the contemplated transaction.
82. All guaranty agreements (including carve-out or non-recourse carve-out guaranties, environmental indemnity agreements, completion guaranties, and payment guaranties) executed in connection with each of the three (3) loan facilities, identifying the current guarantor(s) for each facility, the scope and conditions of each guaranty, and any events that trigger full recourse liability.
83. All provisions relating to replacement guarantor requirements under each loan facility, including any minimum tangible net worth covenants, minimum liquid asset requirements, financial reporting obligations, and other conditions to approval of a replacement guarantor. Buyer anticipates that the lenders may require a replacement guarantor with a minimum tangible net worth of $500,000,000 and minimum liquid assets of $50,000,000, and requests confirmation of the actual requirements under each facility.
84. Identification of all consent fees, assumption fees, transfer fees, or similar charges required under each loan agreement in connection with a transfer of the ownership interests in the Target Entities or a change of control of the borrower entities. Buyer's preliminary analysis anticipates the following consent fees:
Please confirm the accuracy of the foregoing fee calculations and identify any additional costs, expenses, or conditions associated with obtaining lender consent.
85. All lockbox agreements, cash management agreements, restricted account agreements, deposit account control agreements, and reserve account agreements relating to each Property and each loan facility, including identification of the financial institution(s) maintaining such accounts and the current terms and conditions thereof.
86. A schedule of current reserve account balances for each loan facility, organized by reserve type, including (a) real property tax reserves; (b) insurance reserves; (c) capital expenditure reserves; (d) tenant improvement reserves; (e) leasing commission reserves; (f) ground rent reserves (if applicable); (g) seasonality reserves; and (h) any other reserves required under the loan documents.
87. All interest rate swap agreements, interest rate cap agreements, collar agreements, or other hedging instruments or derivative contracts entered into by any Target Entity or Seller in connection with any loan, including confirmation of the notional amount, the fixed rate or cap rate, the counterparty, the effective date, and the maturity date of each such instrument.
88. Current loan amortization schedules for each individual loan under each of the three (3) loan facilities, including the current outstanding principal balance, the monthly debt service payment amount (principal and interest), the next payment date, and the remaining amortization term.
89. Copies of the most recent annual and quarterly borrower compliance certificates delivered to each lender, including debt service coverage ratio (DSCR) calculations, financial covenants, and any other required certifications.
90. Any notices of default, notices of event of default, cure notices, or related correspondence delivered by or to any lender in the prior thirty-six (36) months, and copies of any cure or remedy documentation.
91. Copies of all lender consent letters, transfer approval letters, or no-objection letters previously obtained from any lender in connection with any prior transfer of ownership interests, refinancing, modification, or other transaction requiring lender approval.
92. All subordination agreements, intercreditor agreements, or co-lender agreements among the three (3) lenders, or between any of the three (3) lenders and any other secured party.
93. All lender's title insurance policies (mortgagee policies) issued in connection with each loan, including all endorsements thereto.
94. All material correspondence between Seller (or any Target Entity, as borrower) and each lender for the prior twenty-four (24) months, including annual inspection reports, financial reporting, and any communications regarding the Properties or the loan facilities.
95. Contact information for each lender's designated loan officer and outside counsel, as follows:
• Pinnacle Federal Bank, N.A.: Bradley Carston, Senior Vice President; outside counsel: Whitfield & Archer LLP (Sandra Whitfield, Partner)
• Veltrano Capital Lending Corp.: Denise Alvarado, Managing Director; outside counsel: Cranford McCabe LLP (Leo Cranford, Partner)
• Sycamore Life Insurance Company: Graham Hilliard, Vice President; outside counsel: Partridge Wynn & Slater LLP (Claire Wynn, Partner)
Please confirm the accuracy of the foregoing contact information and provide direct telephone numbers and email addresses for each individual listed above.
CATEGORY VI
ENVIRONMENTAL
(Items 96–108)
Please provide the following documents and information relating to environmental conditions, compliance, and assessments for each Property:
96. All Phase I Environmental Site Assessments (ESAs) prepared for each Property in accordance with ASTM Standard E1527-21 (or the applicable prior version of the ASTM standard in effect at the time of preparation), including any updates, re-certifications, or reliance letters issued in connection therewith. Please include Phase I ESAs prepared at the time of Seller's acquisition of each Property as well as any subsequent updates.
97. All Phase II Environmental Site Assessments, subsurface investigations, soil sampling reports, groundwater sampling reports, or supplemental environmental assessments prepared for each Property, together with all laboratory analytical results and data tables.
98. Any environmental remediation plans, corrective action plans, risk-based corrective action (RBCA) plans, voluntary cleanup program (VCP) applications and approvals, and institutional or engineering controls associated with environmental conditions at any Property.
99. All regulatory correspondence (federal, state, and local) relating to environmental conditions, compliance, or enforcement at any Property, including all correspondence with the U.S. Environmental Protection Agency (EPA) and with the applicable state environmental agencies: the Georgia Environmental Protection Division (EPD), the Texas Commission on Environmental Quality (TCEQ), the Florida Department of Environmental Protection (FDEP), the Tennessee Department of Environment and Conservation (TDEC), and the North Carolina Department of Environmental Quality (NCDEQ).
100. All environmental compliance permits, registrations, approvals, and certifications for each Property, including but not limited to air quality permits, wastewater discharge permits, National Pollutant Discharge Elimination System (NPDES) permits, stormwater pollution prevention plan (SWPPP) permits, solid waste and hazardous waste permits, and any other environmental permits required for the operation of each Property.
101. All underground storage tank (UST) documentation for each Property, including UST registration certificates, closure reports, tank integrity testing results (tightness testing), tank removal documentation, monitoring well reports, and any associated regulatory correspondence or compliance notifications.
102. All above-ground storage tank (AST) documentation for each Property, including AST registrations, Spill Prevention, Control, and Countermeasure (SPCC) plans, facility response plans, and inspection records.
103. Any asbestos-containing materials (ACM) surveys, management plans, operations and maintenance (O&M) plans, or abatement reports for each Property, including any surveys conducted in compliance with the Asbestos Hazard Emergency Response Act (AHERA) or applicable state regulations.
104. Any lead-based paint (LBP) surveys, assessments, risk assessments, or abatement reports for each Property, together with any required disclosures under the Residential Lead-Based Paint Hazard Reduction Act, to the extent applicable.
105. Any mold assessments, mold remediation reports, moisture intrusion investigations, or indoor environmental quality (IEQ) assessments for each Property.
106. Any wetlands delineations, jurisdictional determinations (preliminary or approved), Army Corps of Engineers (USACE) correspondence, Section 404 permits, or state wetlands permits relating to any Property, together with any mitigation plans, mitigation bank credits, or conservation easements associated therewith.
107. All environmental insurance policies (including pollution legal liability policies, environmental site liability policies, and contractor's pollution liability policies) currently in effect or previously in effect during Seller's ownership period for each Property, including all declarations pages, endorsements, premium schedules, and claims history.
108. Any indoor air quality (IAQ) studies, vapor intrusion assessments, sub-slab vapor sampling reports, or radon testing results for each Property.
Note: Buyer has engaged Trident Environmental Group LLC (contact: Rachel Kwan, Senior Environmental Scientist) to conduct independent Phase I Environmental Site Assessments for all fourteen (14) Properties in accordance with ASTM Standard E1527-21. Buyer will compare the results of its independent Phase I ESAs with Seller's existing environmental reports and may submit supplemental requests for additional environmental documentation based upon the findings of such assessments.
CATEGORY VII
PROPERTY CONDITION AND ENGINEERING
(Items 109–120)
Please provide the following documents and information relating to the physical condition and engineering characteristics of each Property:
109. All property condition assessments (PCAs) or engineering reports prepared for each Property in accordance with ASTM Standard E2018-15 (or the applicable prior version in effect at the time of preparation), including any updates, addenda, or supplemental reports, together with identification of the engineering firm that prepared each report.
110. All roof condition reports, roof inspection reports, roof warranty documentation (including manufacturer's warranties and contractor's workmanship warranties), and maintenance records for each Property, including infrared roof moisture surveys, core samples, and photographic documentation of roof conditions.
111. All structural engineering reports, foundation assessments, seismic studies, geotechnical reports, or soil reports for each Property, including any reports addressing foundation settlement, structural integrity, or seismic vulnerability.
112. HVAC system inventories for each Property, including equipment type, manufacturer, model number, capacity (tonnage), installation date, estimated useful life, and replacement cost estimates, together with all preventive maintenance records, service contracts, and replacement schedules.
113. Elevator and escalator inspection certificates, maintenance contracts, modernization proposals, and compliance reports for each Property, including evidence of compliance with all applicable state and local elevator safety codes and certificates of operation issued by the applicable authority having jurisdiction.
114. Fire and life safety system documentation for each Property, including (a) fire alarm system inspection and testing reports; (b) automatic sprinkler system inspection, testing, and maintenance reports; (c) fire suppression system (dry chemical, clean agent, or foam) inspection reports; (d) fire pump test records; (e) fire extinguisher inspection logs; and (f) certificates of compliance issued by the local fire marshal or fire department.
115. ADA (Americans with Disabilities Act) compliance surveys, accessibility assessments, and Title III compliance audits for each Property, including identification of any existing accessibility barriers and any remediation plans or improvements implemented or planned.
116. All capital expenditure budgets, capital expenditure histories, and capital expenditure projections for each Property, covering the trailing three (3) fiscal years (2020, 2021, and 2022) and projecting forward for the next five (5) years (2023 through 2027), categorized by type of expenditure (roof, HVAC, electrical, plumbing, parking, elevators, tenant improvements, common area improvements, life safety, etc.).
117. All building permits (including construction permits, mechanical permits, electrical permits, and plumbing permits) obtained for each Property during Seller's ownership period, together with all certificates of occupancy (temporary and final), final inspection approvals, and compliance letters from the applicable building department or authority having jurisdiction.
118. All warranties from contractors, manufacturers, or suppliers currently in effect for any building systems, components, materials, or equipment at each Property, including roof warranties, HVAC equipment warranties, elevator warranties, and any extended service agreements.
119. As-built drawings, architectural plans, mechanical/electrical/plumbing (MEP) plans, structural drawings, site plans, and any other construction drawings for each Property, in both electronic format (Glenrock Technologies, Revit, or PDF) and hard copy, to the extent available.
120. Parking lot and parking structure condition reports, pavement condition assessments, pavement core samples, striping plans, and any pavement management plans or repair/replacement schedules for each Property.
Note: Buyer has engaged Rampart Building Sciences, Inc. (contact: Alan Westbrook, PE, Principal Engineer) to conduct independent property condition assessments for all fourteen (14) Properties in accordance with ASTM Standard E2018-15. Buyer will compare the results of its independent PCAs with Seller's existing engineering reports and may submit supplemental requests for additional engineering documentation based upon the findings of such assessments.
CATEGORY VIII
ZONING AND LAND USE
(Items 121–130)
Please provide the following documents and information relating to zoning, land use, and entitlements for each Property:
121. Copies of all applicable zoning ordinances, zoning code provisions, zoning maps, and zoning classification designations for each Property, identifying the current zoning district or zoning classification applicable to each Property and the permitted uses, dimensional requirements (setbacks, lot coverage, building height, floor area ratio), and parking requirements applicable thereto.