Contract analysis

From: Sylvia Hartwell <shartwell@calderwoodharkness.com> To: Douglas Fairchild <dfairchild@calderwoodharkness.com> Cc: Grace Nakamura <gnakamura@calderwoodharkness.com> Subject: Fairwater REIT — REIT Qualification Impact Analysis (GMP Fund III Portfolio Acquisition) [Matter No. 1036-00004]

I have completed my analysis of the REIT income and asset test implications of Fairwater Real Estate Investment Trust's proposed acquisition of the 14-property Sun Belt logistics and office portfolio from Greystone Meridian Partners Fund III, L.P. (the "Seller") for a total purchase price of $1,100,000,000. The purpose of this email is to summarize my conclusions and confirm that the acquisition, as currently structu

For context, the proposed transaction is an entity-level acquisition in which Fairwater will acquire 100% of the membership interests in 14 single-purpose Delaware limited liability companies (each, a "Target Entity"). Each Target Entity holds a single real property asset — 10 logistics properties and 4 office properties located across Georgia (4 properties), Texas (3), Florida (3), Tennessee (3), and North Carolina

Fairwater will assume $612,000,000 in existing mortgage debt across three lenders: Pinnacle Federal Bank, N.A. ($421,600,000), Veltrano Capital Lending Corp. ($142,300,000), and Sycamore Life Insurance Company ($48,100,000). The remaining cash equity of $488,000,000 will be funded from Fairwater's $750,000,000 unsecured revolving credit facility with Aldgate National Bank, N.A. (SOFR + 130 bps). Fairwater's current m

**2. 75% Gross Income Test (Section 856(c)(2))**

The portfolio generates qualifying income in the form of rents from real property under Section 856(d), including base rent under 87 in-place leases, CAM/operating expense recoveries, and percentage rent. I have confirmed the following:

- *No impermissible rent calculations.* All 87 leases utilize fixed base rent with periodic escalations (CPI-based or fixed percentage increases). No lease contains a rent structure based on the net income or profits of any person, which would disqualify the rent under Section 856(d)(2)(A).

- *No impermissible tenant services.* Property management will transition from Argyle Property Services LLC (a Seller affiliate) to Fairwater Property Management LLC. This must be structured carefully — either as a taxable REIT subsidiary or through a qualified independent contractor arrangement — to avoid rendering rents non-qualifying. I address this further in Section 9 below.

- *No related-party tenant issues.* I have reviewed the top five tenants by annual base rent ("ABR") — Cascade Supply Chain Solutions Inc. ($8,736,000 / 11.7% of ABR), Zynvaro Distribution Holdings LLC ($7,532,000 / 10.1%), Thornton-Whitaker Pharmaceuticals Corp. ($6,180,000 / 8.3%), Birchwood Technology Group Inc. ($5,668,000 / 7.6%), and Atlas Freight Logistics Corp. ($5,330,000 / 7.1%) — and confirmed that no tena

*Conclusion:* The addition of $74,800,000 in qualifying rental income strengthens Fairwater's 75% gross income test compliance. Current margins are healthy, and this acquisition improves them.

**3. 75% Asset Test (Section 856(c)(4))**

Post-acquisition, Fairwater will hold interests in 14 additional single-purpose LLCs, each owning a qualifying "real estate asset" (i.e., real property). Each Target Entity, as a single-member LLC owned 100% by Fairwater, will be classified as a disregarded entity for federal income tax purposes under the default classification rules of the Treasury Regulations. No affirmative entity classification election is needed

The real property assets being added have an aggregate value of approximately $1,100,000,000 (based on purchase price). Fairwater's existing portfolio of 62 properties is valued at approximately $4.8 billion (using market capitalization as a proxy). I have confirmed that no Target Entity holds securities or other non-real-estate assets that could create issues under the 10% vote/value limitation or the 5% asset test.

*Conclusion:* The acquisition increases Fairwater's real estate asset concentration and comfortably satisfies the 75% asset test.

**4. 95% Gross Income Test (Section 856(c)(2))**

All income generated by the portfolio — rents, interest, and operating expense recoveries — also qualifies under the broader 95% gross income test. No non-qualifying income sources were identified in any of the 14 Target Entities.

**5. Distribution Requirements (Section 857(a))**

Fairwater must distribute at least 90% of its REIT taxable income. The additional $74,800,000 in rental income, less allocable expenses, depreciation, and interest on assumed debt totaling $612,000,000 at weighted-average rates of approximately 4.22%–4.68%, will increase REIT taxable income and correspondingly increase required distributions. Fairwater's CFO, Patricia Sung-Calloway, has confirmed that current distrib

**6. Prohibited Transaction Considerations**

Because this is an acquisition rather than a disposition, the prohibited transaction tax under Section 857(b)(6) is not directly implicated. I note for the record, however, that Fairwater should hold the acquired properties with investment intent (not dealer intent) to preserve safe harbor treatment in the event of any future disposition. The entity-level acquisition structure (membership interests rather than direct

The total assumed debt of $612,000,000 is allocated across three lenders, all at fixed rates:

- Pinnacle Federal Bank, N.A.: $421,600,000 at 4.22% (maturity July 1, 2028) - Veltrano Capital Lending Corp.: $142,300,000 at 4.68% (maturity March 1, 2029) - Sycamore Life Insurance Company: $48,100,000 at 3.95% (maturity December 1, 2030)

Interest expense on the assumed debt is deductible and will reduce REIT taxable income and required distributions. There are no variable-rate instruments or hedging arrangements that would generate derivative income or raise passive income characterization issues. All debt is secured by real property, and the encumbered real property remains a qualifying real estate asset for purposes of the asset tests. No mortgage

The five states in which the portfolio properties are located — Georgia, Texas, Florida, Tennessee, and North Carolina — each have varying state income and franchise tax treatment of REITs. Texas imposes no state income tax. Florida, Tennessee, Georgia, and North Carolina each provide state-level REIT deduction or dividend-paid deduction provisions that should substantially reduce or eliminate state-level tax on the

**9. Transition Services / Property Management Structure**

I want to flag one item that requires careful attention. The 90-day transition services arrangement with Argyle Property Services LLC ($375,000 per month, $1,125,000 total) must be reviewed to ensure that the services provided during the transition period do not constitute impermissible tenant services that could taint qualifying rental income. Post-transition, Fairwater Property Management LLC will assume management

Based on my analysis, the proposed $1,100,000,000 portfolio acquisition will not adversely affect Fairwater's qualification as a REIT under Sections 856–860 of the Internal Revenue Code. All income from the portfolio qualifies as "rents from real property," and all assets constitute qualifying "real estate assets." No structural impediments have been identified. I recommend proceeding with the entity-purchase structu

The full REIT Qualification Impact Memorandum is being finalized and will be circulated to you and the Fairwater team — David Elgin Park, Marcus Devereaux, and Leah Torrance — for their records. Happy to discuss any of this further or schedule a call at your convenience.

Sylvia Hartwell Partner, Tax Calderwood & Harkness LLP 1700 K Street NW, Suite 900 Washington, DC 20006 T: (202) 555-4180 E: shartwell@calderwoodharkness.com

*Attachments Referenced:* - REIT Qualification Impact Memorandum (full memorandum to follow) - Preliminary Structure Memorandum (dated November 1, 2023)

*CONFIDENTIALITY NOTICE: This email message and any attachments are intended solely for the use of the addressee(s) named above and may contain information that is privileged, confidential, and exempt from disclosure under applicable law, including attorney-client privilege and attorney work product doctrine. If you are not the intended recipient, or the employee or agent responsible for delivering this message to th