EXHIBIT F
FORM OF SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Exhibit F is attached to and forms a part of that certain Purchase and Sale Agreement dated as of February 28, 2024 (the "Purchase and Sale 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").
This form of Subordination, Non-Disturbance and Attornment Agreement is required to be executed by each Major Tenant (as defined in the Purchase and Sale Agreement, being those tenants with annual base rent equal to or exceeding One Million Five Hundred Thousand Dollars ($1,500,000) per annum) in connection with the assumption of existing mortgage indebtedness encumbering the applicable Property. A total of thirty-eight (38) Major Tenant SNDAs are required across the fourteen-property portfolio.
This form is to be adapted for use with each of the three lenders, as applicable:
(i) Pinnacle Federal Bank, N.A., 600 Travis Street, Suite 4400, Houston, TX 77002;
(ii) Veltrano Capital Lending Corp., 200 South Biscayne Boulevard, Suite 3100, Miami, FL 33131; or
(iii) Sycamore Life Insurance Company, 100 Constitution Plaza, Hartford, CT 06103.
The specific loan references, addresses, notice contacts, counsel information, and governing law provisions shall be completed to correspond to the applicable lender, property, and Target Entity, as indicated by bracketed instructions throughout this form.
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This Subordination, Non-Disturbance and Attornment Agreement (this "Agreement") is made as of \\\\\\\\\\\\\\, 2024, by and among:
LENDER: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\, a \\\\\\\\\\\\\\\\\\\\\\\\\, with an address at \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\_
[Insert applicable lender: Pinnacle Federal Bank, N.A., a national banking association, 600 Travis Street, Suite 4400, Houston, TX 77002; or Veltrano Capital Lending Corp., a Delaware corporation, 200 South Biscayne Boulevard, Suite 3100, Miami, FL 33131; or Sycamore Life Insurance Company, a Connecticut stock life insurance company, 100 Constitution Plaza, Hartford, CT 06103]
(together with its successors and assigns, "Lender");
TENANT: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\, a \\\\\\\\\\\\\\\\\\\\\\\\\ organized under the laws of \\\\\\\\\\\\\\\\\\\\\\\\\, with an address at \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
(together with its permitted successors and assigns, "Tenant"); and
LANDLORD: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ LLC, a Delaware limited liability company, with an address at \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
[Insert applicable Target Entity / property-owning SPE]
("Landlord").
Lender, Tenant, and Landlord are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS. A. The Loan. Lender has made or is the holder of a loan (the "Loan") to Landlord, as evidenced by \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
[Insert applicable loan document description: e.g., "that certain Master Loan Agreement dated as of September 15, 2020" (for Pinnacle Federal Bank, N.A.); "that certain Loan Agreement dated as of February 1, 2021" (for Veltrano Capital Lending Corp.); or "that certain Note Purchase Agreement dated as of November 22, 2019" (for Sycamore Life Insurance Company)]
together with all promissory notes, guaranties, indemnity agreements, and all other documents, instruments, and agreements executed and delivered in connection therewith, as the same may have been or may hereafter be amended, modified, supplemented, consolidated, restated, renewed, extended, or replaced from time to time (collectively, the "Loan Documents"), in the original principal amount of \\\\\\\\\\\\\\\\\\\\\\\\\\ Dollars ($\\\\\\\\\\\\\\).
B. The Mortgage/Deed of Trust. The Loan is secured by, among other things, a mortgage, deed of trust, or deed to secure debt (as applicable under the laws of the state in which the Property is located) (as the same may have been or may hereafter be amended, modified, supplemented, consolidated, restated, spread, severed, renewed, extended, or replaced from time to time, the "Mortgage"), encumbering the real property more particularly described on Exhibit A attached hereto and incorporated herein by this reference (the "Property"), which Mortgage was recorded in Book/Liber \\\\\\\\\\, Page \\\\\\\\\\ of the \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
[Insert applicable recording office: e.g., "land records" / "official records" / "register of deeds"]
of \\\\\\\\\\\\\\\\\\\\ County, \\\\\\\\\\\\\\\\\\\\
[Insert applicable state: Georgia, Texas, Florida, Tennessee, or North Carolina]
together with all assignments of rents and leases, security agreements, financing statements, and other documents and instruments securing or otherwise relating to the Loan.
C. The Lease. Tenant occupies a portion of the Property pursuant to that certain lease agreement dated \\\\\\\\\\\\\\\\\\\\, as amended by \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
[Insert all applicable lease amendments, each by date and description]
(as so amended, and as the same may be further amended, modified, supplemented, extended, or renewed in accordance with the terms hereof, collectively, the "Lease"), by and between Landlord (or its predecessor-in-interest), as landlord, and Tenant, as tenant, covering approximately \\\\\\\\\\\\\\\\\\ rentable square feet of the Property, as more particularly described in the Lease and identified on Exhibit B attached hereto (the "Premises").
D. Purpose. Lender, Tenant, and Landlord desire to set forth their respective agreements regarding the relative priorities of the Mortgage and the Lease and the rights and obligations of Tenant, Lender, and Landlord with respect thereto, in order to (i) subordinate the Lease to the Mortgage, (ii) provide for non-disturbance of Tenant's occupancy and rights under the Lease in the event of a Foreclosure Event (as hereinafter defined), and (iii) provide for Tenant's attornment to any Successor Landlord (as hereinafter defined).
E. Change of Control. The execution and delivery of this Agreement is being made in connection with a change of control of Landlord, whereby Fairwater Real Estate Investment Trust, a Maryland real estate investment trust, is acquiring one hundred percent (100%) of the membership interests in Landlord from Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership, with Lender's consent, all as more particularly described in that certain Purchase and Sale Agreement dated as of February 28, 2024, by and between Greystone Meridian Partners Fund III, L.P. and Fairwater Real Estate Investment Trust.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein set forth, the sum of Ten Dollars ($10.00) in hand paid by each Party to the others, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 "Foreclosure Event" shall mean any foreclosure of the Mortgage (whether judicial or non-judicial), any sale under a power of sale contained in the Mortgage, any acceptance by Lender of a deed in lieu of foreclosure (or a deed in lieu of power of sale), any transfer or acquisition of the Property or Landlord's interest therein by Lender or by any purchaser or grantee at a foreclosure sale or sale under power of sale (any such purchaser or grantee, a "Purchaser"), or any other transfer or acquisition of the Property or Landlord's interest therein in connection with the enforcement of the Mortgage or the Loan Documents, or any similar proceeding, event, or transfer under applicable law, including without limitation any transfer resulting from the exercise of a receivership, a conveyance by a receiver, or any other remedy available to Lender under the Loan Documents or applicable law.
Section 1.2 "Successor Landlord" shall mean Lender or any Purchaser that acquires Landlord's interest in the Property or the Lease (or both) as a result of, or in connection with, a Foreclosure Event, and any person or entity that subsequently acquires the Property or the landlord's interest under the Lease from such Lender or Purchaser, including without limitation any nominee, designee, or affiliate of Lender that takes title to the Property.
Section 1.3 "Lease" shall have the meaning set forth in Recital C above, and shall include all amendments, modifications, supplements, extensions, renewals, and replacements thereof now existing or hereafter entered into in accordance with the terms of this Agreement.
Section 1.4 "Loan Documents" shall have the meaning set forth in Recital A above.
Section 1.5 "Mortgage" shall have the meaning set forth in Recital B above.
Section 1.6 "Property" shall have the meaning set forth in Recital B above, together with all improvements now or hereafter located thereon and all appurtenances, rights, privileges, and easements belonging or in any way appertaining thereto.
Section 1.7 "Premises" shall have the meaning set forth in Recital C above.
ARTICLE 2 — SUBORDINATION
Section 2.1 Subordination of Lease to Mortgage. Subject to Section 2.3 below, Tenant hereby agrees that the Lease and all of Tenant's right, title, interest, and estate thereunder are and shall at all times be subject and subordinate in all respects to the lien, charge, operation, and effect of the Mortgage and to all renewals, modifications, consolidations, replacements, spreaders, increases, supplements, and extensions thereof, and to all sums secured thereby and all advances made or hereafter to be made thereunder (whether obligatory or optional), regardless of whether the Lease was executed, delivered, or recorded before or after the execution, delivery, or recording of the Mortgage. The foregoing subordination shall apply to the Mortgage as it may be amended, modified, restated, consolidated, renewed, extended, spread, severed, supplemented, or replaced from time to time, and to any new or replacement mortgage or deed of trust securing any refinancing of the Loan or any portion thereof.
Section 2.2 Automatic Subordination. The subordination provided for in Section 2.1 shall be self-operative, and no further instrument of subordination shall be required to make such subordination effective. Notwithstanding the foregoing, Tenant agrees to execute, acknowledge, and deliver, within fifteen (15) business days after written request from Lender, such further instruments, documents, or certificates confirming or evidencing the subordination of the Lease to the Mortgage as Lender may reasonably request from time to time, in form and substance reasonably satisfactory to Lender and Tenant. In the event Tenant fails to execute, acknowledge, and deliver any such instrument within such fifteen (15) business day period, Tenant hereby irrevocably constitutes and appoints Lender as Tenant's attorney-in-fact, coupled with an interest, to execute and deliver such instrument on Tenant's behalf.
Section 2.3 Condition of Subordination. The subordination of the Lease to the Mortgage provided for in this Article 2 is expressly conditioned upon and subject to Lender's agreement to provide non-disturbance protection to Tenant as set forth in Article 3 below. The subordination provisions of this Article 2 and the non-disturbance provisions of Article 3 are mutually dependent and shall be construed together as a unified agreement. In the event that the non-disturbance provisions of Article 3 are held to be unenforceable by a court of competent jurisdiction, the subordination provisions of this Article 2 shall likewise be deemed unenforceable and of no further force or effect.
ARTICLE 3 — NON-DISTURBANCE
Section 3.1 Lender's Non-Disturbance Covenant. Lender hereby covenants and agrees that, so long as (a) the Lease is in full force and effect, and (b) no Event of Default (as defined in Section 3.2 below) by Tenant exists under the Lease beyond any applicable notice and cure periods provided in the Lease:
(i) Tenant's possession, use, and occupancy of the Premises and Tenant's rights and privileges under the Lease (including, without limitation, any options to extend or renew the term of the Lease, any expansion rights, any rights of first refusal or first offer, any purchase options, and any other rights and benefits of Tenant set forth in the Lease) shall not be disturbed, diminished, terminated, or interfered with by Lender in the exercise of any of its rights or remedies under the Mortgage, the Loan Documents, or applicable law, and Tenant's occupancy of the Premises and enjoyment of its rights under the Lease shall not be affected in any manner whatsoever by reason of any Foreclosure Event or any action taken by Lender in connection therewith;
(ii) Lender will not join Tenant as a party defendant in any action or proceeding to foreclose the Mortgage or to enforce any rights or remedies under the Loan Documents or at law or in equity, except to the extent that such joinder may be required by applicable law solely for procedural or jurisdictional purposes (and not for the purpose of terminating the Lease), in which case Lender shall use commercially reasonable efforts to have Tenant dismissed from such proceeding as promptly as practicable, and no such joinder shall result in the termination of the Lease or otherwise adversely affect Tenant's rights under the Lease or this Agreement; and
(iii) No Foreclosure Event shall terminate or extinguish the Lease or any of Tenant's rights, interests, or estate thereunder, and the Lease shall continue in full force and effect following any Foreclosure Event in accordance with its terms and the terms of this Agreement.
Section 3.2 "Event of Default" Defined. An "Event of Default" for purposes of this Agreement means a default by Tenant under the Lease that has not been cured within any applicable notice period and cure period expressly provided in the Lease for the curing of such default. For the avoidance of doubt, no default by Tenant shall constitute an Event of Default for purposes of this Agreement unless and until the expiration of all applicable notice and cure periods set forth in the Lease with respect to such default without such default having been cured.
Section 3.3 Survival. The non-disturbance protections of this Article 3 shall survive any Foreclosure Event and shall be binding upon Lender, any Successor Landlord, and any person or entity acquiring the Property or the landlord's interest under the Lease from or through Lender or any Successor Landlord, and shall inure to the benefit of Tenant and its permitted successors and assigns under the Lease. The covenants of Lender set forth in this Article 3 shall run with the land and shall be enforceable by Tenant against any Successor Landlord.
ARTICLE 4 — ATTORNMENT
Section 4.1 Tenant's Attornment. If a Foreclosure Event occurs, Tenant shall, and hereby does, attorn to and recognize the Successor Landlord as Tenant's landlord under the Lease, and Tenant shall be bound to the Successor Landlord under all of the terms, covenants, conditions, and obligations of the Lease for the balance of the term thereof remaining and any extensions and renewals thereof (including any renewal periods that have been or are thereafter validly exercised in accordance with the Lease), with the same force and effect as if the Successor Landlord were the original landlord under the Lease. Such attornment shall apply to each successive Successor Landlord that acquires Landlord's interest in the Property or the Lease.
Section 4.2 Automatic Effect. The attornment provided for in Section 4.1 shall be effective and self-operative immediately upon the occurrence of any Foreclosure Event, without the execution of any further instrument or document and without any further action on the part of any Party. The provisions of this Article 4 are self-executing, and neither any act by Tenant nor any notice, demand, or request from Successor Landlord shall be required to make such attornment effective. Notwithstanding the foregoing, Tenant shall, upon the written request of any Successor Landlord, promptly execute and deliver an instrument or instruments confirming such attornment, in form and substance reasonably satisfactory to such Successor Landlord and Tenant.
Section 4.3 Lease Continues. Upon attornment pursuant to this Article 4, the Lease shall continue in full force and effect as a direct lease between the Successor Landlord, as landlord, and Tenant, as tenant, upon all of the terms, covenants, conditions, and obligations set forth in the Lease, except as expressly modified by this Agreement. From and after the date of any such attornment, the Successor Landlord shall be bound to Tenant, and Tenant shall be bound to the Successor Landlord, under all of the terms, covenants, conditions, and obligations of the Lease (as modified by this Agreement) for the remaining balance of the term thereof and any extensions and renewals thereof.
Section 4.4 Confirmation of Attornment. Tenant agrees to execute and deliver to any Successor Landlord, within fifteen (15) business days after written request from such Successor Landlord, a written confirmation of attornment in form and substance reasonably acceptable to such Successor Landlord and Tenant, confirming (a) that the Lease is in full force and effect, (b) the date through which rent has been paid, (c) the amount of any security deposit held by the prior landlord, (d) whether any defaults exist under the Lease, and (e) such other matters as the Successor Landlord may reasonably request. Tenant's failure to deliver such confirmation within such fifteen (15) business day period shall not affect the validity of the attornment provided for in this Article 4, but Tenant shall remain obligated to deliver such confirmation upon request.
ARTICLE 5 — SUCCESSOR LANDLORD PROTECTIONS / LIMITATIONS
Section 5.1 Limitations on Successor Landlord's Liability. Notwithstanding anything to the contrary contained in the Lease, upon the occurrence of a Foreclosure Event, the Successor Landlord shall not be:
(a) liable for any act, omission, default, misrepresentation, or breach of warranty, condition, covenant, or obligation of any prior landlord (including, without limitation, Landlord or any predecessor landlord), whether arising before or after the date of the Foreclosure Event; provided, however, that the foregoing shall not relieve Successor Landlord from liability for defaults of a continuing nature (as distinguished from defaults that can be cured only by the payment of money for acts or omissions that occurred prior to the Foreclosure Event) to the extent such defaults (i) are continuing and remain uncured as of the date the Successor Landlord obtains possession of the Property, (ii) are of a nature that can be cured by the Successor Landlord after obtaining possession of the Property, and (iii) do not require the payment of damages or other sums relating to the period prior to the date of the Foreclosure Event, in which case the Successor Landlord shall cure such continuing defaults within a reasonable time after obtaining possession of the Property;
(b) liable for, or bound by, any rent or additional rent, or other payment of any kind, that Tenant may have prepaid under the Lease for more than one (1) month in advance of the date upon which such payment would otherwise become due, unless such prepayment has been actually received by the Successor Landlord;
(c) subject to any offset, defense, abatement, claim, counterclaim, recoupment, or demand that Tenant may have against any prior landlord (including, without limitation, Landlord or any predecessor landlord), except to the extent arising from a continuing default of the nature described in clause (a) above that is capable of cure by the Successor Landlord and that the Successor Landlord fails to cure within a reasonable time after obtaining possession of the Property;
(d) bound by any amendment, modification, termination, cancellation, or surrender of the Lease made without the prior written consent of Lender, to the extent such consent is required under the Loan Documents at the time of such amendment, modification, termination, cancellation, or surrender, and Tenant acknowledges that any such amendment, modification, termination, cancellation, or surrender made without such required consent shall not be binding upon the Successor Landlord;
(e) liable for the return, refund, or application of any security deposit, whether in the form of cash, letter of credit, or otherwise, unless and to the extent that such security deposit has been actually received by the Successor Landlord or credited to the Successor Landlord's account;
[Note: Aggregate tenant security deposits across the 87-lease portfolio total approximately $4,283,000. Each Major Tenant's individual security deposit is identified on Exhibit B hereto.]
(f) liable for any obligation of any prior landlord (including, without limitation, Landlord) under the Lease to construct, complete, or pay for any tenant improvements, leasehold improvements, build-out, refurbishment, or any other construction or improvement work in or to the Premises or the Property, except to the extent of (i) any unexpended or unfunded tenant improvement allowance or construction obligation that is expressly set forth in the Lease and that accrues after the date of the Foreclosure Event, and (ii) any obligation assumed in writing by the Successor Landlord pursuant to Section 5.2 below;
(g) liable for any consequential, punitive, special, exemplary, or indirect damages of any kind or nature whatsoever, regardless of whether such damages are characterized as actual, direct, or otherwise;
(h) personally liable under the Lease or this Agreement beyond the Successor Landlord's interest in the Property, including rents, issues, profits, insurance proceeds, and condemnation awards received with respect thereto; and upon any transfer, assignment, conveyance, or disposition of the Successor Landlord's interest in the Property to a subsequent transferee or owner, the Successor Landlord shall be automatically and entirely released and relieved from all further liability, obligations, and responsibility under the Lease and this Agreement accruing from and after the date of such transfer, provided, however, that such transferee has assumed in writing all of the obligations of the Successor Landlord under the Lease and this Agreement arising from and after the date of such transfer and that all security deposits held by the Successor Landlord are transferred or credited to such transferee.
Section 5.2 Tenant Improvement Obligations. To the extent the Lease requires Landlord to perform, complete, or fund tenant improvement, leasehold improvement, or build-out work in or to the Premises that has not been fully performed, completed, or funded as of the date of a Foreclosure Event, the Successor Landlord's obligation with respect thereto shall be limited to the unperformed or unfunded portion of such obligation remaining as of the date of the Foreclosure Event, and only to the extent such obligation is expressly assumed by the Successor Landlord in a written instrument delivered to Tenant. In no event shall the Successor Landlord be obligated to expend any sum in excess of the unexpended balance of any tenant improvement allowance or construction fund expressly provided for in the Lease as of the date of the Foreclosure Event. Tenant acknowledges that, except as expressly provided in this Section 5.2, the Successor Landlord shall have no obligation to construct, complete, or pay for any tenant improvements or other work in or to the Premises.
ARTICLE 6 — TENANT COVENANTS AND AGREEMENTS
Section 6.1 Rent Payment Direction. After receiving written notice from Lender (a "Rent Direction Notice") that (a) an event of default has occurred and is continuing under the Loan Documents, and (b) Lender is exercising its right to collect rents, issues, and profits under the Mortgage, an assignment of rents and leases, or any other Loan Document, Tenant shall pay all rent, additional rent, and other sums due or to become due under the Lease directly to Lender (or to such other person or entity, or at such address, as Lender may direct in the Rent Direction Notice) until such time as Lender provides Tenant with written notice that such Rent Direction Notice has been revoked or is no longer in effect (a "Rent Direction Revocation Notice"). Landlord hereby irrevocably authorizes and directs Tenant to make all such payments directly to Lender (or as otherwise directed by Lender) upon Tenant's receipt of a Rent Direction Notice, and Landlord agrees that such authorization and direction shall be binding upon Landlord and any successor or assign of Landlord. Tenant shall be entitled to rely upon any Rent Direction Notice and shall not be required to inquire into the accuracy of the statements therein or the authority of Lender to deliver such notice. Tenant shall not be liable to Landlord, or to any person or entity claiming through or under Landlord, for any payments made to Lender in good faith reliance on a Rent Direction Notice, and all such payments shall be credited against Tenant's obligations under the Lease as if made directly to Landlord.
Section 6.2 Notice of Landlord Default. Tenant agrees to provide Lender with a copy of any written notice of default given by Tenant to Landlord under the Lease simultaneously with, or promptly after (and in no event later than five (5) business days after), the giving of such notice to Landlord, addressed to Lender at the address set forth in Section 7.1 below (or such other address as Lender may designate in writing from time to time). No notice of default given by Tenant to Landlord under the Lease shall be effective against Lender unless and until Lender has received a copy thereof. Lender shall have the right (but not the obligation) to cure any default by Landlord under the Lease, and Tenant shall accept performance by Lender of any obligation of Landlord under the Lease as if performed by Landlord. Lender shall have the following periods within which to cure any default by Landlord:
(a) Monetary Defaults: For defaults by Landlord that can be cured solely by the payment of money, thirty (30) days after Lender's receipt of written notice of such default from Tenant;
(b) Non-Monetary Defaults: For defaults by Landlord that are not susceptible of cure solely by the payment of money, sixty (60) days after Lender's receipt of written notice of such default from Tenant, or such longer period as may be reasonably necessary to effect a cure of such default, provided that Lender has commenced cure efforts within such sixty (60)-day period and thereafter diligently and continuously pursues the cure to completion, including, if necessary or appropriate, the commencement of foreclosure proceedings, receivership proceedings, or other proceedings to obtain possession or control of the Property in order to effect such cure. Tenant shall not exercise any right or remedy under the Lease on account of any default by Landlord (including, without limitation, any right to terminate the Lease, offset rent, or abate rent) unless and until the applicable cure period set forth in this Section 6.2 has expired without the default having been cured by Landlord or Lender.
Section 6.3 No Lease Modification Without Lender Consent. To the extent that the Loan Documents require Lender's prior written consent to any termination, cancellation, amendment, modification, supplement, extension, renewal, or surrender of the Lease (or any waiver of any term, covenant, or condition of the Lease), Tenant acknowledges and agrees that no such termination, cancellation, amendment, modification, supplement, extension, renewal, surrender, or waiver shall be effective or binding upon Lender or any Successor Landlord without the prior written consent of Lender. Tenant agrees not to enter into any such termination, cancellation, amendment, modification, supplement, extension, renewal, surrender, or waiver without first obtaining the prior written consent of Lender (to the extent such consent is required under the Loan Documents). Notwithstanding the foregoing, this Section 6.3 shall not prohibit Tenant from exercising any renewal, extension, or expansion option expressly set forth in the Lease in accordance with the terms thereof, and Lender's consent shall not be required for any such exercise unless specifically required by the Loan Documents.
Section 6.4 Estoppel Certificates. Tenant agrees to deliver to Lender, within fifteen (15) business days after written request from Lender (which request may be made no more than two (2) times in any twelve (12)-month period, except in connection with a sale, refinancing, or securitization of the Loan, in which case no such limitation shall apply), an estoppel certificate in the form required under the Lease (or, if no form is specified in the Lease, in such reasonable form as Lender may request), signed by an authorized officer or representative of Tenant, certifying as to such matters as Lender may reasonably request, including without limitation:
(i) the commencement date and expiration date of the Lease;
(ii) the current monthly base rent payable under the Lease;
(iii) the date through which rent has been paid;
(iv) the amount of any prepaid rent;
(v) the amount and form of any security deposit held by Landlord;
(vi) whether any defaults exist under the Lease (by either Landlord or Tenant), and if so, the nature thereof;
(vii) whether there are any offsets, defenses, abatements, claims, or counterclaims against Landlord;
(viii) whether the Lease has been amended, modified, supplemented, or assigned, and if so, the dates and nature of each such amendment, modification, supplement, or assignment;
(ix) whether any options to extend, renew, expand, or terminate have been exercised;
(x) the square footage of the Premises; and
(xi) such other reasonable matters as Lender may request.
Section 6.5 Insurance Proceeds and Condemnation Awards. Tenant acknowledges that, to the extent provided in the Mortgage and applicable law, insurance proceeds and condemnation awards (or payments in lieu thereof) relating to the Property may be applied by Lender in accordance with the terms of the Loan Documents, including without limitation application to the repayment of the Loan, and Tenant waives any right to object to such application to the extent permitted by applicable law. Nothing in this Section 6.5 shall be construed to modify or diminish any rights of Tenant under the Lease with respect to Tenant's personal property, trade fixtures, or improvements paid for by Tenant that Tenant is entitled to remove under the Lease.
ARTICLE 7 — NOTICE ADDRESSES
Section 7.1 Notice Address for Lender. All notices, requests, demands, consents, and other communications to Lender under this Agreement shall be sent to:
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
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Attention: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\_
Email: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
[Insert applicable lender address and attention line: Pinnacle Federal Bank, N.A., 600 Travis Street, Suite 4400, Houston, TX 77002, Attn: Bradley Carston, Senior Vice President; Veltrano Capital Lending Corp., 200 South Biscayne Boulevard, Suite 3100, Miami, FL 33131, Attn: Denise Alvarado, Managing Director; Sycamore Life Insurance Company, 100 Constitution Plaza, Hartford, CT 06103, Attn: Graham Hilliard, Vice President, Mortgage Investments]
with a copy to Lender's counsel at:
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
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Attention: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\_
Email: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
[Insert applicable lender's counsel: For Pinnacle: Whitfield & Archer LLP, 717 Texas Avenue, Suite 2500, Houston, TX 77002; For Veltrano: Cranford McCabe LLP, 100 Southeast Second Street, Suite 3000, Miami, FL 33131; For Sycamore: Partridge Wynn & Slater LLP, 100 Constitution Plaza, Suite 700, Hartford, CT 06103]
Section 7.2 Notice Address for Tenant. All notices, requests, demands, consents, and other communications to Tenant under this Agreement shall be sent to:
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
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Attention: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\_
Email: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
[To be completed by Tenant]
Section 7.3 Notice Address for Landlord. All notices, requests, demands, consents, and other communications to Landlord under this Agreement shall be sent to:
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ LLC
c/o Fairwater Real Estate Investment Trust
7200 Chesapeake Parkway, Suite 1100
Columbia, MD 21044
Attention: David Elgin Park, General Counsel
Email: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
with a copy to:
Calderwood & Harkness LLP
450 Park Avenue, 28th Floor
New York, NY 10022
Attention: Douglas Fairchild
Email: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
ARTICLE 8 — NOTICES — GENERAL PROVISIONS
Section 8.1 Method of Notice. All notices, requests, demands, consents, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given, delivered, and received: (a) when delivered personally (including delivery by private courier or messenger service) to the address set forth for the applicable Party, upon receipt; (b) one (1) business day after deposit with a nationally recognized overnight courier service (such as Sundial Data Systems, Halcyon Partners LLC, or Tarrant & Co.), with all charges prepaid or billed to the sender, properly addressed to the applicable Party at the address set forth herein; (c) three (3) business days after deposit in the United States mail, sent by certified or registered mail, return receipt requested, first class postage prepaid, properly addressed to the applicable Party at the address set forth herein; or (d) when sent by email to the email address set forth for the applicable Party (or such other email address as such Party may designate in writing), provided that (i) confirmation of receipt is obtained by the sender (whether by reply email, read receipt, or other reasonable means), or (ii) delivery is followed within two (2) business days by delivery in the manner described in clause (a), (b), or (c) above. Notices delivered by email alone without either confirmation of receipt or follow-up physical delivery within two (2) business days shall not be deemed effective.
Section 8.2 Change of Address. Any Party may change its address for the receipt of notices, requests, demands, consents, and other communications under this Agreement by giving written notice of such change to the other Parties in accordance with the provisions of this Article 8. Any such change of address shall be effective only upon receipt of written notice thereof by the other Parties.
ARTICLE 9 — MISCELLANEOUS
Section 9.1 Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and assigns, including without limitation any Successor Landlord. Without limiting the generality of the foregoing, this Agreement shall be binding upon and inure to the benefit of any assignee or transferee of the Mortgage or any interest therein, any assignee or transferee of Landlord's interest in the Property or the Lease, any sublessee or assignee of Tenant's interest under the Lease (to the extent permitted by the Lease), and any Successor Landlord.
Section 9.2 Entire Agreement. This Agreement, together with the Exhibits attached hereto, constitutes the entire agreement among the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, discussions, representations, warranties, commitments, and communications, whether oral or written, relating to the subject matter hereof. No representation, promise, inducement, statement, or intention has been made by any Party that is not embodied in this Agreement, and no Party shall be bound by or liable for any alleged representation, promise, inducement, statement, or intention not so set forth.
Section 9.3 Amendment. This Agreement may not be amended, modified, supplemented, restated, or waived in any respect except by a written instrument duly executed and delivered by all Parties hereto. No waiver of any provision of this Agreement shall be deemed a waiver of any other provision, and no single or partial exercise of any right or remedy under this Agreement shall preclude any other or further exercise thereof or the exercise of any other right or remedy.
Section 9.4 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of \\\\\\\\\\\\\\\\\\\\
[Insert the state in which the Property is located: Georgia, Texas, Florida, Tennessee, or North Carolina, as applicable]
without regard to the conflicts of law rules or principles of such state that would result in the application of the laws of any other jurisdiction. Each Party irrevocably submits to the non-exclusive jurisdiction of the state and federal courts located in the state in which the Property is situated for the purpose of any suit, action, or other proceeding arising out of or relating to this Agreement.
Section 9.5 Severability. If any term, provision, covenant, condition, or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, the remainder of the terms, provisions, covenants, conditions, and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated, and the Parties shall use commercially reasonable efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such invalid, illegal, void, or unenforceable term or provision.
Section 9.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by electronic transmission (including by email in portable document format (.pdf), Brightwater Software, or other electronic signature technology) shall constitute effective execution and delivery of this Agreement. Electronic signatures and PDF copies of signatures shall be deemed original signatures for all purposes of this Agreement and shall be binding upon all Parties.
Section 9.7 Headings. The headings, captions, and article and section designations in this Agreement are inserted for convenience of reference only and shall not be used in the interpretation or construction of this Agreement or any provision hereof.
Section 9.8 Conflicts with Lease. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of the Lease, the provisions of this Agreement shall control and govern as between Lender (or any Successor Landlord) and Tenant; provided, however, that as between Landlord and Tenant (and during any period prior to a Foreclosure Event in which Landlord remains the landlord under the Lease), the Lease shall govern and control. Nothing in this Agreement shall be construed to increase Tenant's obligations or decrease Tenant's rights under the Lease, except as expressly set forth herein.
Section 9.9 No Third-Party Beneficiaries. Except for any Successor Landlord (each of whom shall be an express third-party beneficiary of this Agreement and shall be entitled to enforce the provisions hereof as if it were a party hereto), this Agreement is not intended to, and shall not, create or confer any rights, benefits, or remedies in favor of, or impose any obligations, duties, or liabilities upon, any person or entity other than the Parties hereto and their respective permitted successors and assigns.
Section 9.10 Waiver of Jury Trial. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE LEASE, THE MORTGAGE, THE LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR THE OTHER PARTIES TO ENTER INTO THIS AGREEMENT AND THAT EACH PARTY HAS BEEN AFFORDED THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL REGARDING THIS WAIVER. THIS WAIVER SHALL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
Section 9.11 Recording. This Agreement (or a memorandum hereof in form reasonably satisfactory to Lender) may be recorded by Lender, at Lender's election and at Lender's sole cost and expense, in the land records, official records, or register of deeds (as applicable) of the county in which the Property is located. Tenant and Landlord agree to cooperate with Lender in connection with such recording, including the execution and delivery of such memoranda or other instruments as Lender may reasonably request for such purpose.
IN WITNESS WHEREOF, the Parties hereto have duly executed this Subordination, Non-Disturbance and Attornment Agreement as of the date first written above.
LENDER:
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ [Pinnacle Federal Bank, N.A. / Veltrano Capital Lending Corp. / Sycamore Life Insurance Company]
By: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
Name: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
Title: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
TENANT:
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ a \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
By: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
Name: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
Title: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
LANDLORD (consenting and joining herein):
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ LLC, a Delaware limited liability company
By: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\,
its \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
[Greystone Meridian Capital LLC, its Manager / Fairwater Real Estate Investment Trust, its Sole Member — as applicable based on timing of closing]
By: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
Name: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
Title: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
NOTARY ACKNOWLEDGMENT BLOCKS
[Note: The following forms of notary acknowledgment are provided for illustrative purposes. The form of acknowledgment shall be adapted as necessary to conform to the requirements of the state in which the Property is located (Georgia, Texas, Florida, Tennessee, or North Carolina, as applicable) and the state in which the acknowledgment is taken.]
Acknowledgment — Lender
STATE OF \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
COUNTY OF \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Before me, the undersigned, a Notary Public in and for said State, on this \\\\\ day of \\\\\\\\\\\\\\\\\\\\, 2024, personally appeared \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity as \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ of \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\_, and that by his/her signature on the instrument, the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ Notary Public
My Commission Expires: \\\\\\\\\\\\\\\\\\\\
[NOTARIAL SEAL]
Acknowledgment — Tenant
STATE OF \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
COUNTY OF \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Before me, the undersigned, a Notary Public in and for said State, on this \\\\\ day of \\\\\\\\\\\\\\\\\\\\, 2024, personally appeared \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity as \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ of \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\_, and that by his/her signature on the instrument, the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ Notary Public
My Commission Expires: \\\\\\\\\\\\\\\\\\\\
[NOTARIAL SEAL]
Acknowledgment — Landlord
STATE OF \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
COUNTY OF \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
Before me, the undersigned, a Notary Public in and for said State, on this \\\\\ day of \\\\\\\\\\\\\\\\\\\\, 2024, personally appeared \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity as \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ of \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\, acting in its capacity as \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ of \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\_ LLC, a Delaware limited liability company, and that by his/her signature on the instrument, the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ Notary Public
My Commission Expires: \\\\\\\\\\\\\\\\\\\\
[NOTARIAL SEAL]
EXHIBIT A TO SNDA
LEGAL DESCRIPTION OF THE PROPERTY
EXHIBIT A
LEGAL DESCRIPTION
[Insert the legal description of the Property from PSA Exhibit A (Legal Descriptions — 14 Properties) corresponding to the applicable Target Entity. The legal description shall be the same legal description used in the Mortgage and shall include all parcels, easements, and appurtenant rights encumbered by the Mortgage.]
Property Address: \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
[To be completed with the applicable property address from the fourteen-property portfolio, as identified in PSA Exhibit A.]
Tax Parcel ID Number(s): \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\
County: \\\\\\\\\\\\\\\\\\\\\\\\ State: \\\\\\\\\\\\\\\\\\\\\\\\
Cross-Reference: See PSA Exhibit A — Legal Descriptions (14 Properties).