1036-00004 · Client 1036 · Transaction Documents/Exhibits

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EXHIBIT D

FORM OF BUYER'S CLOSING CERTIFICATE

BUYER'S CLOSING CERTIFICATE

Delivered pursuant to Section 9.3(b)(iv) of that certain Purchase and Sale Agreement dated as of February 28, 2024 (as amended by that certain First Amendment dated April 12, 2024 and that certain Second Amendment dated May 28, 2024, collectively, the "Agreement"), by and between Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership ("Seller"), and Fairwater Real Estate Investment Trust, a Maryland real estate investment trust ("Buyer").

Closing Date: June 6, 2024

Capitalized terms used but not otherwise defined in this Buyer's Closing Certificate (this "Certificate") shall have the meanings ascribed to such terms in the Agreement.

Section 1. Delivery and Authorization.

This Certificate is delivered by Buyer to Seller pursuant to Section 9.3(b)(iv) of the Agreement as a condition to Seller's obligation to consummate the Closing. The undersigned, Marcus Devereaux, hereby certifies that he is a duly authorized officer of Fairwater Real Estate Investment Trust, holding the office of Executive Vice President, Acquisitions, and is duly authorized to execute and deliver this Certificate on behalf of Buyer. The undersigned further certifies that no separate or additional corporate, trust, or other organizational action is required for the execution and delivery of this Certificate by the undersigned on behalf of Buyer.

The undersigned has reviewed the representations and warranties of Buyer set forth in the Agreement, and has made or caused to be made such inquiries and investigations as are necessary and appropriate to provide the certifications set forth herein. In connection with the preparation and delivery of this Certificate, the undersigned has consulted with the knowledge individuals identified in Section 5 below and has reviewed such records, documents, and other information of Buyer as the undersigned deemed necessary or appropriate in connection with the delivery of this Certificate.

Section 2. Bring-Down of Representations and Warranties.

Buyer hereby certifies that each of the representations and warranties of Buyer set forth in Article VII of the Agreement is true and correct in all material respects as of the date hereof (the "Closing Date") as though made on and as of the Closing Date, except to the extent any such representation or warranty expressly relates to an earlier date, in which case such representation or warranty was true and correct in all material respects as of such earlier date. Without limiting the generality of the foregoing, Buyer hereby specifically certifies the continued truth and correctness in all material respects of the following representations and warranties as of the Closing Date:

2.1 Organization and Authority (Section 7.1 of the Agreement).

Buyer is a real estate investment trust duly organized, validly existing, and in good standing under the laws of the State of Maryland. Buyer has not been dissolved, merged, or consolidated with any other entity, and no proceedings for the dissolution, merger, or consolidation of Buyer have been commenced or are contemplated. Buyer is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required for the consummation of the transactions contemplated by the Agreement. Buyer is listed on the New York Stock Exchange under the ticker symbol "FREIT" and is in compliance with all applicable listing standards and requirements of the New York Stock Exchange. Buyer has full power and authority to execute and deliver the Agreement and all documents, instruments, and agreements to be executed by Buyer at the Closing (collectively, the "Buyer Closing Documents"), and to perform all of Buyer's obligations under the Agreement and such Buyer Closing Documents.

2.2 Due Authorization; Binding Obligation (Section 7.2 of the Agreement).

The execution, delivery, and performance by Buyer of the Agreement and all Buyer Closing Documents have been duly authorized by all necessary action on the part of Buyer, including all requisite approvals of Buyer's board of trustees. No further action, vote, consent, or approval of any trustee, officer, beneficiary, or other person or entity is necessary or required in connection with the execution, delivery, and performance by Buyer of the Agreement or any Buyer Closing Document. The Agreement and each Buyer Closing Document to which Buyer is a party constitutes (or, upon execution and delivery thereof, will constitute) the legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its respective terms, subject in each case to (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and similar laws of general applicability affecting the enforcement of creditors' rights generally, and (b) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).

2.3 No Conflicts; Consents (Section 7.3 of the Agreement).

The execution, delivery, and performance by Buyer of the Agreement and the Buyer Closing Documents, and the consummation of the transactions contemplated hereby and thereby, do not and will not:

(a) violate or conflict with the declaration of trust, as amended and supplemented, or the bylaws (or equivalent organizational documents) of Buyer;

(b) violate any applicable law, statute, regulation, rule, order, judgment, injunction, or decree of any court, governmental authority, or regulatory body applicable to Buyer or by which Buyer or any of its properties or assets may be bound;

(c) result in a breach of, constitute a default under (whether with or without the giving of notice, the lapse of time, or both), or give rise to any right of termination, cancellation, acceleration, or loss of any benefit under, or result in a violation of, any material agreement, contract, mortgage, deed of trust, indenture, lease, license, permit, or other instrument to which Buyer is a party or by which Buyer or any of its properties or assets is bound; or

(d) result in the creation or imposition of any lien, encumbrance, charge, or restriction upon any of the properties or assets of Buyer.

No consent, approval, authorization, license, permit, order, or filing of, with, or to any court, governmental authority, regulatory body, or other third party is required for Buyer's execution and delivery of the Agreement and the Buyer Closing Documents or consummation of the transactions contemplated hereby and thereby, other than (i) those that have been duly obtained or made prior to the Closing Date and remain in full force and effect, and (ii) those required under the Assumed Loan Documents, which have been obtained as set forth in Section 3 below.

2.4 Litigation (Section 7.4 of the Agreement).

There is no action, suit, proceeding, claim, arbitration, mediation, investigation, or inquiry pending or, to Buyer's knowledge, threatened in writing against Buyer or any of its subsidiaries or affiliates before any court, governmental authority, administrative tribunal, or arbitral body that would, individually or in the aggregate, materially impair Buyer's ability to consummate the transactions contemplated by the Agreement or perform its obligations thereunder. No judgment, order, decree, injunction, or ruling has been entered or issued against Buyer that would have such an effect.

2.5 Financial Capacity / Sufficiency of Funds (Section 7.5 of the Agreement).

Buyer has, or will have at Closing, sufficient cash, available lines of credit, or other sources of immediately available funds to enable Buyer to pay the Cash Equity at Closing and to consummate the transactions contemplated by the Agreement. The Cash Equity at Closing shall equal the Purchase Price less the aggregate outstanding principal balance of the Assumed Debt, being Four Hundred Eighty-Eight Million Dollars ($488,000,000), subject to prorations, credits, and adjustments as set forth in the Agreement, including the PCA credit of One Million Seventy Thousand Dollars ($1,070,000) and all other prorations and adjustments required pursuant to Article X of the Agreement. Without limiting the generality of the foregoing, Buyer has access to that certain $750,000,000 unsecured revolving credit facility (the "Revolving Credit Facility") with Aldgate National Bank, N.A., as administrative agent, dated August 14, 2022, with an applicable margin of the Secured Overnight Financing Rate ("SOFR") plus 130 basis points. As of the Closing Date, sufficient availability exists under the Revolving Credit Facility, together with Buyer's other available cash and liquid assets, to fund the Cash Equity at Closing. Buyer acknowledges that its obligation to consummate the transactions contemplated by the Agreement is not subject to any financing contingency.

2.6 ERISA (Section 7.6 of the Agreement).

Buyer is not, and is not acting on behalf of, (a) an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), (b) a "plan" as defined in and subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or (c) an entity whose underlying assets include "plan assets" within the meaning of 29 C.F.R. § 2510.3-101, as modified by Section 3(42) of ERISA, by reason of an employee benefit plan's or plan's investment in such entity. Buyer's acquisition of the interests in the Target Entities will not constitute or give rise to a non-exempt "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code.

2.7 OFAC / Anti-Money Laundering (Section 7.7 of the Agreement).

Neither Buyer nor any of its affiliates, trustees, officers, or directors is a person or entity with whom transactions are restricted or prohibited under any executive order, statute, regulation, or list administered or enforced by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury, including, without limitation, the Specially Designated Nationals and blocked Persons List maintained by OFAC, the Sectoral Sanctions Identifications List maintained by OFAC, the Foreign Sanctions Evaders List maintained by OFAC, or any other restricted party list maintained by OFAC or the U.S. Department of State. Neither Buyer nor any of its affiliates is located in, organized under the laws of, or a resident of any country or territory that is the subject of comprehensive sanctions administered by OFAC (as of the Closing Date, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People's Republic, and Luhansk People's Republic regions of Ukraine). Buyer is in compliance in all material respects with all applicable anti-money laundering laws and regulations, including, without limitation, the USA PATRIOT Act of 2001 (Title III of Pub. L. 107-56), the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq.), and the regulations promulgated thereunder by the Financial Crimes Enforcement Network of the U.S. Department of the Treasury.

2.8 No Bankruptcy (Section 7.8 of the Agreement).

No petition in bankruptcy (whether voluntary or involuntary), assignment for the benefit of creditors, or petition seeking reorganization, liquidation, dissolution, arrangement, composition, or readjustment under any federal or state bankruptcy, insolvency, or debtor relief law has been filed by or against Buyer, and no such filing is contemplated by Buyer. Buyer has not been adjudicated as bankrupt or insolvent, and no receiver, trustee, custodian, liquidator, or similar official has been appointed for Buyer or for all or any substantial part of Buyer's properties or assets. Buyer is not generally unable to pay its debts as they become due and is not contemplating any action that would constitute an event of bankruptcy, insolvency, or similar proceeding.

2.9 Replacement Guarantor Qualification (Section 7.9 of the Agreement).

Buyer meets the financial covenants required under the Assumed Loan Documents for the replacement guarantor with respect to each of the Assumed Loans, including, without limitation:

(a) minimum tangible net worth of not less than Five Hundred Million Dollars ($500,000,000); and

(b) minimum liquid assets of not less than Fifty Million Dollars ($50,000,000),

in each case, determined in accordance with generally accepted accounting principles in the United States ("GAAP") as of the most recent fiscal quarter end (being the fiscal quarter ended March 31, 2024). Buyer has delivered to Seller and to each of the applicable lenders under the Assumed Loans financial statements and certifications demonstrating Buyer's compliance with such financial covenants, and such financial statements were prepared in accordance with GAAP and fairly present, in all material respects, the financial condition and results of operations of Buyer as of the dates and for the periods indicated therein.

Section 3. Covenants Compliance.

Buyer hereby certifies that Buyer has performed and complied in all material respects with all covenants, agreements, and obligations required by the Agreement to be performed or complied with by Buyer on or before the Closing Date. Without limiting the generality of the foregoing, Buyer specifically certifies that the following covenants and obligations have been duly performed and complied with by Buyer:

(a) Earnest Money Deposit. Buyer delivered the initial Earnest Money Deposit of Twenty-Seven Million Five Hundred Thousand Dollars ($27,500,000) on March 1, 2024, and the Additional Deposit of Twenty-Seven Million Five Hundred Thousand Dollars ($27,500,000) on April 16, 2024, for aggregate deposits of Fifty-Five Million Dollars ($55,000,000) (the "Deposits"), in each case to Commonwealth National Title Insurance Company, as escrow agent (the "Escrow Agent"), in accordance with the terms of the Agreement and the Escrow Agreement dated as of February 28, 2024. The Deposits are being held by the Escrow Agent in interest-bearing accounts and are available for application at Closing in accordance with Section 3.2 of the Agreement.

(b) Replacement Guaranties. Buyer has duly executed and delivered the Replacement Guaranties in favor of each of (i) Pinnacle Federal Bank, N.A., as lender under that certain loan in the original principal amount of $212,000,000, (ii) Veltrano Capital Lending Corp., as lender under that certain loan in the original principal amount of $195,000,000, and (iii) Sycamore Life Insurance Company, as lender under that certain loan in the original principal amount of $81,000,000, in each case in the forms required by the respective Assumed Loan Documents and as approved by the applicable lender.

(c) Assumption Agreements. Buyer has duly executed and delivered the Assumption Agreements for each of the Assumed Loans, including all ancillary documentation required by the applicable lenders, including, without limitation, replacement environmental indemnity agreements, replacement UCC-1 financing statements, and updated borrower organizational certificates.

(d) Insurance. Buyer has caused to be bound the insurance coverages required pursuant to Exhibit M to the Agreement, including, without limitation, all-risk property insurance, commercial general liability insurance, umbrella/excess liability insurance, environmental liability insurance, and such other coverages as are required under the Agreement and the Assumed Loan Documents, in each case with Ironclad Indemnity Insurance Company as the primary insurer. Evidence of such insurance coverages, including certificates of insurance naming the applicable lenders and Seller (for the survival period) as additional insureds or loss payees, as applicable, has been delivered to Seller and to each applicable lender.

(e) SNDAs. Buyer has used commercially reasonable efforts to obtain executed Subordination, Non-Disturbance, and Attornment Agreements ("SNDAs") from each of the Major Tenants as required by Section 6.8 of the Agreement. As of the Closing Date, thirty-four (34) of the thirty-eight (38) required Major Tenant SNDAs have been duly executed and delivered by the applicable Major Tenants. The remaining four (4) SNDAs (relating to (i) Crossbridge Pharmaceuticals, Inc. at Meridian Tower II, (ii) Whitfield Data Systems LLC at Gateway Centre, (iii) North Atlantic Insurance Group at Pinnacle Office Park — Building C, and (iv) Valor Defense Solutions, Inc. at Greystone Corporate Center) are subject to the post-closing carve-out provisions set forth in Section 6.8(c) of the Agreement and the SNDA Side Letter dated May 28, 2024 between Buyer and Seller, pursuant to which Buyer has an additional ninety (90) days following the Closing Date to obtain such remaining SNDAs.

(f) Payment of Buyer's Share of Closing Costs. Buyer has paid or caused to be paid, or has authorized Escrow Agent to disburse from Buyer's closing funds, Buyer's share of the following closing costs: (i) consent fees in the aggregate amount of Nine Hundred Twelve Thousand Eight Hundred Twelve and 50/100 Dollars ($912,812.50), representing Buyer's allocable share of the aggregate consent and assumption fees payable to the lenders under the Assumed Loans; (ii) transfer taxes in the aggregate amount of One Million Nine Hundred Twenty-Five Thousand Dollars ($1,925,000), representing Buyer's allocable share of the state and local transfer taxes payable in connection with the transfer of the interests in the Target Entities; (iii) title insurance premiums in the estimated amount of Two Million Four Hundred Twenty Thousand Dollars ($2,420,000), representing the owner's title insurance premiums payable for the issuance of ALTA owner's title insurance policies for each of the Properties; and (iv) survey costs in the estimated amount of One Hundred Ninety-Six Thousand Dollars ($196,000), representing the costs of updated ALTA/NSPS surveys for each of the Properties.

Section 4. No Material Adverse Change.

Buyer hereby certifies that, since the date of the Agreement (February 28, 2024), there has been no material adverse change in the financial condition, business, operations, properties, or prospects of Buyer that would reasonably be expected to impair Buyer's ability to perform its obligations under the Agreement or consummate the transactions contemplated thereby. Without limiting the generality of the foregoing, since the date of the Agreement, (a) Buyer has not incurred any indebtedness or other liabilities, contingent or otherwise, that would, individually or in the aggregate, reasonably be expected to impair Buyer's ability to fund the Cash Equity at Closing or otherwise perform its obligations under the Agreement, (b) there has been no material adverse change in the availability of funds under the Revolving Credit Facility, and (c) Buyer has not experienced any event, condition, or circumstance that has resulted or would reasonably be expected to result in a downgrade of Buyer's credit rating by any nationally recognized statistical rating organization.

Section 5. Knowledge Individuals.

For purposes of this Certificate, the terms "knowledge of Buyer" or "Buyer's knowledge" mean the actual knowledge (without independent investigation or inquiry, except as expressly set forth in the Agreement) of the following individuals:

(a) Marcus Devereaux, Executive Vice President, Acquisitions;

(b) Leah Torrance, Senior Vice President, Asset Management; and

Each of the foregoing individuals is an employee of Buyer or an affiliate of Buyer who has been involved in the negotiation and consummation of the transactions contemplated by the Agreement. The foregoing individuals are the same "knowledge individuals" designated in the Agreement, and no additional persons have been designated as knowledge individuals for purposes of this Certificate or the Agreement.

Section 6. No Other Agreements.

Except as set forth in the Agreement (as amended by the First Amendment and the Second Amendment), the Buyer Closing Documents, the Seller Closing Documents, and the transactions expressly contemplated thereby, there are no side agreements, side letters, understandings, arrangements, or commitments, whether written or oral, between Buyer (or any affiliate of Buyer) and Seller (or any affiliate of Seller) with respect to the Target Entities, the Properties, or any of the transactions contemplated by the Agreement. This Section 6 shall not be deemed to apply to any agreement, understanding, or arrangement entered into after the Closing Date in the ordinary course of business.

Section 7. Survival.

This Certificate is delivered subject to the survival limitations set forth in Article XII of the Agreement. Without limiting the generality of the foregoing, the representations and warranties of Buyer set forth in Article VII of the Agreement and as brought down in Section 2 of this Certificate shall survive the Closing for a period of eighteen (18) months following the Closing Date (i.e., through and including December 6, 2025), except that the representations and warranties of Buyer relating to tax matters set forth in Section 7.10 of the Agreement shall survive the Closing for a period of thirty-six (36) months following the Closing Date (i.e., through and including June 6, 2027). Any claim for breach of a representation or warranty of Buyer must be asserted by written notice to Buyer prior to the expiration of the applicable survival period, and any such claim not so asserted prior to the expiration of the applicable survival period shall be deemed waived and released. The aggregate liability of Buyer for all claims arising under or related to this Certificate and the representations and warranties of Buyer set forth in Article VII of the Agreement shall be subject to the cap and other limitations set forth in Section 12.4 of the Agreement.

Section 8. Limitations and Qualifications.

This Certificate is made solely for the benefit of Seller (and its successors and permitted assigns) and may be relied upon by Seller solely in connection with the Agreement and the transactions contemplated thereby. This Certificate is not intended to, and shall not, confer any rights or remedies upon any person or entity other than Seller, and no third party shall be entitled to rely upon the certifications, representations, or warranties contained herein.

This Certificate shall not be deemed to expand, modify, supplement, or otherwise alter the representations, warranties, covenants, or other obligations of Buyer as set forth in the Agreement. In the event of any conflict or inconsistency between the terms of this Certificate and the terms of the Agreement, the terms of the Agreement shall control and govern.

Notwithstanding anything to the contrary contained herein, the individual executing this Certificate on behalf of Buyer shall have no personal liability whatsoever with respect to the matters certified herein. Seller's sole recourse for any breach of this Certificate or the representations and warranties of Buyer set forth in the Agreement shall be against Buyer and not against any individual trustee, officer, director, employee, agent, or representative of Buyer.

Section 9. Governing Law.

This Certificate shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts-of-law principles that would require the application of the laws of any other jurisdiction, consistent with the governing law provisions of Section 14.9 of the Agreement.

[Signature Page Follows]

[SIGNATURE PAGE TO BUYER'S CLOSING CERTIFICATE]

IN WITNESS WHEREOF, the undersigned has executed this Buyer's Closing Certificate as of the date first set forth above.

BUYER:

FAIRWATER REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust

By: ________

Name: Marcus Devereaux

Title: Executive Vice President, Acquisitions

Date: June 6, 2024

Address for Notices:

Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044

Attention: David Elgin Park, General Counsel

Telephone: (410) 555-8200

Email: dpark@fairwaterreit.com

With a copy to (which shall not constitute notice):

Calderwood & Harkness LLP 450 Park Avenue, 28th Floor New York, New York 10022

Attention: Douglas Fairchild

Telephone: (212) 555-4700

Email: dfairchild@calderwoodharkness.com

EXHIBIT D
FORM OF BUYER'S CLOSING CERTIFICATE
BUYER'S CLOSING CERTIFICATE
Delivered pursuant to Section 9.3(b)(iv) of that certain Purchase and Sale Agreement dated as of February 28, 2024 (as amended by that certain First Amendment dated April 12, 2024 and that certain Second Amendment dated May 28, 2024, collectively, the "Agreement"), by and between Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership ("Seller"), and Fairwater Real Estate Investment Trust, a Maryland real estate investment trust ("Buyer").
Closing Date: June 6, 2024
Capitalized terms used but not otherwise defined in this Buyer's Closing Certificate (this "Certificate") shall have the meanings ascribed to such terms in the Agreement.
Section 1. Delivery and Authorization.
This Certificate is delivered by Buyer to Seller pursuant to Section 9.3(b)(iv) of the Agreement as a condition to Seller's obligation to consummate the Closing. The undersigned, Marcus Devereaux, hereby certifies that he is a duly authorized officer of Fairwater Real Estate Investment Trust, holding the office of Executive Vice President, Acquisitions, and is duly authorized to execute and deliver this Certificate on behalf of Buyer. The undersigned further certifies that no separate or additional corporate, trust, or other organizational action is required for the execution and delivery of this Certificate by the undersigned on behalf of Buyer.
The undersigned has reviewed the representations and warranties of Buyer set forth in the Agreement, and has made or caused to be made such inquiries and investigations as are necessary and appropriate to provide the certifications set forth herein. In connection with the preparation and delivery of this Certificate, the undersigned has consulted with the knowledge individuals identified in Section 5 below and has reviewed such records, documents, and other information of Buyer as the undersigned deemed necessary or appropriate in connection with the delivery of this Certificate.
Section 2. Bring-Down of Representations and Warranties.
Buyer hereby certifies that each of the representations and warranties of Buyer set forth in Article VII of the Agreement is true and correct in all material respects as of the date hereof (the "Closing Date") as though made on and as of the Closing Date, except to the extent any such representation or warranty expressly relates to an earlier date, in which case such representation or warranty was true and correct in all material respects as of such earlier date. Without limiting the generality of the foregoing, Buyer hereby specifically certifies the continued truth and correctness in all material respects of the following representations and warranties as of the Closing Date:
2.1 Organization and Authority (Section 7.1 of the Agreement).
Buyer is a real estate investment trust duly organized, validly existing, and in good standing under the laws of the State of Maryland. Buyer has not been dissolved, merged, or consolidated with any other entity, and no proceedings for the dissolution, merger, or consolidation of Buyer have been commenced or are contemplated. Buyer is duly qualified to transact business and is in good standing in each jurisdiction in which such qualification is required for the consummation of the transactions contemplated by the Agreement. Buyer is listed on the New York Stock Exchange under the ticker symbol "FREIT" and is in compliance with all applicable listing standards and requirements of the New York Stock Exchange. Buyer has full power and authority to execute and deliver the Agreement and all documents, instruments, and agreements to be executed by Buyer at the Closing (collectively, the "Buyer Closing Documents"), and to perform all of Buyer's obligations under the Agreement and such Buyer Closing Documents.
2.2 Due Authorization; Binding Obligation (Section 7.2 of the Agreement).
The execution, delivery, and performance by Buyer of the Agreement and all Buyer Closing Documents have been duly authorized by all necessary action on the part of Buyer, including all requisite approvals of Buyer's board of trustees. No further action, vote, consent, or approval of any trustee, officer, beneficiary, or other person or entity is necessary or required in connection with the execution, delivery, and performance by Buyer of the Agreement or any Buyer Closing Document. The Agreement and each Buyer Closing Document to which Buyer is a party constitutes (or, upon execution and delivery thereof, will constitute) the legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its respective terms, subject in each case to (a) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, and similar laws of general applicability affecting the enforcement of creditors' rights generally, and (b) general principles of equity, including principles of commercial reasonableness, good faith, and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity).
2.3 No Conflicts; Consents (Section 7.3 of the Agreement).
The execution, delivery, and performance by Buyer of the Agreement and the Buyer Closing Documents, and the consummation of the transactions contemplated hereby and thereby, do not and will not:
(a) violate or conflict with the declaration of trust, as amended and supplemented, or the bylaws (or equivalent organizational documents) of Buyer;
(b) violate any applicable law, statute, regulation, rule, order, judgment, injunction, or decree of any court, governmental authority, or regulatory body applicable to Buyer or by which Buyer or any of its properties or assets may be bound;
(c) result in a breach of, constitute a default under (whether with or without the giving of notice, the lapse of time, or both), or give rise to any right of termination, cancellation, acceleration, or loss of any benefit under, or result in a violation of, any material agreement, contract, mortgage, deed of trust, indenture, lease, license, permit, or other instrument to which Buyer is a party or by which Buyer or any of its properties or assets is bound; or
(d) result in the creation or imposition of any lien, encumbrance, charge, or restriction upon any of the properties or assets of Buyer.
No consent, approval, authorization, license, permit, order, or filing of, with, or to any court, governmental authority, regulatory body, or other third party is required for Buyer's execution and delivery of the Agreement and the Buyer Closing Documents or consummation of the transactions contemplated hereby and thereby, other than (i) those that have been duly obtained or made prior to the Closing Date and remain in full force and effect, and (ii) those required under the Assumed Loan Documents, which have been obtained as set forth in Section 3 below.
2.4 Litigation (Section 7.4 of the Agreement).
There is no action, suit, proceeding, claim, arbitration, mediation, investigation, or inquiry pending or, to Buyer's knowledge, threatened in writing against Buyer or any of its subsidiaries or affiliates before any court, governmental authority, administrative tribunal, or arbitral body that would, individually or in the aggregate, materially impair Buyer's ability to consummate the transactions contemplated by the Agreement or perform its obligations thereunder. No judgment, order, decree, injunction, or ruling has been entered or issued against Buyer that would have such an effect.
2.5 Financial Capacity / Sufficiency of Funds (Section 7.5 of the Agreement).
Buyer has, or will have at Closing, sufficient cash, available lines of credit, or other sources of immediately available funds to enable Buyer to pay the Cash Equity at Closing and to consummate the transactions contemplated by the Agreement. The Cash Equity at Closing shall equal the Purchase Price less the aggregate outstanding principal balance of the Assumed Debt, being Four Hundred Eighty-Eight Million Dollars ($488,000,000), subject to prorations, credits, and adjustments as set forth in the Agreement, including the PCA credit of One Million Seventy Thousand Dollars ($1,070,000) and all other prorations and adjustments required pursuant to Article X of the Agreement. Without limiting the generality of the foregoing, Buyer has access to that certain $750,000,000 unsecured revolving credit facility (the "Revolving Credit Facility") with Aldgate National Bank, N.A., as administrative agent, dated August 14, 2022, with an applicable margin of the Secured Overnight Financing Rate ("SOFR") plus 130 basis points. As of the Closing Date, sufficient availability exists under the Revolving Credit Facility, together with Buyer's other available cash and liquid assets, to fund the Cash Equity at Closing. Buyer acknowledges that its obligation to consummate the transactions contemplated by the Agreement is not subject to any financing contingency.
2.6 ERISA (Section 7.6 of the Agreement).
Buyer is not, and is not acting on behalf of, (a) an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), (b) a "plan" as defined in and subject to Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), or (c) an entity whose underlying assets include "plan assets" within the meaning of 29 C.F.R. § 2510.3-101, as modified by Section 3(42) of ERISA, by reason of an employee benefit plan's or plan's investment in such entity. Buyer's acquisition of the interests in the Target Entities will not constitute or give rise to a non-exempt "prohibited transaction" within the meaning of Section 406 of ERISA or Section 4975 of the Code.
2.7 OFAC / Anti-Money Laundering (Section 7.7 of the Agreement).
Neither Buyer nor any of its affiliates, trustees, officers, or directors is a person or entity with whom transactions are restricted or prohibited under any executive order, statute, regulation, or list administered or enforced by the Office of Foreign Assets Control ("OFAC") of the U.S. Department of the Treasury, including, without limitation, the Specially Designated Nationals and blocked Persons List maintained by OFAC, the Sectoral Sanctions Identifications List maintained by OFAC, the Foreign Sanctions Evaders List maintained by OFAC, or any other restricted party list maintained by OFAC or the U.S. Department of State. Neither Buyer nor any of its affiliates is located in, organized under the laws of, or a resident of any country or territory that is the subject of comprehensive sanctions administered by OFAC (as of the Closing Date, Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk People's Republic, and Luhansk People's Republic regions of Ukraine). Buyer is in compliance in all material respects with all applicable anti-money laundering laws and regulations, including, without limitation, the USA PATRIOT Act of 2001 (Title III of Pub. L. 107-56), the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq.), and the regulations promulgated thereunder by the Financial Crimes Enforcement Network of the U.S. Department of the Treasury.
2.8 No Bankruptcy (Section 7.8 of the Agreement).
No petition in bankruptcy (whether voluntary or involuntary), assignment for the benefit of creditors, or petition seeking reorganization, liquidation, dissolution, arrangement, composition, or readjustment under any federal or state bankruptcy, insolvency, or debtor relief law has been filed by or against Buyer, and no such filing is contemplated by Buyer. Buyer has not been adjudicated as bankrupt or insolvent, and no receiver, trustee, custodian, liquidator, or similar official has been appointed for Buyer or for all or any substantial part of Buyer's properties or assets. Buyer is not generally unable to pay its debts as they become due and is not contemplating any action that would constitute an event of bankruptcy, insolvency, or similar proceeding.
2.9 Replacement Guarantor Qualification (Section 7.9 of the Agreement).
Buyer meets the financial covenants required under the Assumed Loan Documents for the replacement guarantor with respect to each of the Assumed Loans, including, without limitation:
(a) minimum tangible net worth of not less than Five Hundred Million Dollars ($500,000,000); and
(b) minimum liquid assets of not less than Fifty Million Dollars ($50,000,000),
in each case, determined in accordance with generally accepted accounting principles in the United States ("GAAP") as of the most recent fiscal quarter end (being the fiscal quarter ended March 31, 2024). Buyer has delivered to Seller and to each of the applicable lenders under the Assumed Loans financial statements and certifications demonstrating Buyer's compliance with such financial covenants, and such financial statements were prepared in accordance with GAAP and fairly present, in all material respects, the financial condition and results of operations of Buyer as of the dates and for the periods indicated therein.
Section 3. Covenants Compliance.
Buyer hereby certifies that Buyer has performed and complied in all material respects with all covenants, agreements, and obligations required by the Agreement to be performed or complied with by Buyer on or before the Closing Date. Without limiting the generality of the foregoing, Buyer specifically certifies that the following covenants and obligations have been duly performed and complied with by Buyer:
(a) Earnest Money Deposit. Buyer delivered the initial Earnest Money Deposit of Twenty-Seven Million Five Hundred Thousand Dollars ($27,500,000) on March 1, 2024, and the Additional Deposit of Twenty-Seven Million Five Hundred Thousand Dollars ($27,500,000) on April 16, 2024, for aggregate deposits of Fifty-Five Million Dollars ($55,000,000) (the "Deposits"), in each case to Commonwealth National Title Insurance Company, as escrow agent (the "Escrow Agent"), in accordance with the terms of the Agreement and the Escrow Agreement dated as of February 28, 2024. The Deposits are being held by the Escrow Agent in interest-bearing accounts and are available for application at Closing in accordance with Section 3.2 of the Agreement.
(b) Replacement Guaranties. Buyer has duly executed and delivered the Replacement Guaranties in favor of each of (i) Pinnacle Federal Bank, N.A., as lender under that certain loan in the original principal amount of $212,000,000, (ii) Veltrano Capital Lending Corp., as lender under that certain loan in the original principal amount of $195,000,000, and (iii) Sycamore Life Insurance Company, as lender under that certain loan in the original principal amount of $81,000,000, in each case in the forms required by the respective Assumed Loan Documents and as approved by the applicable lender.
(c) Assumption Agreements. Buyer has duly executed and delivered the Assumption Agreements for each of the Assumed Loans, including all ancillary documentation required by the applicable lenders, including, without limitation, replacement environmental indemnity agreements, replacement UCC-1 financing statements, and updated borrower organizational certificates.
(d) Insurance. Buyer has caused to be bound the insurance coverages required pursuant to Exhibit M to the Agreement, including, without limitation, all-risk property insurance, commercial general liability insurance, umbrella/excess liability insurance, environmental liability insurance, and such other coverages as are required under the Agreement and the Assumed Loan Documents, in each case with Ironclad Indemnity Insurance Company as the primary insurer. Evidence of such insurance coverages, including certificates of insurance naming the applicable lenders and Seller (for the survival period) as additional insureds or loss payees, as applicable, has been delivered to Seller and to each applicable lender.
(e) SNDAs. Buyer has used commercially reasonable efforts to obtain executed Subordination, Non-Disturbance, and Attornment Agreements ("SNDAs") from each of the Major Tenants as required by Section 6.8 of the Agreement. As of the Closing Date, thirty-four (34) of the thirty-eight (38) required Major Tenant SNDAs have been duly executed and delivered by the applicable Major Tenants. The remaining four (4) SNDAs (relating to (i) Crossbridge Pharmaceuticals, Inc. at Meridian Tower II, (ii) Whitfield Data Systems LLC at Gateway Centre, (iii) North Atlantic Insurance Group at Pinnacle Office Park — Building C, and (iv) Valor Defense Solutions, Inc. at Greystone Corporate Center) are subject to the post-closing carve-out provisions set forth in Section 6.8(c) of the Agreement and the SNDA Side Letter dated May 28, 2024 between Buyer and Seller, pursuant to which Buyer has an additional ninety (90) days following the Closing Date to obtain such remaining SNDAs.
(f) Payment of Buyer's Share of Closing Costs. Buyer has paid or caused to be paid, or has authorized Escrow Agent to disburse from Buyer's closing funds, Buyer's share of the following closing costs: (i) consent fees in the aggregate amount of Nine Hundred Twelve Thousand Eight Hundred Twelve and 50/100 Dollars ($912,812.50), representing Buyer's allocable share of the aggregate consent and assumption fees payable to the lenders under the Assumed Loans; (ii) transfer taxes in the aggregate amount of One Million Nine Hundred Twenty-Five Thousand Dollars ($1,925,000), representing Buyer's allocable share of the state and local transfer taxes payable in connection with the transfer of the interests in the Target Entities; (iii) title insurance premiums in the estimated amount of Two Million Four Hundred Twenty Thousand Dollars ($2,420,000), representing the owner's title insurance premiums payable for the issuance of ALTA owner's title insurance policies for each of the Properties; and (iv) survey costs in the estimated amount of One Hundred Ninety-Six Thousand Dollars ($196,000), representing the costs of updated ALTA/NSPS surveys for each of the Properties.
Section 4. No Material Adverse Change.
Buyer hereby certifies that, since the date of the Agreement (February 28, 2024), there has been no material adverse change in the financial condition, business, operations, properties, or prospects of Buyer that would reasonably be expected to impair Buyer's ability to perform its obligations under the Agreement or consummate the transactions contemplated thereby. Without limiting the generality of the foregoing, since the date of the Agreement, (a) Buyer has not incurred any indebtedness or other liabilities, contingent or otherwise, that would, individually or in the aggregate, reasonably be expected to impair Buyer's ability to fund the Cash Equity at Closing or otherwise perform its obligations under the Agreement, (b) there has been no material adverse change in the availability of funds under the Revolving Credit Facility, and (c) Buyer has not experienced any event, condition, or circumstance that has resulted or would reasonably be expected to result in a downgrade of Buyer's credit rating by any nationally recognized statistical rating organization.
Section 5. Knowledge Individuals.
For purposes of this Certificate, the terms "knowledge of Buyer" or "Buyer's knowledge" mean the actual knowledge (without independent investigation or inquiry, except as expressly set forth in the Agreement) of the following individuals:
(a) Marcus Devereaux, Executive Vice President, Acquisitions;
(b) Leah Torrance, Senior Vice President, Asset Management; and
(c) David Elgin Park, General Counsel.
Each of the foregoing individuals is an employee of Buyer or an affiliate of Buyer who has been involved in the negotiation and consummation of the transactions contemplated by the Agreement. The foregoing individuals are the same "knowledge individuals" designated in the Agreement, and no additional persons have been designated as knowledge individuals for purposes of this Certificate or the Agreement.
Section 6. No Other Agreements.
Except as set forth in the Agreement (as amended by the First Amendment and the Second Amendment), the Buyer Closing Documents, the Seller Closing Documents, and the transactions expressly contemplated thereby, there are no side agreements, side letters, understandings, arrangements, or commitments, whether written or oral, between Buyer (or any affiliate of Buyer) and Seller (or any affiliate of Seller) with respect to the Target Entities, the Properties, or any of the transactions contemplated by the Agreement. This Section 6 shall not be deemed to apply to any agreement, understanding, or arrangement entered into after the Closing Date in the ordinary course of business.
Section 7. Survival.
This Certificate is delivered subject to the survival limitations set forth in Article XII of the Agreement. Without limiting the generality of the foregoing, the representations and warranties of Buyer set forth in Article VII of the Agreement and as brought down in Section 2 of this Certificate shall survive the Closing for a period of eighteen (18) months following the Closing Date (i.e., through and including December 6, 2025), except that the representations and warranties of Buyer relating to tax matters set forth in Section 7.10 of the Agreement shall survive the Closing for a period of thirty-six (36) months following the Closing Date (i.e., through and including June 6, 2027). Any claim for breach of a representation or warranty of Buyer must be asserted by written notice to Buyer prior to the expiration of the applicable survival period, and any such claim not so asserted prior to the expiration of the applicable survival period shall be deemed waived and released. The aggregate liability of Buyer for all claims arising under or related to this Certificate and the representations and warranties of Buyer set forth in Article VII of the Agreement shall be subject to the cap and other limitations set forth in Section 12.4 of the Agreement.
Section 8. Limitations and Qualifications.
This Certificate is made solely for the benefit of Seller (and its successors and permitted assigns) and may be relied upon by Seller solely in connection with the Agreement and the transactions contemplated thereby. This Certificate is not intended to, and shall not, confer any rights or remedies upon any person or entity other than Seller, and no third party shall be entitled to rely upon the certifications, representations, or warranties contained herein.
This Certificate shall not be deemed to expand, modify, supplement, or otherwise alter the representations, warranties, covenants, or other obligations of Buyer as set forth in the Agreement. In the event of any conflict or inconsistency between the terms of this Certificate and the terms of the Agreement, the terms of the Agreement shall control and govern.
Notwithstanding anything to the contrary contained herein, the individual executing this Certificate on behalf of Buyer shall have no personal liability whatsoever with respect to the matters certified herein. Seller's sole recourse for any breach of this Certificate or the representations and warranties of Buyer set forth in the Agreement shall be against Buyer and not against any individual trustee, officer, director, employee, agent, or representative of Buyer.
Section 9. Governing Law.
This Certificate shall be governed by and construed in accordance with the laws of the State of New York, without regard to conflicts-of-law principles that would require the application of the laws of any other jurisdiction, consistent with the governing law provisions of Section 14.9 of the Agreement.
[Signature Page Follows]
[SIGNATURE PAGE TO BUYER'S CLOSING CERTIFICATE]
IN WITNESS WHEREOF, the undersigned has executed this Buyer's Closing Certificate as of the date first set forth above.
BUYER:
FAIRWATER REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust
By: ________
Name: Marcus Devereaux
Title: Executive Vice President, Acquisitions
Date: June 6, 2024
Address for Notices:
Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
Attention: David Elgin Park, General Counsel
Telephone: (410) 555-8200
Email: dpark@fairwaterreit.com
With a copy to (which shall not constitute notice):
Calderwood & Harkness LLP 450 Park Avenue, 28th Floor New York, New York 10022
Attention: Douglas Fairchild
Telephone: (212) 555-4700
Email: dfairchild@calderwoodharkness.com

EXHIBIT D

FORM OF BUYER'S CLOSING CERTIFICATE

BUYER'S CLOSING CERTIFICATE

Record

Parties

Dates

Amounts