JOINT RELEASE INSTRUCTIONS TO ESCROW AGENT
INDEMNITY ESCROW
Reference:
Indemnity Escrow Agreement dated June 6, 2024 (the "Escrow Agreement"), by and among Greystone Meridian Partners Fund III, L.P. ("Seller"), Fairwater Real Estate Investment Trust ("Buyer"), and Commonwealth National Title Insurance Company ("Escrow Agent")
Underlying Transaction:
Purchase and Sale Agreement dated February 28, 2024, as amended by the First Amendment dated April 12, 2024, and the Second Amendment dated May 28, 2024 (collectively, the "PSA"), by and between Seller and Buyer
Calderwood & Harkness LLP Matter No. 1036-00004
Dated: December _, 2025
(to be dated on or after December 6, 2025 — the "Release Date")
These Joint Release Instructions to Escrow Agent — Indemnity Escrow (these "Release Instructions") are delivered jointly by Fairwater Real Estate Investment Trust, a Maryland real estate investment trust ("Buyer"), and Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership ("Seller"), to Commonwealth National Title Insurance Company ("Escrow Agent"), with reference to the Escrow Agreement and the PSA, each as defined above. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Escrow Agreement or, if not defined therein, in the PSA.
SECTION 1: IDENTIFICATION OF PARTIES AND ADDRESSES
1.1 Escrow Agent
The Escrow Agent under the Escrow Agreement is:
Commonwealth National Title Insurance Company 191 Peachtree Street NE, Suite 800 Atlanta, Georgia 30303
Attention: Kenneth Stanhope, Senior Vice President
Telephone: (404) 555-8200
With a copy to: Virginia Moorehead, AVP, National Counsel Commonwealth National Title Insurance Company 191 Peachtree Street NE, Suite 800 Atlanta, Georgia 30303 Telephone: (404) 555-8215
1.2 Seller. The Seller under the PSA and the Escrow Agreement is:
Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership
By its general partner: Greystone Meridian Capital LLC, a Delaware limited liability company
Principal Office: 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326
Attention: Victor Lansdell, Co-Founder & Managing Partner
and Elise Rathborne, Co-Founder & Managing Partner Telephone: (404) 555-6700 EIN: 83-1647205
Seller's Counsel:
Blackridge Hayes LLP 1285 Avenue of the Americas, 34th Floor New York, New York 10019
Attention: Nathaniel Pryce, Partner
Telephone: (212) 555-3900
1.3 Buyer. The Buyer under the PSA and the Escrow Agreement is:
Fairwater Real Estate Investment Trust, a Maryland real estate investment trust
Principal Office: 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
Attention: David Elgin Park, General Counsel
and Marcus Devereaux, Executive Vice President, Acquisitions Telephone: (443) 555-2100 EIN: 52-2198437
Buyer's Counsel:
Calderwood & Harkness LLP 450 Park Avenue, 28th Floor New York, New York 10022
Attention: Douglas Fairchild, Partner
Telephone: (212) 555-4800
SECTION 2: RECITALS
2.1 Background of the Transaction
A. Pursuant to the PSA dated February 28, 2024, as amended by the First Amendment dated April 12, 2024, and the Second Amendment dated May 28, 2024, Buyer acquired one hundred percent (100%) of the membership interests in each of fourteen (14) property-owning single-purpose Delaware limited liability companies (collectively, the "Target Entities") from Seller. The aggregate purchase price for the membership interests in all Target Entities was One Billion One Hundred Million Dollars ($1,100,000,000), subject to certain prorations and adjustments set forth in the PSA, including a physical condition assessment credit of One Million Seventy Thousand Dollars ($1,070,000), resulting in an adjusted purchase price of One Billion Ninety-Eight Million Nine Hundred Thirty Thousand Dollars ($1,098,930,000) (the "Adjusted Purchase Price").
B. The closing of the transactions contemplated by the PSA (the "Closing") occurred on June 6, 2024 (the "Closing Date"). At the Closing, Seller transferred, assigned, and conveyed to Buyer all of Seller's right, title, and interest in and to the membership interests in the Target Entities, and Buyer accepted such transfer and paid the Adjusted Purchase Price, subject to the terms and conditions of the PSA.
C. The fourteen (14) Target Entities whose membership interests were acquired by Buyer at the Closing are as follows:
1. GMP Fairfield I LLC
2. GMP Fairfield II LLC
3. GMP Westlake LLC
4. GMP Katy LLC
5. GMP Alliance LLC
6. GMP Lakeland LLC
7. GMP Southport LLC
8. GMP Murfreesboro LLC
9. GMP Buckhead LLC
10. GMP SouthPark LLC
11. GMP Cool Springs LLC
12. GMP Brickell LLC
13. GMP Peachtree LLC
14. GMP Mount Juliet LLC
Each of the foregoing Target Entities is a Delaware limited liability company and, as of the Closing Date, was the sole owner of the respective real property asset or assets identified in the PSA.
2.2 Establishment of the Indemnity Escrow
D. At the Closing, and pursuant to the terms and conditions of the Escrow Agreement, Buyer and Seller caused to be deposited with Escrow Agent the sum of Sixteen Million Five Hundred Thousand Dollars ($16,500,000) (equal to one and one-half percent (1.5%) of the unadjusted purchase price of $1,100,000,000) in immediately available funds (the "Indemnity Escrow Deposit"). The Indemnity Escrow Deposit, together with all interest, dividends, and other income earned thereon while held in escrow, is referred to herein as the "Escrow Funds."
E. The Indemnity Escrow was established to secure Seller's indemnification obligations under Article IX of the PSA (the "Indemnification Provisions"), including, without limitation, Seller's obligations to indemnify, defend, and hold harmless Buyer and its affiliates, officers, directors, employees, agents, and representatives (collectively, the "Buyer Indemnified Parties") from and against any Losses (as defined in the PSA) arising from or relating to any breach of Seller's representations and warranties set forth in Article IV of the PSA.
2.3 Survival of Representations and Warranties
F. Pursuant to Section 9.1 of the PSA, the general representations and warranties of Seller set forth in Article IV of the PSA (other than the Fundamental Representations and the Tax Representations, each as defined below) survive the Closing for a period of eighteen (18) months following the Closing Date. Eighteen (18) months from June 6, 2024 is December 6, 2025 (the "General Representation Survival Expiration Date"). On and after the General Representation Survival Expiration Date, the general representations and warranties of Seller have expired, and no new claims may be brought by any Buyer Indemnified Party with respect to any alleged breach thereof, except to the extent a claim notice was delivered to Seller and/or Escrow Agent prior to the General Representation Survival Expiration Date.
G. Certain representations and warranties of Seller designated as "Tax Representations" under the PSA survive the Closing for a period of thirty-six (36) months following the Closing Date — that is, until June 6, 2027 (the "Tax Representation Survival Expiration Date"). The Indemnity Escrow does not serve as security for claims arising from breaches of the Tax Representations; rather, the Indemnity Escrow relates solely to the general representation survival period.
H. The Indemnity Escrow is subject to release upon the expiration of the general representation survival period as described in the Escrow Agreement and further detailed herein.
2.4 Indemnification Thresholds Under the PSA
I. The PSA establishes the following indemnification thresholds and limitations, which remain relevant to the context of these Release Instructions:
(a) General Representation Cap: Seller's aggregate liability for Losses arising from breaches of general representations and warranties shall not exceed Fifty-Five Million Dollars ($55,000,000), representing five percent (5%) of the unadjusted purchase price (the "General Rep Cap").
(b) Fundamental Representation Cap: Seller's aggregate liability for Losses arising from breaches of fundamental representations and warranties shall not exceed One Hundred Ten Million Dollars ($110,000,000), representing ten percent (10%) of the unadjusted purchase price (the "Fundamental Rep Cap").
(c) Basket (Tipping): No indemnification shall be payable by Seller for Losses arising from breaches of general representations and warranties unless and until the aggregate amount of all such Losses exceeds Five Million Five Hundred Thousand Dollars ($5,500,000) (the "Basket"), representing one-half of one percent (0.5%) of the unadjusted purchase price. The Basket operates as a tipping basket (i.e., once the aggregate Losses exceed the Basket, Seller shall be liable for all such Losses from the first dollar, and not merely the excess above the Basket).
(d) De Minimis Threshold: Individual claims for Losses in an amount less than Two Hundred Seventy-Five Thousand Dollars ($275,000) per individual claim shall be disregarded for purposes of determining whether the Basket has been exceeded and shall not be indemnifiable (the "De Minimis Threshold").
(e) Representations and Warranties Insurance: In connection with the Closing, Buyer obtained a buyer-side representations and warranties insurance policy issued by Sentinel Specialty Insurance Company (the "R&W Insurance Policy"), with a policy limit of Fifty-Five Million Dollars ($55,000,000) and a retention of Eleven Million Dollars ($11,000,000), which retention dropped to Five Million Five Hundred Thousand Dollars ($5,500,000) at twelve (12) months following the Closing Date (i.e., on June 6, 2025). The R&W Insurance Policy has its own independent terms, conditions, exclusions, and claims period, which are not affected by these Release Instructions.
2.5 Escrow Agreement Release Provisions
J. Section 4.2(a) of the Escrow Agreement provides that, upon the occurrence of the General Representation Survival Expiration Date, if no claim notice has been delivered by Buyer to Seller and/or Escrow Agent that remains unresolved or pending as of such date, the entire Escrow Funds shall be released and disbursed to Seller upon joint written instructions signed by authorized representatives of both Buyer and Seller delivered to Escrow Agent.
K. Section 4.2(b) of the Escrow Agreement further provides that, if one or more claim notices have been delivered by Buyer to Seller and/or Escrow Agent that remain unresolved or pending as of the General Representation Survival Expiration Date, the Escrow Agent shall retain in escrow a holdback amount sufficient to cover such pending claims and shall release the balance of the Escrow Funds to Seller upon joint written instructions.
L. These Release Instructions constitute the "joint written instructions" referenced in the Escrow Agreement for purposes of effecting the release of the Escrow Funds following the General Representation Survival Expiration Date.
SECTION 3: CERTIFICATIONS AND REPRESENTATIONS
3.1 Buyer's Certification
Buyer hereby certifies and represents to Seller and Escrow Agent that, as of the date of these Release Instructions, the following statements are true, correct, and complete:
(a) No Pending Claim Notices. Buyer has not delivered to Seller or Escrow Agent any notice of claim (a "Claim Notice") under the Indemnification Provisions of the PSA that remains unresolved or pending as of the date hereof. To the extent any Claim Notices were delivered prior to the date hereof, each such Claim Notice has been fully and finally resolved to the mutual satisfaction of Buyer and Seller, and no amounts remain owing to any Buyer Indemnified Party in connection therewith.
(b) No Known Basis for Future Claims. As of the date hereof, Buyer is not aware of any facts, circumstances, events, or conditions that would reasonably be expected to give rise to a claim under Seller's general representations and warranties set forth in Article IV of the PSA (other than Tax Representations and Fundamental Representations, to the extent applicable) that has not been previously identified and resolved. This certification is made to the actual knowledge of the Buyer's Knowledge Individuals identified below, without any duty of independent investigation or inquiry beyond the ordinary course of Buyer's business.
(c) No Pending Proceedings. No litigation, arbitration, mediation, or other dispute resolution proceeding is pending or, to Buyer's knowledge, threatened, relating to any claim for which the Indemnity Escrow was established as security, including, without limitation, any third-party claim for which Buyer would be entitled to seek indemnification from Seller under the general representations and warranties of the PSA.
(d) Expiration of General Representation Survival Period. The General Representation Survival Expiration Date (December 6, 2025) has occurred as of the date hereof, and the general representations and warranties of Seller set forth in Article IV of the PSA (other than Tax Representations and Fundamental Representations) have expired in accordance with their terms. No new claims may be asserted by any Buyer Indemnified Party with respect to any alleged breach of such general representations and warranties.
For purposes of the certifications set forth in this Section 3.1, "Buyer's Knowledge Individuals" means each of the following individuals:
(i) Marcus Devereaux, Executive Vice President, Acquisitions, Fairwater Real Estate Investment Trust;
(ii) Leah Torrance, Senior Vice President, Asset Management, Fairwater Real Estate Investment Trust; and
(iii) David Elgin Park, General Counsel, Fairwater Real Estate Investment Trust.
3.2 Seller's Certification
Seller hereby certifies and represents to Buyer and Escrow Agent that, as of the date of these Release Instructions, the following statements are true, correct, and complete:
(a) No Pending Claim Notices Received. Seller has not received from Buyer any Claim Notice under the Indemnification Provisions of the PSA that remains unresolved or pending as of the date hereof. To the extent any Claim Notices were received by Seller prior to the date hereof, each such Claim Notice has been fully and finally resolved, and Seller has no outstanding obligation to indemnify or make payment to any Buyer Indemnified Party in connection therewith.
(b) No Pending Proceedings. No litigation, arbitration, mediation, or other dispute resolution proceeding has been initiated by Buyer (or by any third party making a claim that would implicate Seller's indemnification obligations under the PSA) that remains pending as of the date hereof with respect to any matter for which the Indemnity Escrow was established as security.
For purposes of the certifications set forth in this Section 3.2, "Seller's Knowledge Individuals" means each of the following individuals:
(i) Victor Lansdell, Co-Founder & Managing Partner, Greystone Meridian Capital LLC (general partner of Seller);
(ii) Elise Rathborne, Co-Founder & Managing Partner, Greystone Meridian Capital LLC (general partner of Seller); and
(iii) Sean Kilpatrick, Portfolio Manager, Argyle Property Services LLC (the property management and asset services affiliate engaged by Seller in connection with the portfolio).
SECTION 4: JOINT RELEASE INSTRUCTIONS
4.1 Direction to Release
Based on the certifications and representations set forth in Section 3 above, and in accordance with the release provisions of the Escrow Agreement (including, without limitation, Section 4.2(a) thereof), Buyer and Seller hereby jointly and irrevocably instruct Escrow Agent to release the entire Indemnity Escrow balance of Sixteen Million Five Hundred Thousand Dollars ($16,500,000), together with all interest, dividends, and other income or earnings accrued thereon while held in escrow (collectively, the "Escrow Funds"), to Seller.
For the avoidance of doubt, the direction to release set forth in this Section 4.1 is unconditional and irrevocable upon delivery of these fully executed Release Instructions to Escrow Agent, subject only to the timing provisions set forth in Section 4.3 below and the Escrow Agent fee provisions set forth in Section 7.2 below.
4.2 Wire Transfer Instructions for Release
Escrow Agent is hereby directed to disburse the Escrow Funds by wire transfer of immediately available funds to Seller's account in accordance with the following wire transfer instructions:
Bank: Magnolia Commerce Bank, N.A. Bank Address: 225 Peachtree Street NE, Suite 100, Atlanta, Georgia 30303 Bank Contact: Linda Prescott, Vice President, Commercial Banking Telephone: (404) 555-3250 Account Name: Greystone Meridian Partners Fund III, L.P. ABA Routing Number: ______ **Account Number:** ______ Reference: Indemnity Escrow Release — Fairwater / GMP Fund III PSA dated 2/28/2024
Complete verified wire transfer instructions are attached hereto as Exhibit B. In the event of any discrepancy between the wire transfer instructions set forth in this Section 4.2 and those set forth in Exhibit B, the instructions set forth in Exhibit B shall control, provided that Escrow Agent may, in its sole discretion, contact Seller's authorized representative(s) to confirm the applicable wire transfer instructions prior to initiating any wire transfer.
4.3 Timing of Disbursement
Escrow Agent shall disburse the Escrow Funds within three (3) business days following receipt of these fully executed Release Instructions by Escrow Agent. For purposes hereof, "business day" means any day other than a Saturday, Sunday, or day on which commercial banks in the State of New York or the State of Georgia are authorized or required by law or executive order to close.
Notwithstanding the foregoing, these Release Instructions shall become effective only on or after December 6, 2025 (the General Representation Survival Expiration Date). In the event these Release Instructions are delivered to Escrow Agent prior to December 6, 2025, Escrow Agent shall hold these Release Instructions and shall not disburse the Escrow Funds until the first business day occurring on or after December 6, 2025, at which point the three (3) business day disbursement period described in the preceding sentence shall commence.
Escrow Agent shall provide written confirmation (which may be by electronic mail) to each of Buyer, Seller, Buyer's Counsel, and Seller's Counsel upon completion of the wire transfer, including the date of disbursement, the amount disbursed (including the principal amount and the amount of accrued interest), and the wire transfer reference number.
SECTION 5: ALTERNATIVE INSTRUCTIONS — PARTIAL RELEASE (IF CLAIMS PENDING)
5.1 Pending Claims Holdback
In the event that, as of the date hereof, any Claim Notice has been delivered by Buyer to Seller and/or Escrow Agent pursuant to the Indemnification Provisions of the PSA that remains unresolved or pending (each, a "Pending Claim"), then, notwithstanding anything to the contrary set forth in Section 4, these Release Instructions shall be modified as follows:
(a) Retention of Holdback Amount. Escrow Agent shall retain in escrow an amount equal to the greater of (x) the aggregate claimed amount set forth in each applicable Claim Notice delivered by Buyer with respect to such Pending Claim and (y) such greater amount as may be determined by a court of competent jurisdiction, an arbitration panel, or as mutually agreed upon in writing by Buyer and Seller (the "Holdback Amount"). The Holdback Amount shall continue to be held by Escrow Agent in the same escrow account and invested in the same manner as provided in the Escrow Agreement, pending final resolution of the applicable Pending Claim(s).
(b) Partial Release of Balance. Escrow Agent shall release to Seller the balance of the Escrow Funds in excess of the aggregate Holdback Amount, by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth in Section 4.2 above and Exhibit B hereto, within three (3) business days following receipt of these fully executed Release Instructions (subject to the timing provisions of Section 4.3).
5.2 Subsequent Release of Holdback
Upon final resolution of each Pending Claim, whether by (i) mutual written agreement of Buyer and Seller, (ii) final and non-appealable arbitration award, or (iii) final and non-appealable order or judgment of a court of competent jurisdiction, Buyer and Seller shall promptly (and in any event within ten (10) business days following such final resolution) deliver supplemental joint release instructions to Escrow Agent directing Escrow Agent to disburse the Holdback Amount (or applicable portion thereof) as follows:
(a) To Buyer: To the extent of any agreed or adjudicated indemnification payment owed to Buyer (or any other Buyer Indemnified Party) in connection with the applicable Pending Claim, by wire transfer of immediately available funds to such account as Buyer shall designate in the supplemental release instructions.
(b) To Seller: To the extent the Holdback Amount (or any portion thereof) exceeds the amount owed to Buyer in connection with the applicable Pending Claim, by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth in Section 4.2 above and Exhibit B hereto (or such updated instructions as Seller may provide at that time).
If the final resolution of a Pending Claim results in a determination that no indemnification payment is owed to Buyer with respect to such Pending Claim, the entire Holdback Amount attributable to such Pending Claim shall be released to Seller.
5.3 Confirmation — No Pending Claims (Applicable Version)
Based on the certifications and representations of Buyer set forth in Section 3.1 and the certifications and representations of Seller set forth in Section 3.2, the parties hereby confirm that, as of the date of execution of these Release Instructions, there are no Pending Claims. No Claim Notice has been delivered by Buyer to Seller or Escrow Agent that remains unresolved or pending. Accordingly, Section 5.1 and Section 5.2 of these Release Instructions do not apply, and the full Escrow Funds (including all accrued interest and earnings) shall be released to Seller pursuant to Section 4 above without holdback or reservation.
SECTION 6: TAX MATTERS
6.1 Tax Reporting
In accordance with Section 6 of the Escrow Agreement and applicable provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury Regulations promulgated thereunder, all interest, dividends, and other income earned on the Escrow Funds during the period in which the Escrow Funds were held in escrow shall be reported for federal, state, and local income tax purposes under the taxpayer identification number of Seller (EIN: 83-1647205). Seller is and has been the owner of the Escrow Funds for federal income tax purposes at all times during the escrow period, and Seller has been responsible for the payment of all taxes arising from income earned on the Escrow Funds.
Escrow Agent shall issue IRS Form 1099-INT (or such other applicable information reporting form as may be required under the Code and applicable Treasury Regulations) to Seller for each calendar year (or portion thereof) during which interest or other taxable income was earned on the Escrow Funds, including calendar year 2024 and calendar year 2025. Escrow Agent shall furnish copies of all such information returns to Seller and to the Internal Revenue Service in accordance with applicable law and within the time periods prescribed thereunder.
6.2 Withholding. Escrow Agent shall not be required to withhold any portion of the Escrow Funds, or any interest or other income earned thereon, for federal, state, or local tax purposes, unless (a) such withholding is required by applicable law, regulation, or order of a governmental authority, and (b) Seller has failed to provide Escrow Agent with a valid, properly completed IRS Form W-9 (Request for Taxpayer Identification Number and Certification) or such other documentation as may be required to establish an exemption from backup withholding under Section 3406 of the Code. Seller represents and warrants that it has previously provided Escrow Agent with a valid IRS Form W-9 and that the taxpayer identification number and other information set forth therein remain true, correct, and complete as of the date hereof.
SECTION 7: ESCROW AGENT PROTECTIONS
7.1 Reliance. Escrow Agent may conclusively rely upon these Release Instructions without independent investigation, verification, or inquiry, provided that these Release Instructions are signed by duly authorized representatives of both Buyer and Seller. Escrow Agent shall not be required to determine the authenticity or validity of any signature (other than by visual comparison with signature specimens previously on file, if any), and shall be entitled to assume that each person executing these Release Instructions on behalf of a party hereto is duly authorized to do so. Escrow Agent shall have no liability to any party hereto, or to any other person or entity, for acting in good faith in accordance with these Release Instructions, and shall be indemnified and held harmless by Buyer and Seller in accordance with the indemnification provisions set forth in the Escrow Agreement.
7.2 Escrow Agent Fees
Any final escrow agent fees and expenses owing to Commonwealth National Title Insurance Company in connection with the establishment, maintenance, and administration of the Indemnity Escrow (including, without limitation, any fees for the calendar year in which disbursement occurs) shall be deducted from the Escrow Funds prior to disbursement to Seller, unless Buyer and Seller have arranged for separate payment of such fees. To the extent such fees are to be borne by the parties in accordance with Section 8.3 of the Escrow Agreement (which provides for an equal sharing of Escrow Agent's fees and expenses, with each of Buyer and Seller responsible for fifty percent (50%) thereof), Escrow Agent may, at its option, (a) deduct Seller's fifty percent (50%) share from the Escrow Funds prior to disbursement and invoice Buyer separately for Buyer's fifty percent (50%) share, or (b) invoice each of Buyer and Seller separately for their respective shares without deduction from the Escrow Funds. Escrow Agent shall provide Buyer and Seller with a final accounting and invoice for all fees and expenses prior to or contemporaneously with disbursement of the Escrow Funds.
7.3 Termination of Escrow Agreement
Upon Escrow Agent's complete disbursement of the Escrow Funds in accordance with these Release Instructions (including the deduction of any Escrow Agent fees as described in Section 7.2), the Escrow Agreement shall automatically terminate and be of no further force or effect; provided, however, that those provisions of the Escrow Agreement that by their terms expressly survive termination shall continue in full force and effect, including, without limitation, (a) the indemnification obligations of Buyer and Seller in favor of Escrow Agent set forth in Section 7 of the Escrow Agreement, (b) the dispute resolution provisions set forth in Section 10 of the Escrow Agreement, and (c) the governing law and jurisdiction provisions set forth in Section 11 of the Escrow Agreement. Upon termination, Escrow Agent shall have no further duties or obligations under the Escrow Agreement, except as expressly set forth in the surviving provisions.
SECTION 8: GOVERNING LAW AND MISCELLANEOUS
8.1 Governing Law
These Release Instructions shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to the conflicts of law principles thereof (other than Section 5-1401 and Section 5-1402 of the New York General Obligations Law), consistent with the governing law provisions of the PSA and the Escrow Agreement. Any dispute arising out of or relating to these Release Instructions shall be subject to the exclusive jurisdiction of the federal and state courts located in the Borough of Manhattan, City of New York, State of New York, and each of the parties hereto hereby irrevocably consents to the jurisdiction of such courts.
8.2 Counterparts. These Release Instructions may be executed in two or more counterparts, each of which shall be deemed an original, and all of which, when taken together, shall constitute one and the same instrument. Delivery of an executed counterpart of these Release Instructions by electronic transmission, including by portable document format (PDF) attachment to electronic mail, or by electronic signature platform (including Brightwater Software, Ashford Health IT, or similar technology), shall be effective as delivery of a manually executed original counterpart hereof.
8.3 Conflict with Escrow Agreement
In the event of any conflict or inconsistency between the terms and provisions of these Release Instructions and the terms and provisions of the Escrow Agreement, the terms and provisions of the Escrow Agreement shall govern and control. These Release Instructions are intended to supplement, and not amend, modify, or supersede, the Escrow Agreement, and shall be construed in a manner consistent therewith to the greatest extent possible.
8.4 Entire Agreement
These Release Instructions, together with the Escrow Agreement and the PSA (including all amendments, exhibits, and schedules thereto), constitute the entire understanding and agreement of the parties with respect to the release and disbursement of the Indemnity Escrow, and supersede all prior or contemporaneous oral or written proposals, negotiations, agreements, or understandings relating to the subject matter hereof. No amendment, modification, or waiver of any provision of these Release Instructions shall be effective unless set forth in writing and signed by Buyer, Seller, and Escrow Agent.
SECTION 9: PRESERVATION OF RIGHTS UNDER R&W INSURANCE AND TAX REPRESENTATION SURVIVAL
9.1 Representations and Warranties Insurance
Nothing in these Release Instructions shall be construed to affect, limit, impair, or waive any rights, remedies, or claims of Buyer under the buyer-side representations and warranties insurance policy issued by Sentinel Specialty Insurance Company (Policy No. SSI-RWI-2024-04872, with a policy limit of Fifty-Five Million Dollars ($55,000,000) and an initial retention of Eleven Million Dollars ($11,000,000), which retention dropped to Five Million Five Hundred Thousand Dollars ($5,500,000) effective June 6, 2025 (twelve (12) months following the Closing Date)) (the "R&W Insurance Policy"). The R&W Insurance Policy has its own independent terms, conditions, exclusions, limitations, and claims period, which are governed solely by the terms thereof and the applicable insurance law. The release of the Indemnity Escrow to Seller pursuant to these Release Instructions does not constitute a waiver, release, or modification of any coverage afforded by the R&W Insurance Policy, and Buyer expressly reserves all rights and remedies under the R&W Insurance Policy.
9.2 Tax Representations
The release of the Indemnity Escrow to Seller pursuant to these Release Instructions does not affect, limit, impair, or waive any rights of any Buyer Indemnified Party to seek indemnification from Seller for Losses arising from breaches of Seller's tax representations and warranties set forth in the PSA. The Tax Representations survive the Closing for a period of thirty-six (36) months following the Closing Date, expiring on June 6, 2027 (the Tax Representation Survival Expiration Date). Buyer expressly reserves all rights and remedies under the PSA with respect to breaches of the Tax Representations, subject to the applicable indemnification caps and limitations set forth in the PSA, including, without limitation, the General Rep Cap and the Fundamental Rep Cap, as applicable.
9.3 Fundamental Representations
To the extent any fundamental representations of Seller set forth in the PSA (including, without limitation, representations regarding organization, authority, title to membership interests, and absence of broker's fees) have a survival period extending beyond the eighteen (18) month general representation survival period, the release of the Indemnity Escrow to Seller pursuant to these Release Instructions shall not limit, impair, or waive any right of any Buyer Indemnified Party to pursue direct claims against Seller for breaches of such fundamental representations, subject to the Fundamental Rep Cap of One Hundred Ten Million Dollars ($110,000,000) and the other applicable limitations and procedures set forth in Article IX of the PSA. For the avoidance of doubt, the Indemnity Escrow was established solely as security for general representation claims during the eighteen (18) month survival period, and its release does not affect Buyer's rights to seek indemnification from Seller directly (i.e., outside of the escrow mechanism) for breaches of fundamental representations, tax representations, or any other representations with a survival period extending beyond December 6, 2025.
[SIGNATURE PAGES FOLLOW]
SIGNATURE PAGE TO JOINT RELEASE INSTRUCTIONS TO ESCROW AGENT — INDEMNITY ESCROW
IN WITNESS WHEREOF, the undersigned have executed these Joint Release Instructions to Escrow Agent — Indemnity Escrow as of the date first set forth above.
BUYER:
FAIRWATER REAL ESTATE INVESTMENT TRUST, a Maryland real estate investment trust
By: ________
Name: Marcus Devereaux
Title: Executive Vice President, Acquisitions
Date: ________
SIGNATURE PAGE TO JOINT RELEASE INSTRUCTIONS TO ESCROW AGENT — INDEMNITY ESCROW
SELLER:
GREYSTONE MERIDIAN PARTNERS FUND III, L.P., a Delaware limited partnership
By: Greystone Meridian Capital LLC,
a Delaware limited liability company, its General Partner
By: ________
Name: Victor Lansdell
Title: Co-Founder & Managing Partner
Date: ________
SIGNATURE PAGE TO JOINT RELEASE INSTRUCTIONS TO ESCROW AGENT — INDEMNITY ESCROW
ACKNOWLEDGED AND AGREED — ESCROW AGENT:
COMMONWEALTH NATIONAL TITLE INSURANCE COMPANY
By: ________
Name: Kenneth Stanhope
Title: Senior Vice President
Date: ________
EXHIBIT A
ESCROW AGREEMENT (Incorporated by Reference)
The fully executed Indemnity Escrow Agreement dated June 6, 2024 (the "Escrow Agreement"), by and among Greystone Meridian Partners Fund III, L.P. ("Seller"), Fairwater Real Estate Investment Trust ("Buyer"), and Commonwealth National Title Insurance Company ("Escrow Agent"), is incorporated herein by reference as if set forth in full.
Summary of Key Terms of the Escrow Agreement:
A true, correct, and complete copy of the fully executed Escrow Agreement (including all exhibits and schedules thereto) is on file with each of the parties and their respective counsel and is available upon request.
EXHIBIT B
WIRE TRANSFER INSTRUCTIONS — SELLER
The following verified wire transfer instructions shall be used by Escrow Agent for disbursement of the Escrow Funds to Seller in accordance with Section 4.2 of these Release Instructions:
IMPORTANT NOTICE: These wire transfer instructions have been verified by Seller and Seller's counsel. Escrow Agent is instructed to rely on these instructions for the disbursement of the Escrow Funds. In the event Escrow Agent receives any communication purporting to change these wire transfer instructions, Escrow Agent shall independently verify any such change by direct telephone contact with Victor Lansdell or Elise Rathborne at (404) 555-6700 and with Nathaniel Pryce of Blackridge Hayes LLP at (212) 555-3900, prior to acting on any such changed instructions. Escrow Agent shall not be liable for any delay in disbursement resulting from its compliance with this verification requirement.
TRANSMITTAL COVER LETTER
December _, 2025
CALDERWOOD & HARKNESS LLP 450 Park Avenue, 28th Floor New York, New York 10022
Douglas Fairchild, Partner Grace Nakamura, Lead Associate Telephone: (212) 555-4800 Facsimile: (212) 555-4801
VIA ELECTRONIC MAIL AND OVERNIGHT COURIER
Kenneth Stanhope, Senior Vice President Commonwealth National Title Insurance Company 191 Peachtree Street NE, Suite 800 Atlanta, Georgia 30303
Re: Release of Indemnity Escrow — Fairwater Real Estate Investment Trust / Greystone Meridian Partners Fund III, L.P. Portfolio Acquisition Calderwood & Harkness LLP Matter No. 1036-00004
Dear Mr. Stanhope:
We represent Fairwater Real Estate Investment Trust ("Buyer") in connection with the above-referenced matter. We write to transmit the enclosed fully executed Joint Release Instructions to Escrow Agent — Indemnity Escrow (the "Release Instructions"), directed to Commonwealth National Title Insurance Company in its capacity as Escrow Agent under the Indemnity Escrow Agreement dated June 6, 2024 (the "Escrow Agreement").
As you are aware, the Escrow Agreement was established in connection with Buyer's acquisition of 100% of the membership interests in fourteen (14) property-owning single-purpose Delaware limited liability companies from Greystone Meridian Partners Fund III, L.P. ("Seller") pursuant to the Purchase and Sale Agreement dated February 28, 2024 (as amended, the "PSA"). At closing on June 6, 2024, the parties deposited $16,500,000 with your institution as escrow agent to secure Seller's indemnification obligations with respect to general representations and warranties under the PSA.
The eighteen (18) month general representation survival period under the PSA expired on December 6, 2025 (the "General Representation Survival Expiration Date"). We confirm that:
1. The General Representation Survival Expiration Date has occurred.
2. No pending or unresolved Claim Notices have been delivered by Buyer to Seller or to the Escrow Agent under the indemnification provisions of the PSA.
3. Both Buyer and Seller have executed the enclosed Release Instructions, jointly and irrevocably directing the Escrow Agent to disburse the full Escrow Funds — consisting of the principal amount of $16,500,000, together with all accrued interest and earnings thereon — to Seller in accordance with the wire transfer instructions set forth in the Release Instructions and the attached Exhibit B.
Enclosed please find the following documents:
1. Fully executed Joint Release Instructions to Escrow Agent — Indemnity Escrow (including all signature pages);
2. Exhibit A — Escrow Agreement (incorporated by reference); and
3. Exhibit B — Wire Transfer Instructions (Seller).
We respectfully request that you process the disbursement in accordance with the terms of the Release Instructions — specifically, within three (3) business days following your receipt of these fully executed Release Instructions. Upon completion of the wire transfer, we kindly ask that you provide written confirmation of the disbursement (including the date, amount disbursed, and wire reference number) to each of the following:
• Douglas Fairchild, Calderwood & Harkness LLP — dfairchild@calderwoodharkness.com
• Grace Nakamura, Calderwood & Harkness LLP — gnakamura@calderwoodharkness.com
• Nathaniel Pryce, Blackridge Hayes LLP — npryce@blackridgehayes.com
• David Elgin Park, Fairwater REIT — dpark@fairwaterreit.com