PURCHASE AND SALE AGREEMENT

PURCHASE AND SALE AGREEMENT
DRAFT — For Discussion Purposes Only — January 8, 2024
Prepared by:
Calderwood & Harkness LLP 450 Park Avenue, 28th Floor New York, New York 10022
Matter No. 1036-00004
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")
Regarding:
Acquisition of 100% of the Membership Interests in 14 Property-Owning Delaware Limited Liability Companies (the "Target Entities")
Aggregate Purchase Price: $1,100,000,000
January 8, 2024
TRANSMITTAL NOTE: This initial draft of the Purchase and Sale Agreement was circulated by Grace Nakamura of Calderwood & Harkness LLP to Nathaniel Pryce of Blackridge Hayes LLP on January 8, 2024. This draft is subject to review, comment, and negotiation by the parties and their respective counsel. Circulation of this draft does not constitute an offer, and no binding obligation shall arise unless and until this Agreement is fully executed and delivered by both Seller and Buyer. All Exhibits are in draft form and subject to review and comment by Seller's counsel.
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PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this "Agreement") is made and entered into as of the _ day of ___, 2024 (the "Effective Date"), 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"). Seller and Buyer are each referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Seller is the sole and exclusive owner of one hundred percent (100%) of the membership interests (the "Membership Interests") in each of the fourteen (14) single-purpose Delaware limited liability companies listed on Schedule A attached hereto (collectively, the "Target Entities");
WHEREAS, each Target Entity is the fee simple owner of a single real property and the related improvements, personal property, leases, and contracts, all as more particularly described herein and on the Exhibits attached hereto (collectively, the "Properties");
WHEREAS, the Properties are encumbered by approximately Six Hundred Twelve Million Dollars ($612,000,000) in aggregate outstanding principal balance of indebtedness under three separate lending facilities with Pinnacle Federal Bank, N.A., Veltrano Capital Lending Corp., and Sycamore Life Insurance Company, respectively, as more particularly described herein (the "Assumed Debt");
WHEREAS, Buyer desires to acquire all of the Membership Interests in the Target Entities, and in connection therewith to assume the Assumed Debt and to replace the existing guarantors under the Existing Loan Documents with Buyer's own replacement guaranty;
WHEREAS, Seller desires to sell, assign, transfer, and convey all of the Membership Interests in the Target Entities to Buyer upon the terms and conditions set forth herein; and
WHEREAS, the Parties desire to set forth the terms and conditions upon which such purchase and sale shall be consummated.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, the Earnest Money Deposit, the Independent Consideration, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below:
"ABR" means annual base rent payable under a Lease, calculated on an annualized basis as of the date of determination.
"Additional Deposit" means Twenty-Seven Million Five Hundred Thousand Dollars ($27,500,000), payable by Buyer to the Escrow Agent on the first (1st) business day following expiration of the Due Diligence Period, in accordance with Section 2.3(b) hereof.
"Adjusted Cash Equity" has the meaning set forth in Section 9.7 hereof.
"Assumed Debt" means the aggregate outstanding principal balance of approximately Six Hundred Twelve Million Dollars ($612,000,000) under the Existing Loan Documents as of the date hereof, consisting of: (a) the Pinnacle Loans, with an outstanding principal balance of approximately Four Hundred Twenty-One Million Six Hundred Thousand Dollars ($421,600,000) as of the date hereof; (b) the Veltrano Loans, with an outstanding principal balance of approximately One Hundred Forty-Two Million Three Hundred Thousand Dollars ($142,300,000) as of the date hereof; and (c) the Sycamore Loans, with an outstanding principal balance of approximately Forty-Eight Million One Hundred Thousand Dollars ($48,100,000) as of the date hereof. The foregoing amounts are stated as of the date hereof and shall be adjusted at Closing based on the actual outstanding principal balances as reflected in the applicable lender payoff or assumption statements delivered in connection with the Closing.
"Buyer" means Fairwater Real Estate Investment Trust, a Maryland real estate investment trust.
"Buyer's Knowledge Individuals" means Marcus Devereaux (Executive Vice President, Acquisitions), Leah Torrance (Senior Vice President, Asset Management), and David Elgin Park (General Counsel) of Buyer.
"CAM" means common area maintenance charges, assessments, and related costs payable by tenants under the Leases.
"Cash Equity at Closing" means the difference between the Purchase Price and the Assumed Debt, which as of the date hereof is approximately Four Hundred Eighty-Eight Million Dollars ($488,000,000), subject to the credits, prorations, and adjustments set forth in Article IX hereof.
"Closing" means the consummation of the transactions contemplated by this Agreement, as described in Article X hereof.
"Closing Date" means May 31, 2024 (the "Scheduled Closing Date"), or such other date as the Parties may agree in writing or to which the Closing Date may be extended in accordance with Section 7.5 or Article XI hereof.
"Closing Proration Statement" has the meaning set forth in Section 9.4 hereof.
"Closing Settlement Statement" means the settlement statement prepared by the Escrow Agent and approved by the Parties, setting forth all amounts to be paid, credited, and disbursed at Closing.
"Confidentiality Agreement" means that certain Confidentiality Agreement dated October 10, 2023, by and between Seller and Buyer, as the same may have been amended.
"De Minimis Threshold" means Two Hundred Seventy-Five Thousand Dollars ($275,000) per individual claim.
"Due Diligence Period" means the period commencing on the Effective Date and ending at 5:00 p.m. (Eastern Time) on April 15, 2024, being forty-six (46) days from the anticipated date of execution of this Agreement.
"Earnest Money Deposit" or "Initial Deposit" means Twenty-Seven Million Five Hundred Thousand Dollars ($27,500,000), representing two and one-half percent (2.5%) of the Purchase Price, to be deposited with the Escrow Agent within two (2) business days of the Effective Date in accordance with Section 2.3(a) hereof.
"Environmental Laws" means all applicable federal, state, and local laws, statutes, regulations, ordinances, rules, orders, and directives relating to the protection of human health and the environment, including without limitation the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. §§ 9601 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §§ 6901 et seq.), the Clean Water Act (33 U.S.C. §§ 1251 et seq.), the Clean Air Act (42 U.S.C. §§ 7401 et seq.), and all analogous state and local statutes and regulations.
"Environmental Reports" means the Phase I Environmental Site Assessments and any Phase II investigations described on Exhibit N hereto.
"Escrow Agent" means Commonwealth National Title Insurance Company, with offices at 191 Peachtree Street NE, Suite 800, Atlanta, Georgia 30303; Attention: Kenneth Stanhope, Senior Vice President.
"Estoppel Certificates" means tenant estoppel certificates substantially in the form attached hereto as Exhibit E, or in such other form as may be required under the applicable Lease.
"Existing Lenders" means, collectively, Pinnacle Federal Bank, N.A., Veltrano Capital Lending Corp., and Sycamore Life Insurance Company.
"Existing Loan Documents" means, collectively: (a) the Master Loan Agreement dated September 15, 2020, by and between the Pinnacle Borrower Entities and Pinnacle Federal Bank, N.A., as amended, together with all related loan supplements, promissory notes, deeds of trust, security agreements, environmental indemnity agreements, guaranty agreements, and other documents, instruments, and agreements executed in connection therewith (the "Pinnacle Loan Documents"), evidencing Loans 1-A through 1-H; (b) the Loan Agreement dated February 1, 2021, by and between the Veltrano Borrower Entities and Veltrano Capital Lending Corp., as amended, together with all related promissory notes, deeds of trust, security agreements, environmental indemnity agreements, guaranty agreements, and other documents, instruments, and agreements executed in connection therewith (the "Veltrano Loan Documents"), evidencing Loans 2-A through 2-D; and (c) the Note Purchase Agreement dated November 22, 2019, by and between the Sycamore Borrower Entities and Sycamore Life Insurance Company, as amended, together with all related promissory notes, deeds of trust, security agreements, environmental indemnity agreements, guaranty agreements, and other documents, instruments, and agreements executed in connection therewith (the "Sycamore Loan Documents"), evidencing Loans 3-A and 3-B.
"Final Proration Statement" has the meaning set forth in Section 9.5 hereof.
"Fundamental Rep Cap" means One Hundred Ten Million Dollars ($110,000,000), representing ten percent (10%) of the Purchase Price.
"Fundamental Representations" means those representations and warranties set forth in Sections 5.1(a) (Organization and Authority), 5.1(b) (Due Authorization), 5.1(g) (Title to Membership Interests), and 5.1(t) (ERISA/Tax Status).
"General Rep Cap" means Fifty-Five Million Dollars ($55,000,000), representing five percent (5%) of the Purchase Price.
"Guarantor" means the person or entity serving as guarantor under the Existing Loan Documents, which as of the date hereof is Greystone Meridian Partners Fund III, L.P. and/or Greystone Meridian Capital LLC, and which shall be replaced at Closing by Buyer pursuant to Section 7.3 hereof.
"Hazardous Materials" means any substance, material, waste, chemical, pollutant, or contaminant that is regulated or classified as hazardous, toxic, or as a pollutant or contaminant under any Environmental Law, including petroleum products, asbestos-containing materials, polychlorinated biphenyls, and per- and polyfluoroalkyl substances (PFAS).
"Indemnity Basket" means Five Million Five Hundred Thousand Dollars ($5,500,000), representing one-half of one percent (0.5%) of the Purchase Price. The Indemnity Basket shall operate as a tipping basket — once aggregate losses exceed the Indemnity Basket amount, Seller shall be liable for all losses from the first dollar.
"Indemnity Escrow Amount" means Sixteen Million Five Hundred Thousand Dollars ($16,500,000), representing one and one-half percent (1.5%) of the Purchase Price, to be deposited at Closing in accordance with Section 13.3(e) hereof.
"Leases" means all leases, subleases, licenses, occupancy agreements, and amendments thereto affecting the Properties, together with all guaranties thereof, as listed on the rent roll attached hereto as Exhibit H.
"Lender Consents" means the written consents of each of the Existing Lenders to the change of control of the Target Entities effected by the transactions contemplated by this Agreement, as more particularly described in Article VII hereof.
"Lender Consent Deadline" has the meaning set forth in Section 7.5 hereof.
"Major Tenants" means tenants under the Leases with ABR of One Million Five Hundred Thousand Dollars ($1,500,000) or more per annum.
"Mandatory Cure Items" means monetary liens, mechanic's liens, delinquent real property taxes, judgments against any Target Entity, and any matters encumbering any Property that arise by, through, or under Seller after the effective date of the applicable title commitment.
"Membership Interests" means one hundred percent (100%) of the membership interests in each of the fourteen (14) Target Entities.
"Operating Expenses" means all operating expenses, costs, and charges incurred in connection with the ownership, operation, maintenance, repair, and management of the Properties, including without limitation real property taxes and assessments, insurance premiums, utility charges, management fees, and CAM charges.
"PCAs" means property condition assessments, including capital expenditure projections, performed by Rampart Building Sciences, Inc. or such other consultants as Buyer may engage.
"Permitted Exceptions" means those exceptions to title listed on Exhibit P attached hereto, including the exceptions described in Section 4.5 hereof.
"Pinnacle Borrower Entities" means, collectively, GMP Fairfield I LLC, GMP Fairfield II LLC, GMP Westlake LLC, GMP Katy LLC, GMP Alliance LLC, GMP Lakeland LLC, GMP Southport LLC, and GMP Murfreesboro LLC, each in its capacity as a borrower under the Pinnacle Loan Documents.
"Pinnacle Loans" means Loans 1-A through 1-H under the Pinnacle Loan Documents, with an aggregate outstanding principal balance of approximately $421,600,000 as of the date hereof, bearing interest at a fixed rate of 4.22% per annum and maturing on July 1, 2028.
"Properties" means the fourteen (14) real properties described on Exhibit A attached hereto, together with all improvements, fixtures, and appurtenances thereto.
"Proration Date" means the Closing Date.
"Purchase Price" means One Billion One Hundred Million Dollars ($1,100,000,000).
"Replacement Guaranty" means the guaranty agreement(s) to be executed and delivered by Buyer at Closing in favor of each Existing Lender, in the form of Exhibit S attached hereto, replacing the existing guarantor(s) under the Existing Loan Documents.
"Veltrano Borrower Entities" means, collectively, GMP Buckhead LLC, GMP SouthPark LLC, GMP Cool Springs LLC, and GMP Brickell LLC, each in its capacity as a borrower under the Veltrano Loan Documents.
"Veltrano Loans" means Loans 2-A through 2-D under the Veltrano Loan Documents, with an aggregate outstanding principal balance of approximately $142,300,000 as of the date hereof, bearing interest at a fixed rate of 4.68% per annum and maturing on March 1, 2029.
"RSF" means rentable square feet.
"Seller" means Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership.
"Seller's Knowledge Individuals" means Victor Lansdell (Managing Partner), Elise Rathborne (Partner, Asset Management), and Sean Kilpatrick (Vice President, Portfolio Operations) of Seller and/or Greystone Meridian Capital LLC.
"Service Contracts" means all contracts, agreements, and arrangements for services, maintenance, management, or supplies related to the Properties, as listed on Exhibit I attached hereto.
"SNDAs" means Subordination, Non-Disturbance and Attornment Agreements in the form attached hereto as Exhibit F.
"Surveys" means the ALTA/NSPS Land Title Surveys to be obtained by Buyer for each Property in accordance with Section 4.2 hereof.
"Sycamore Borrower Entities" means, collectively, GMP Peachtree LLC and GMP Mount Juliet LLC, each in its capacity as a borrower under the Sycamore Loan Documents.
"Sycamore Loans" means Loans 3-A and 3-B under the Sycamore Loan Documents, with an aggregate outstanding principal balance of approximately $48,100,000 as of the date hereof, bearing interest at a fixed rate of 3.95% per annum and maturing on December 1, 2030.
"Target Entities" means the fourteen (14) single-purpose Delaware limited liability companies listed on Schedule A attached hereto, being: GMP Fairfield I LLC, GMP Fairfield II LLC, GMP Westlake LLC, GMP Katy LLC, GMP Alliance LLC, GMP Lakeland LLC, GMP Southport LLC, GMP Murfreesboro LLC, GMP Buckhead LLC, GMP SouthPark LLC, GMP Cool Springs LLC, GMP Brickell LLC, GMP Peachtree LLC, and GMP Mount Juliet LLC.
"Title Company" means Commonwealth National Title Insurance Company.
"Title Commitments" means the ALTA title commitments to be obtained by Buyer for each Property in accordance with Section 4.1 hereof.
"Title Objection Deadline" means March 29, 2024, being thirty (30) days from the anticipated date of execution of this Agreement.
"Title Policies" means the ALTA Owner's Policies (2021 form) to be issued by the Title Company at Closing in accordance with Section 4.4 hereof.
"Total Deposits" means Fifty-Five Million Dollars ($55,000,000), consisting of the Initial Deposit and the Additional Deposit.
"Transfer Taxes" means all real estate transfer taxes, documentary stamp taxes, conveyance taxes, recording taxes, and similar charges imposed by any governmental authority in connection with the transactions contemplated by this Agreement.
"Transition Period" means the ninety (90)-day period following the Closing Date during which Argyle Property Services LLC and Fairwater Property Management LLC shall perform their respective obligations under the Transition Services Agreement.
"Transition Services Agreement" means the transition services agreement to be entered into at Closing by and among Argyle Property Services LLC and Fairwater Property Management LLC, substantially in the form of Exhibit L attached hereto.
"True-Up Deadline" has the meaning set forth in Section 9.5 hereof.
"Working-Capital Adjustment" means any adjustment to the Cash Equity at Closing based on changes in working capital of the Target Entities between the date hereof and the Closing Date, calculated in accordance with the methodology set forth in Exhibit U attached hereto.
Additional capitalized terms used but not separately defined in this Section 1.1 shall have the meanings ascribed to such terms elsewhere in this Agreement or in the Exhibits and Schedules attached hereto.
Section 1.2 — Rules of Construction
(a) All references in this Agreement to "Articles," "Sections," "Exhibits," and "Schedules" are to the Articles and Sections of, and Exhibits and Schedules attached to, this Agreement, unless the context otherwise requires. All Exhibits and Schedules attached hereto are incorporated herein by this reference and made a part of this Agreement for all purposes.
(b) This Agreement 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. Notwithstanding the foregoing, local real property law of the applicable jurisdiction (Georgia, Texas, Florida, Tennessee, or North Carolina, as applicable) shall govern matters of title, recording, and the rights and obligations of landlords and tenants under the Leases to the extent required by applicable law.
(c) As used herein, the term "business day" means any day other than a Saturday, Sunday, or any day on which commercial banking institutions in New York, New York are authorized or required by law or governmental action to close. If any period of time or any deadline set forth in this Agreement expires or falls on a day that is not a business day, such period shall be extended to, or such deadline shall be deemed to fall on, the next succeeding business day.
(d) As used herein, "to the knowledge of," "to Seller's knowledge," or "to Buyer's knowledge" (or words of similar import) means the actual knowledge of the applicable Knowledge Individuals after reasonable inquiry of those persons reporting directly to such Knowledge Individuals who would reasonably be expected to have knowledge of the relevant matter. For the avoidance of doubt, "reasonable inquiry" does not require the engagement of outside consultants, the conduct of any independent investigation, or a review of any documents or files other than those maintained in the ordinary course of business. The Knowledge Individuals shall not have personal liability by reason of their designation as such.
(e) The headings and captions used in this Agreement are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
(f) The words "include," "includes," and "including" shall be deemed to be followed by the phrase "without limitation."
(g) References to any statute or regulation mean such statute or regulation as amended, modified, supplemented, or replaced from time to time (and, in the case of any statute, any rules and regulations promulgated thereunder).
(h) Unless the context otherwise requires, words importing the singular include the plural, and vice versa, and words importing any gender include all genders.
(i) Each representation, warranty, covenant, and agreement contained in this Agreement shall have independent significance, and the fact that the subject matter of any such provision may overlap with another provision shall not be construed to limit the scope of any such provision.
ARTICLE II — PURCHASE AND SALE; PURCHASE PRICE
Section 2.1 — Agreement to Purchase and Sell
Subject to the terms and conditions of this Agreement, Seller agrees to sell, assign, transfer, convey, and deliver to Buyer, and Buyer agrees to purchase and acquire from Seller, one hundred percent (100%) of the Membership Interests in each of the fourteen (14) Target Entities, free and clear of all liens, pledges, security interests, encumbrances, claims, and restrictions, except for liens under the Existing Loan Documents that will be assumed by Buyer at Closing and except for the Permitted Exceptions encumbering the Properties owned by the Target Entities.
The transactions contemplated by this Agreement are structured as an entity-level acquisition of the Target Entities. Each Target Entity is a single-purpose Delaware limited liability company that directly owns one Property. The Target Entities, together with their corresponding Properties, are as follows (with full property addresses and legal descriptions set forth on Exhibit A and additional information set forth on Schedule A):
(i) GMP Fairfield I LLC — Fairfield Distribution Center I, Fairburn, Georgia
(ii) GMP Fairfield II LLC — Fairfield Distribution Center II, Fairburn, Georgia
(iii) GMP Westlake LLC — Westlake Commerce Park, Houston, Texas
(iv) GMP Katy LLC — Katy Freeway Logistics Center, Katy, Texas
(v) GMP Alliance LLC — Alliance Industrial Park, Fort Worth, Texas
(vi) GMP Lakeland LLC — Lakeland Crossings Distribution Center, Lakeland, Florida
(vii) GMP Southport LLC — Southport Commerce Center, Jacksonville, Florida
(viii) GMP Murfreesboro LLC — Murfreesboro Distribution Center, Murfreesboro, Tennessee
(ix) GMP Buckhead LLC — Buckhead Place, Atlanta, Georgia
(x) GMP SouthPark LLC — SouthPark Office Centre, Charlotte, North Carolina
(xi) GMP Cool Springs LLC — Cool Springs Commerce Park, Brentwood, Tennessee
(xii) GMP Brickell LLC — Brickell Bay Office Tower, Miami, Florida
(xiii) GMP Peachtree LLC — Peachtree Corners Logistics Center, Peachtree Corners, Georgia
(xiv) GMP Mount Juliet LLC — Mount Juliet Commerce Park, Mount Juliet, Tennessee
Upon consummation of the Closing, Buyer shall be the sole and exclusive owner of one hundred percent (100%) of the Membership Interests in each Target Entity, and each Target Entity shall continue to own its respective Property, subject to the Leases, Service Contracts, Existing Loan Documents, and Permitted Exceptions.
Section 2.2 — Purchase Price
(a) Aggregate Purchase Price. The aggregate purchase price for one hundred percent (100%) of the Membership Interests in the fourteen (14) Target Entities shall be One Billion One Hundred Million Dollars ($1,100,000,000) (the "Purchase Price").
(b) Payment of Purchase Price. The Purchase Price shall be payable as follows:
(i) Assumption of Assumed Debt. At Closing, Buyer shall cause the Target Entities to continue to be obligated under the Existing Loan Documents, and Buyer shall assume the obligations of Seller (and/or Greystone Meridian Capital LLC) as guarantor under the Existing Loan Documents by delivering the Replacement Guaranty to each Existing Lender. The aggregate outstanding principal balance of the Assumed Debt as of the date hereof is approximately Six Hundred Twelve Million Dollars ($612,000,000), broken down as follows:
(A) Pinnacle Federal Bank, N.A.: Four Hundred Twenty-One Million Six Hundred Thousand Dollars ($421,600,000) in aggregate outstanding principal balance (Loans 1-A through 1-H), bearing interest at a fixed rate of 4.22% per annum, with a maturity date of July 1, 2028;
(B) Veltrano Capital Lending Corp.: One Hundred Forty-Two Million Three Hundred Thousand Dollars ($142,300,000) in aggregate outstanding principal balance (Loans 2-A through 2-D), bearing interest at a fixed rate of 4.68% per annum, with a maturity date of March 1, 2029; and
(C) Sycamore Life Insurance Company: Forty-Eight Million One Hundred Thousand Dollars ($48,100,000) in aggregate outstanding principal balance (Loans 3-A and 3-B), bearing interest at a fixed rate of 3.95% per annum, with a maturity date of December 1, 2030.
The foregoing outstanding principal balances are stated as of the date hereof and shall be adjusted at Closing based on the actual outstanding principal balances as reflected in the applicable lender assumption statements or payoff statements delivered in connection with the Closing. Any difference between the estimated and actual outstanding principal balance shall be reflected as an adjustment to the Cash Equity at Closing.
(ii) Cash Equity at Closing. At Closing, Buyer shall pay to Seller (or as directed by Seller on the Closing Settlement Statement) the difference between the Purchase Price and the Assumed Debt, which as of the date hereof is approximately Four Hundred Eighty-Eight Million Dollars ($488,000,000) (the "Cash Equity at Closing"), subject to the credits, prorations, adjustments, and other modifications set forth in Article IX hereof. The Cash Equity at Closing shall be paid by wire transfer of immediately available funds to the account or accounts designated by Seller in writing not later than two (2) business days prior to the Closing Date.
(c) Purchase Price Allocation. The Parties shall allocate the Purchase Price among the fourteen (14) Properties in accordance with the allocation schedule set forth in Exhibit K attached hereto, which allocation is based on appraised values and is intended to be consistent with Section 1060 of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations promulgated thereunder. Each Party shall report the transactions contemplated by this Agreement for federal, state, and local income tax purposes in a manner consistent with such allocation, and neither Party shall take any position in any tax return, tax proceeding, or otherwise that is inconsistent with such allocation, unless required to do so by a determination (as defined in Section 1313(a) of the Code) or by applicable law.
Section 2.3 — Earnest Money Deposit
(a) Initial Deposit. Within two (2) business days following the mutual execution and delivery of this Agreement, Buyer shall deposit with the Escrow Agent, by wire transfer of immediately available funds, the sum of Twenty-Seven Million Five Hundred Thousand Dollars ($27,500,000) (the "Initial Deposit" or "Earnest Money Deposit"), representing two and one-half percent (2.5%) of the Purchase Price. The Initial Deposit shall be refundable to Buyer during the Due Diligence Period in accordance with Section 3.4 hereof.
(b) Additional Deposit. On the first (1st) business day following the expiration of the Due Diligence Period (which date is anticipated to be April 16, 2024), Buyer shall deposit with the Escrow Agent, by wire transfer of immediately available funds, the additional sum of Twenty-Seven Million Five Hundred Thousand Dollars ($27,500,000) (the "Additional Deposit"). Upon deposit with the Escrow Agent, the Additional Deposit shall become non-refundable except as expressly provided in this Agreement (the "Hard Deposit"). The failure of Buyer to deposit the Additional Deposit on or before the date required by this Section 2.3(b), unless Buyer has validly terminated this Agreement prior to the expiration of the Due Diligence Period, shall constitute a default by Buyer hereunder.
(c) Total Deposits. The Initial Deposit and the Additional Deposit are collectively referred to herein as the "Total Deposits." The Total Deposits shall equal Fifty-Five Million Dollars ($55,000,000) in the aggregate.
(d) Escrow Terms. The Total Deposits shall be held by the Escrow Agent in an interest-bearing account at a federally insured financial institution designated by the Escrow Agent, pursuant to the terms of the Escrow Agreement attached hereto as Exhibit G. All interest earned on the Total Deposits shall be deemed part of the Total Deposits and shall be distributed in the same manner as the underlying deposits. The Escrow Agent shall invest the Total Deposits only as directed by the mutual written instructions of the Parties or as provided in the Escrow Agreement.
(e) Application at Closing. At Closing, the Total Deposits (including all interest accrued thereon) shall be released by the Escrow Agent and applied as a credit against the Purchase Price.
(f) Disposition Upon Termination. Upon any termination of this Agreement, the Total Deposits shall be disposed of in accordance with the applicable provisions of Article XII hereof and the Escrow Agreement.
Section 2.4 — Independent Consideration
Concurrently with the execution and delivery of this Agreement, Buyer has paid to Seller the sum of One Hundred Dollars ($100.00) as independent consideration for Seller's agreement to sell the Membership Interests to Buyer and for Seller's execution and delivery of this Agreement (the "Independent Consideration"). The Independent Consideration is non-refundable under all circumstances and shall not be applied as a credit against the Purchase Price. The Independent Consideration has been bargained for and agreed to as consideration for Seller's grant to Buyer of the rights set forth in this Agreement, including the Due Diligence Period and the exclusive right to purchase the Membership Interests, and is independent of any other consideration provided for herein.
ARTICLE III — DUE DILIGENCE
Section 3.1 — Due Diligence Period
The "Due Diligence Period" shall commence on the Effective Date and shall expire at 5:00 p.m. (Eastern Time) on April 15, 2024. During the Due Diligence Period, Buyer shall have the right to investigate, examine, and inspect the Properties, the Target Entities, the Leases, the Service Contracts, the Existing Loan Documents, environmental conditions at the Properties, title and survey matters, zoning and land use compliance, financial information and operating data, and all other matters that Buyer, in its sole discretion, deems relevant to its evaluation of the acquisition of the Membership Interests. Without limiting the generality of the foregoing, Buyer's due diligence investigations may include a review of the organizational structure and governance of each Target Entity, the financial statements and tax returns of each Target Entity, insurance coverage and claims history, pending and threatened litigation, and any other matters that Buyer reasonably deems material.
Seller shall maintain an electronic data room (accessible via secure internet portal) and shall provide Buyer and its representatives with prompt and continuous access to all materials and information relating to the Properties, the Target Entities, the Leases, the Service Contracts, the Existing Loan Documents, and all other matters relevant to Buyer's due diligence investigations. Seller shall use commercially reasonable efforts to respond to Buyer's supplemental information requests within three (3) business days of receipt.
Section 3.2 — Access to Properties
(a) During the Due Diligence Period and continuing through the Closing Date, Seller shall provide Buyer and its agents, consultants, contractors, and representatives (including, without limitation, Trident Environmental Group LLC and Rampart Building Sciences, Inc.) with reasonable access to each Property during normal business hours, upon not less than forty-eight (48) hours' prior written or electronic notice to Seller (or such shorter notice as Seller may agree). Such access shall include the right to:
(i) conduct physical inspections of the improvements, building systems, structural elements, roofing, parking areas, landscaping, and all other components of each Property;
(ii) perform Phase I Environmental Site Assessments in accordance with ASTM E1527-21, and, subject to Seller's prior written approval (not to be unreasonably withheld, conditioned, or delayed), Phase II Environmental Site Assessments involving subsurface investigations, soil and groundwater sampling, or other invasive testing;
(iii) perform property condition assessments (PCAs) and capital expenditure analyses;
(iv) obtain ALTA/NSPS Land Title Surveys in accordance with Section 4.2 hereof;
(v) interview tenants, subject to Seller's right to have a representative present during any such interviews; and
(vi) conduct such other investigations and inspections as Buyer may reasonably deem necessary or appropriate.
(b) Buyer shall conduct all inspections in a manner that does not unreasonably interfere with the operations of the Properties or the rights of tenants under the Leases. Buyer shall repair any damage to the Properties caused by Buyer's inspections and shall restore each Property to substantially the condition existing prior to such inspections.
(c) Buyer hereby agrees to indemnify, defend, and hold harmless Seller, each Target Entity, and their respective officers, directors, managers, members, partners, employees, agents, and representatives from and against any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or resulting from the entry upon or inspection of the Properties by Buyer or its agents, consultants, or representatives, except to the extent caused by the negligence or willful misconduct of Seller or its agents, or the discovery of pre-existing conditions at the Properties. The indemnification obligations of Buyer under this Section 3.2(c) shall survive the Closing or any earlier termination of this Agreement for a period of twelve (12) months.
(d) Prior to any entry upon the Properties, Buyer shall cause its consultants and contractors to maintain comprehensive general liability insurance in an amount not less than Two Million Dollars ($2,000,000) per occurrence and Five Million Dollars ($5,000,000) in the aggregate, naming Seller and each applicable Target Entity as additional insureds, and shall deliver certificates of insurance evidencing such coverage to Seller upon request.
Section 3.3 — Seller's Delivery Obligations
Within five (5) business days following the Effective Date, Seller shall deliver to Buyer, or make available in the electronic data room, true, correct, and complete copies of the following materials and information:
(a) all Leases and amendments thereto (currently totaling eighty-seven (87) leases across the fourteen (14) Properties), together with all guaranties, side letters, and other ancillary agreements;
(b) a current rent roll for each Property as of the most recent calendar month-end prior to the Effective Date, setting forth tenant name, suite/unit number, lease commencement and expiration dates, RSF, annual base rent, monthly base rent, CAM/OpEx charges, percentage rent provisions (if any), security deposit amounts, and any concessions or abatements;
(c) all Service Contracts, including property management agreements, maintenance agreements, landscaping agreements, elevator service agreements, janitorial agreements, security agreements, and all other contracts for services affecting the Properties;
(d) existing title commitments and title policies for each Property;
(e) existing ALTA/NSPS surveys for each Property;
(f) existing Phase I and Phase II Environmental Site Assessment reports for each Property;
(g) existing property condition assessment reports and capital expenditure analyses for each Property;
(h) all Existing Loan Documents, including all loan agreements, promissory notes, deeds of trust, security agreements, environmental indemnity agreements, guaranty agreements, loan supplements, and amendments for each of the three lending facilities (Pinnacle, Veltrano, and Sycamore);
(i) audited and/or internally prepared financial statements for each Target Entity for the three (3) most recent fiscal years, including income and expense statements, balance sheets, and cash flow statements;
(j) real property tax bills and assessment notices for each Property for the three (3) most recent fiscal years and current year estimates, together with any pending tax appeal filings;
(k) certificates of insurance and copies of insurance policies currently in effect for each Property;
(l) organizational documents of each Target Entity, including certificates of formation, operating agreements, and all amendments thereto, together with all authority and governance documents;
(m) organizational documents of Seller, including the limited partnership agreement and all amendments thereto;
(n) zoning letters, certificates of occupancy, building permits, and other governmental approvals and entitlements for each Property;
(o) a description of any pending or threatened litigation, arbitration, or governmental proceedings affecting any Target Entity or Property;
(p) all tenant correspondence regarding defaults, disputes, or material matters, including default notices, cure notices, and settlement communications; and
(q) such other documents, materials, and information as Buyer may reasonably request from time to time during the Due Diligence Period.
Section 3.4 — Termination During Due Diligence Period
(a) If Buyer, in its sole and absolute discretion, is not satisfied with the results of its due diligence investigations for any reason or no reason, Buyer may terminate this Agreement by delivering written notice of termination to Seller and the Escrow Agent at any time prior to the expiration of the Due Diligence Period (i.e., on or before 5:00 p.m. (Eastern Time) on April 15, 2024).
(b) Upon a valid termination by Buyer under this Section 3.4, the Escrow Agent shall promptly return the Initial Deposit (together with all interest accrued thereon) to Buyer, and thereafter neither Party shall have any further rights or obligations under this Agreement, except for those provisions that expressly survive termination (including, without limitation, the confidentiality obligations under Section 15.14, the indemnification obligations under Section 3.2(c), and the dispute resolution provisions under Section 15.2).
(c) If Buyer fails to deliver a written notice of termination to Seller and the Escrow Agent prior to the expiration of the Due Diligence Period, Buyer's right to terminate this Agreement under this Section 3.4 shall automatically and irrevocably expire, and Buyer shall be obligated to deposit the Additional Deposit with the Escrow Agent on the first (1st) business day following the expiration of the Due Diligence Period in accordance with Section 2.3(b). Upon deposit, the Additional Deposit shall become non-refundable except as expressly provided in this Agreement.
ARTICLE IV — TITLE AND SURVEY
Section 4.1 — Title Commitments
Buyer shall obtain, at Buyer's sole cost and expense, ALTA title commitments from Commonwealth National Title Insurance Company (the "Title Company") for each of the fourteen (14) Properties (collectively, the "Title Commitments"). Each Title Commitment shall include all Schedule B-I requirements and Schedule B-II exceptions, and shall be accompanied by legible copies of all recorded documents referenced therein. Seller shall cooperate with Buyer and the Title Company in connection with the issuance of the Title Commitments, including providing such affidavits, certificates, and other documents as the Title Company may reasonably require.
Section 4.2 — Surveys
Buyer shall obtain, at Buyer's sole cost and expense, ALTA/NSPS Land Title Surveys (2021 Minimum Standard Detail Requirements, including Table A Items) for each Property from Meridian Land Surveying, Inc. or such other licensed surveyor as Buyer may select (the "Surveys"). Each Survey shall include the following Table A optional items:
Items 1, 2, 3, 4, 6(a), 6(b), 7(a), 7(b)(1), 7(c), 8, 9, 10, 11(a), 11(b), 13, 14, 16, 17, 18, and 19.
Each Survey shall be certified to Buyer, the Title Company, and each Existing Lender (to the extent required under the Existing Loan Documents). The estimated aggregate cost of the Surveys is One Hundred Ninety-Six Thousand Dollars ($196,000).
Section 4.3 — Title Objections
(a) Buyer's Title Objection Deadline. On or before March 29, 2024, which date is thirty (30) days from the anticipated date of execution of this Agreement (the "Title Objection Deadline"), Buyer shall deliver to Seller written notice identifying any title or survey matters disclosed by the Title Commitments and/or the Surveys that are unacceptable to Buyer (collectively, the "Title Objections"). Any title or survey matters not identified as Title Objections on or before the Title Objection Deadline (other than Mandatory Cure Items) shall be deemed accepted by Buyer and shall constitute Permitted Exceptions. Notwithstanding the foregoing, Buyer shall have the right to deliver supplemental Title Objections with respect to any new title or survey matters first appearing after the Title Objection Deadline, provided that such supplemental Title Objections are delivered within ten (10) business days after Buyer's receipt of an updated Title Commitment or Survey disclosing such new matters.
(b) Title Objection Notice. Buyer's Title Objection notice shall describe each Title Objection in reasonable detail and shall be accompanied by copies of the applicable Title Commitments, Surveys, and exception documents.
(c) Seller Cure Period. Within fifteen (15) business days following Seller's receipt of Buyer's Title Objection notice (the "Seller Cure Period"), Seller shall deliver to Buyer a written response indicating, with respect to each Title Objection, whether Seller elects to cure such Title Objection. Seller may, but shall not be obligated to, cure any Title Objection, except that Seller shall be obligated to cure all Mandatory Cure Items at or prior to Closing.
(d) Mandatory Cure Items. For purposes of this Agreement, "Mandatory Cure Items" include: (i) all monetary liens and encumbrances (including deeds of trust, mortgages, and judgment liens, but excluding liens under the Existing Loan Documents that are being assumed by Buyer); (ii) all mechanic's liens and materialmen's liens; (iii) all delinquent real property taxes and assessments; (iv) all judgments against any Target Entity; and (v) any liens, encumbrances, or title exceptions arising by, through, or under Seller after the effective date of the applicable Title Commitment. Seller shall cure all Mandatory Cure Items at or prior to Closing, regardless of cost.
(e) Buyer's Election. If Seller elects not to cure or fails to cure any non-Mandatory Title Objection within the Seller Cure Period, Buyer shall have the right, exercisable by written notice to Seller within five (5) business days following the expiration of the Seller Cure Period, to either: (i) terminate this Agreement, in which event the Escrow Agent shall return all Deposits (together with all interest accrued thereon) to Buyer, and thereafter neither Party shall have any further rights or obligations under this Agreement except for those provisions that expressly survive termination; or (ii) waive the applicable Title Objection and accept title subject to such matters, which shall thereupon be deemed Permitted Exceptions for all purposes of this Agreement. If Buyer fails to deliver written notice of its election within the time period specified in this Section 4.3(e), Buyer shall be deemed to have elected clause (ii) above.
Section 4.4 — Title Policies
(a) At Closing, the Title Company shall issue ALTA Owner's Policies of Title Insurance (2021 form) for each Property (the "Title Policies"), insuring Buyer's interest in the Membership Interests and the Properties for the allocated portion of the Purchase Price, subject only to the Permitted Exceptions. The aggregate insured amount of the Title Policies shall be One Billion One Hundred Million Dollars ($1,100,000,000), allocated among the fourteen (14) Properties in accordance with the allocation schedule to be mutually agreed by the Parties prior to Closing.
(b) Buyer may request such endorsements to the Title Policies as Buyer deems appropriate, including, without limitation, owner's comprehensive, access, survey, zoning (with parking), contiguity, non-imputation, fairway, and such other endorsements as may be available in the applicable jurisdiction. The availability and form of endorsements shall be subject to the Title Company's underwriting requirements and applicable state law.
(c) The cost of the owner's Title Policies and all endorsements thereto shall be borne by Buyer. The estimated aggregate cost of the Title Policies and endorsements is Two Million Four Hundred Twenty Thousand Dollars ($2,420,000).
Section 4.5 — Permitted Exceptions
The "Permitted Exceptions" for each Property shall consist of those exceptions listed on Exhibit P attached hereto, and shall include:
(a) the Existing Loan Documents (as assumed by Buyer at Closing);
(b) the Leases, as disclosed on the rent roll delivered pursuant to Section 3.3(b) hereof;
(c) standard printed exceptions that are removed by appropriate endorsement or affidavit;
(d) real property taxes and assessments for the current year that are not yet due and payable, subject to proration under Section 9.2(a);
(e) matters shown on the Surveys that are accepted or waived by Buyer in accordance with Section 4.3 hereof;
(f) zoning and land use ordinances, building codes, and similar governmental regulations;
(g) utility easements of record that do not materially interfere with the current use of the Property; and
(h) such other exceptions as may be specifically identified in Exhibit P or approved in writing by Buyer.
ARTICLE V — REPRESENTATIONS AND WARRANTIES
Section 5.1 — Seller's Representations and Warranties
Seller represents and warrants to Buyer as of the Effective Date and as of the Closing Date (except where a different date is expressly specified), subject to the disclosure schedules attached hereto, as follows:
(a) Organization and Authority. Greystone Meridian Partners Fund III, L.P. is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware. Its sole general partner is Greystone Meridian Capital LLC, a Delaware limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. Seller has the full limited partnership power and authority to own, lease, and operate its properties, to carry on its business as presently conducted, and to execute, deliver, and perform this Agreement and all documents and instruments to be executed and delivered by Seller in connection herewith. Seller's principal office is located at 3300 Peachtree Road NE, Suite 2200, Atlanta, Georgia 30326. Seller's registered agent in the State of Delaware is located at 1209 Orange Street, Wilmington, Delaware 19801.
(b) Due Authorization. The execution, delivery, and performance of this Agreement and all related documents and instruments by Seller have been duly authorized by all necessary partnership action on the part of Seller and all necessary limited liability company action on the part of Greystone Meridian Capital LLC, as general partner of Seller. No further authorization, approval, consent, or vote of any limited partner or other person or entity is required in connection with the execution, delivery, and performance by Seller of this Agreement or the consummation of the transactions contemplated hereby. This Agreement has been duly executed and delivered by Seller and constitutes the legal, valid, and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.
(c) No Conflicts; Consents. Except for the Lender Consents required under the Existing Loan Documents, the execution, delivery, and performance of this Agreement by Seller, and the consummation of the transactions contemplated hereby, do not and will not: (i) conflict with, violate, or result in a breach of any provision of the limited partnership agreement or other organizational documents of Seller or the certificate of formation or operating agreement of any Target Entity; (ii) conflict with, violate, or result in a breach of, or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, or result in the acceleration of, any obligation under, any material contract, agreement, indenture, or instrument to which Seller or any Target Entity is a party or by which Seller, any Target Entity, or any of their respective properties may be bound; or (iii) violate any law, rule, regulation, order, judgment, decree, or injunction applicable to Seller or any Target Entity.
(d) Target Entities — Organization and Good Standing. Each of the fourteen (14) Target Entities is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, and is duly qualified to transact business and is in good standing in the state in which its Property is located (Georgia, Texas, Florida, Tennessee, or North Carolina, as applicable). The Employer Identification Numbers (EINs) for each Target Entity are as follows:
(e) Single-Purpose Entity Status. Each Target Entity is a single-purpose entity that: (i) owns no assets other than the applicable Property and related personal property, Leases, and contracts; (ii) has no liabilities other than those arising under the Leases, Service Contracts, and Existing Loan Documents, and ordinary-course operating liabilities; (iii) does not own any direct or indirect equity interest in any other person or entity; (iv) has no employees; and (v) has at all times operated in compliance with the single-purpose entity requirements set forth in its operating agreement and in the Existing Loan Documents.
(f) No Bankruptcy. Neither Seller nor any Target Entity is the subject of any voluntary or involuntary petition in bankruptcy, insolvency, reorganization, receivership, or similar proceeding under any federal, state, or local law. Neither Seller nor any Target Entity has made an assignment for the benefit of creditors, nor has any receiver, trustee, or similar officer been appointed with respect to the assets of Seller or any Target Entity. Neither Seller nor any Target Entity is insolvent or unable to pay its debts as they become due.
(g) Title to Membership Interests. Seller is the sole and exclusive record and beneficial owner of one hundred percent (100%) of the membership interests in each Target Entity, free and clear of all liens, pledges, security interests, options, rights of first refusal, encumbrances, claims, restrictions, and adverse interests of any kind, except for liens under the Existing Loan Documents that will be released at or prior to Closing or assumed by Buyer in accordance with this Agreement. No person or entity other than Seller has any right, option, or interest in or to the Membership Interests or any portion thereof. There are no outstanding options, warrants, conversion rights, or other rights to acquire any equity interest in any Target Entity.
(h) Leases. Exhibit H attached hereto contains a true, correct, and complete rent roll as of December 31, 2023, listing all eighty-seven (87) Leases in effect at the Properties. Seller has delivered or made available in the electronic data room true, correct, and complete copies of all Leases, including all amendments, modifications, supplements, side letters, and guaranties. Except as set forth on the disclosure schedules: (i) all Leases are in full force and effect and have not been modified, amended, or supplemented except as disclosed in the copies delivered to Buyer; (ii) no tenant is in material default under any Lease beyond any applicable notice and cure period; (iii) no landlord is in material default under any Lease beyond any applicable notice and cure period; (iv) all tenant improvement obligations and landlord work required to be performed by the applicable Target Entity under the Leases have been completed and accepted by the applicable tenant; and (v) no tenant has asserted any claim for offset, deduction, or abatement of rent except as disclosed in the copies delivered to Buyer.
(i) Lease Financial Data. The following lease financial data is true, correct, and complete in all material respects as of December 31, 2023:
(i) Total annual in-place base rent (ABR): $74,800,000;
(ii) Weighted-average occupancy: 93.2% (logistics properties: 96.1%; office properties: 82.7%);
(iii) Weighted-average remaining lease term: 5.8 years;
(iv) Total rentable square feet (RSF): 5,224,000; and
(v) Top five (5) tenants by ABR:
(j) Security Deposits. As of the date hereof, the aggregate amount of tenant security deposits held by or on behalf of the Target Entities is Four Million Two Hundred Eighty-Three Thousand Dollars ($4,283,000). All tenant security deposits are held in operating accounts at Magnolia Commerce Bank, N.A., 225 Peachtree Street NE, Suite 100, Atlanta, Georgia 30303, in accordance with the requirements of the Leases and applicable law.
(k) Service Contracts. Exhibit I attached hereto contains a true, correct, and complete list of all Service Contracts affecting the Properties as of the date hereof. Except as set forth on the disclosure schedules, all Service Contracts are in full force and effect and no party thereto is in material default. To Seller's knowledge, all amounts payable under the Service Contracts are current and there are no material disputes with any service provider.
(l) Environmental Matters. Except as set forth on the disclosure schedules and in the Environmental Reports listed on Exhibit N attached hereto: (i) no Target Entity has received written notice from any governmental authority or any other person of any violation of applicable Environmental Laws with respect to any Property; (ii) to Seller's knowledge, no Hazardous Materials have been generated, manufactured, released, discharged, stored, treated, or disposed of at, on, under, or from any Property in violation of applicable Environmental Laws; (iii) to Seller's knowledge, there are no underground storage tanks located at any Property; and (iv) there are no pending or, to Seller's knowledge, threatened environmental claims, actions, suits, investigations, or proceedings with respect to any Property.
(m) Litigation. Except as set forth on Exhibit J attached hereto, there is no pending or, to Seller's knowledge, threatened litigation, arbitration, administrative proceeding, or governmental investigation affecting any Target Entity, any Property, or the Membership Interests. To Seller's knowledge, no Target Entity has received any written notice from any governmental authority of any violation, citation, or order affecting any Property that remains uncured.
(n) Compliance with Laws. To Seller's knowledge, each Property is in material compliance with all applicable laws, ordinances, rules, regulations, codes, and governmental requirements, including without limitation zoning and land use laws, building codes, fire codes, and the Americans with Disabilities Act (42 U.S.C. §§ 12101 et seq.), except as disclosed on the disclosure schedules.
(o) Real Property Taxes. To Seller's knowledge, there are no pending or threatened special assessments or reassessments with respect to any Property. The estimated annual real property taxes for all fourteen (14) Properties in the aggregate are approximately Fourteen Million Seven Hundred Sixty Thousand Dollars ($14,760,000). All real property taxes and assessments that are due and payable have been paid in full.
(p) Insurance. Each Property is insured under policies maintained by or on behalf of Seller and/or the applicable Target Entity with coverage types and limits customary for properties of similar type, quality, and location, including commercial general liability, property (including windstorm), business interruption, and umbrella/excess liability coverages. No insurance carrier has given written notice of cancellation or non-renewal with respect to any such policy.
(q) No Options. No tenant or other person or entity has any right of first refusal, right of first offer, purchase option, or similar right to acquire any Property or any interest therein, except as expressly set forth in the Leases and disclosed to Buyer in the electronic data room.
(r) Existing Loan Documents. Exhibit Q attached hereto contains a true, correct, and complete list of the Existing Loan Documents for each of the three lending facilities. All Existing Loan Documents are in full force and effect. Neither any Target Entity (in its capacity as borrower) nor Seller (in its capacity as guarantor) is in default under any Existing Loan Document beyond any applicable notice and cure period. To Seller's knowledge, no event has occurred that, with notice or lapse of time or both, would constitute a default under any Existing Loan Document. All required reserve deposits under the Existing Loan Documents are current.
(s) Property Manager. Argyle Property Services LLC, a Georgia limited liability company and an affiliate of Seller, currently serves as property manager for all fourteen (14) Properties under property management agreements that are terminable upon thirty (30) days' prior written notice without penalty or termination fee. There are no other property management agreements or asset management agreements in effect with respect to the Properties.
(t) ERISA/Tax. Seller is not an "employee benefit plan" as defined in Section 3(3) of ERISA, and no Target Entity is a "plan asset entity" within the meaning of 29 C.F.R. § 2510.3-101. Each Target Entity is treated as a disregarded entity for federal income tax purposes and does not file a separate federal income tax return. Seller's Employer Identification Number is 83-1647205. Greystone Meridian Capital LLC's Employer Identification Number is 83-1520984.
(u) FIRPTA. Seller is not a "foreign person" within the meaning of Section 1445 of the Internal Revenue Code, and Seller is a domestic limited partnership organized under the laws of the State of Delaware. At Closing, Seller shall deliver to Buyer a certificate of non-foreign status in the form of Exhibit O attached hereto.
(v) Broker. Seller has not engaged, and is not obligated to pay any fee or commission to, any broker, finder, investment banker, or other intermediary in connection with the transactions contemplated by this Agreement that would result in any obligation or liability of Buyer for any brokerage fee, commission, or finder's fee.
(w) Patriot Act/OFAC. Neither Seller nor any of its general partners, managing members, or senior officers is a person or enti