MANAGER CHANGE FILINGS — 14 TARGET ENTITIES (DELAWARE)
Post-Closing Entity Filings with the Delaware Secretary of State
Matter: Fairwater Real Estate Investment Trust — Acquisition of 14-Property Sun Belt Logistics & Office Portfolio from Greystone Meridian Partners Fund III, L.P.
Matter Number: 1036-00004
Prepared by:
CALDERWOOD & HARKNESS LLP 1700 K Street NW, Suite 900 Washington, DC 20006
450 Park Avenue, 28th Floor New York, NY 10022
Responsible Partner: Douglas Fairchild Working Associate: Rafael Dominguez
Date Prepared: June 2024 (Post-Closing of June 6, 2024)
CONFIDENTIAL — ATTORNEY WORK PRODUCT / ATTORNEY-CLIENT PRIVILEGED
This document and the information contained herein are protected by the attorney-client privilege and the work product doctrine. This document was prepared by Calderwood & Harkness LLP at the direction of Fairwater Real Estate Investment Trust and its in-house legal department in connection with the above-referenced matter. Any unauthorized review, use, disclosure, or distribution of this document is strictly prohibited. If you are not the intended recipient, please contact Calderwood & Harkness LLP immediately and destroy all copies of this document.
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I. TRANSMITTAL MEMORANDUM
June 10, 2024
TO: David Elgin Park, Esq. General Counsel Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
Camille Oduya, Esq. In-House Real Estate Counsel Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
FROM: Rafael Dominguez Calderwood & Harkness LLP 1700 K Street NW, Suite 900 Washington, DC 20006
RE: Post-Closing Delaware Secretary of State Filings — Manager/Member Updates for 14 Target Entity LLCs
David and Camille:
Following the closing of the acquisition on June 6, 2024, Fairwater Real Estate Investment Trust ("Fairwater" or "Fairwater REIT") acquired 100% of the membership interests in each of the 14 single-purpose Delaware limited liability companies (each, a "Target Entity" and collectively, the "Target Entities") previously owned by Greystone Meridian Partners Fund III, L.P. ("GMP Fund III"). This memorandum transmits the Certificates of Amendment to the Certificates of Formation for each Target Entity, to be filed with the Delaware Secretary of State, updating the authorized person/manager information on the public record to reflect Fairwater REIT as the sole member of each Target Entity.
As you are aware, Delaware does not require annual reports for limited liability companies. However, the Certificate of Formation on file with the Delaware Secretary of State identifies the authorized person for each LLC at the time of its formation. In the case of each Target Entity, the authorized person currently on file is Greystone Meridian Capital LLC, the general partner of GMP Fund III that organized each LLC. To ensure that the public record accurately reflects the current ownership and management of each Target Entity, we are preparing and recommending the filing of a Certificate of Amendment to the Certificate of Formation for each of the 14 Target Entities.
The Delaware filing fee for each Certificate of Amendment is $200.00. The total filing fees for all 14 Certificates of Amendment will therefore be:
14 × $200.00 = $2,800.00
We recommend that each Certificate of Amendment be filed electronically via the Delaware Division of Corporations filing portal. Alternatively, physical submissions may be made to the Delaware Secretary of State at the following address:
Delaware Division of Corporations 401 Federal Street, Suite 4 Dover, Delaware 19901
Please note that separate foreign qualification update filings are being prepared for submission in Georgia, Texas, Florida, Tennessee, and North Carolina. Those filings are addressed in a companion memorandum titled Foreign Qualification Filings — Target Entities (5 States), which will be transmitted under separate cover.
We have included in this package the following materials for your review:
1. A summary table identifying all 14 Target Entities, their EINs, the prior and new member/manager information, and the applicable filing fees (Section II);
2. Background information regarding the transaction and the basis for these filings (Section III);
3. Detailed filing instructions and procedures (Section IV);
4. Individual Certificates of Amendment in execution-ready form for each of the 14 Target Entities (Section V);
5. A discussion of registered agent considerations requiring Fairwater's direction (Section VI);
6. A summary of related post-closing filings that are being coordinated in parallel (Section VII);
7. A filing status tracker for monitoring submission and confirmation of each Certificate of Amendment (Section VIII); and
8. Exhibits and attachments, including a clean form template, entity formation summaries, copies of the executed Assignments and Assumptions of Membership Interests, and contact information for the Delaware Division of Corporations (Section IX).
We request that Fairwater review the enclosed Certificates of Amendment and advise on the following action items at your earliest convenience:
• Signatory confirmation. Please confirm that Marcus Devereaux, EVP, Acquisitions, is the authorized signatory for each Certificate of Amendment, or identify an alternative officer designated by Fairwater to execute these filings.
• Effective date. Please confirm whether each Certificate of Amendment should be effective upon filing with the Delaware Secretary of State, or whether Fairwater desires a retroactive effective date of June 6, 2024, to correspond with the closing date. We note that Delaware permits the specification of a future or delayed effective date but does not expressly provide for retroactive effective dates. If a retroactive date is desired, we can discuss the practical and legal implications of that approach.
• Registered agent. Please confirm whether Fairwater wishes to retain the current registered agent (Pemberton Industries, 1209 Orange Street, Wilmington, Delaware 19801) for each Target Entity, or whether Fairwater prefers to appoint a new registered agent of its own selection. If a change of registered agent is desired, we will prepare and file the necessary Certificate of Change of Registered Agent for each entity.
• Expedited processing. We recommend 24-hour expedited processing for all 14 filings, which would require an additional fee of $50 per filing, or $700 in total. Please confirm whether you would like us to proceed with expedited processing, standard processing, or same-day service (an additional $100 per filing, or $1,400 in total).
Please do not hesitate to contact me directly at (202) 555-8140 or rdominguez@calderwoodharkness.com with any questions or instructions regarding these filings. We are prepared to submit all 14 Certificates of Amendment promptly upon receipt of your authorization.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Rafael Dominguez Working Associate
cc: Douglas Fairchild, Partner, Calderwood & Harkness LLP
II. SUMMARY TABLE OF FILINGS
The following table summarizes the 14 Certificates of Amendment to be filed with the Delaware Secretary of State. Each filing updates the authorized person/manager information on the public record to reflect the change in membership from Greystone Meridian Partners Fund III, L.P. to Fairwater Real Estate Investment Trust.
Total Filing Fees: $2,800.00
Note: Delaware File Numbers for each Target Entity are to be confirmed against the original Certificates of Formation on file. The due diligence record room should contain copies of all filed Certificates of Formation; however, each entity's Delaware File Number can also be obtained through a search of the Delaware Division of Corporations online entity database. We will confirm all file numbers prior to submission and will update this table accordingly.
III. BACKGROUND
A. The Transaction
On June 6, 2024, Fairwater Real Estate Investment Trust, a Maryland real estate investment trust with its principal executive offices at 7200 Chesapeake Parkway, Suite 1100, Columbia, Maryland 21044 (NYSE: FREIT) ("Fairwater" or "Fairwater REIT"), completed its acquisition of 100% of the membership interests in 14 single-purpose Delaware limited liability companies (the "Target Entities") from Greystone Meridian Partners Fund III, L.P. ("GMP Fund III"), a Delaware limited partnership whose general partner is Greystone Meridian Capital LLC ("Greystone Meridian Capital" or the "GP"), pursuant to a Purchase and Sale Agreement dated February 28, 2024 (the "PSA").
The aggregate purchase price for the transaction was $1,100,000,000, structured as follows:
• Assumed mortgage debt: $612,000,000 in existing mortgage debt secured by the underlying real property assets held by the Target Entities, which was assumed by Fairwater at closing;
• Cash equity consideration: $488,000,000 in cash, subject to customary closing adjustments; and
• PCA credit: A credit of $1,070,000 applied against the purchase price in connection with property condition assessment items identified during due diligence.
The transaction was structured as an acquisition of membership interests rather than a direct acquisition of real property assets. This structure was selected to preserve the single-purpose entity framework, to maintain existing debt and mortgage arrangements, and to achieve certain tax efficiencies associated with the assumption of in-place indebtedness.
B. The Target Entities
The 14 Target Entities are each organized as Delaware limited liability companies. Each Target Entity was formed as a single-purpose entity holding title to one property in a Sun Belt logistics and office portfolio spanning five states: Georgia, Texas, Florida, Tennessee, and North Carolina. The portfolio comprises approximately 5,224,000 rentable square feet across the 14 properties.
Prior to the closing of the transaction, each Target Entity was a wholly-owned subsidiary of GMP Fund III. Greystone Meridian Capital LLC, in its capacity as the general partner of GMP Fund III, served as the authorized person and/or manager of each LLC. Greystone Meridian Capital is the entity whose name and address appear on the original Certificate of Formation filed with the Delaware Secretary of State for each Target Entity as the authorized person who executed the Certificate of Formation at the time of the LLC's organization.
C. Closing and Transfer of Membership Interests
At the closing on June 6, 2024, 100% of the membership interests in each of the 14 Target Entities were assigned from GMP Fund III to Fairwater REIT. The transfer of membership interests was effectuated by way of executed Assignments and Assumptions of Membership Interests (each, an "Assignment"), one for each Target Entity, whereby GMP Fund III, as assignor, assigned all of its right, title, and interest in and to the membership interests in each Target Entity to Fairwater REIT, as assignee. Fairwater REIT assumed all obligations and liabilities associated with the membership interests in each Target Entity as of the closing date, in accordance with the terms of the PSA and the respective Assignments.
D. Amended and Restated Operating Agreements
Contemporaneous with the closing, Amended and Restated Operating Agreements were adopted for each of the 14 Target Entities, effective as of June 6, 2024. Each Amended and Restated Operating Agreement designates Fairwater Real Estate Investment Trust as the sole member and manager of the respective Target Entity, replacing GMP Fund III as the sole member and Greystone Meridian Capital as the manager. The Amended and Restated Operating Agreements govern the internal affairs of each Target Entity and are not required to be filed with the Delaware Secretary of State.
E. Purpose of These Filings
While Delaware law does not require the filing of amendments to a Certificate of Formation upon a change in membership or management of a limited liability company, it is advisable and customary practice to update the authorized person information on the public record maintained by the Delaware Secretary of State. The Certificate of Formation of a Delaware LLC identifies the authorized person who executed and filed the original Certificate of Formation at the time of the LLC's organization. Updating this information ensures that the public record accurately reflects the current authorized person for each Target Entity and avoids potential confusion in connection with future filings, third-party inquiries, title searches, or transactions involving the Target Entities.
Accordingly, Calderwood & Harkness is preparing and recommending the filing of a Certificate of Amendment to the Certificate of Formation for each of the 14 Target Entities, pursuant to Section 18-202 of the Delaware Limited Liability Company Act (6 Del. C. § 18-202), to update the authorized person information from Greystone Meridian Capital LLC to Fairwater Real Estate Investment Trust.
IV. FILING INSTRUCTIONS AND PROCEDURES
The following instructions and procedures apply to the filing of each Certificate of Amendment with the Delaware Secretary of State.
A. Scope of Amendment
Each Certificate of Amendment amends the original Certificate of Formation for the respective Target Entity LLC. The sole substantive change in each Certificate of Amendment is the update of the name and address of the authorized person as follows:
Prior Authorized Person: Greystone Meridian Capital LLC 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326
New Authorized Person: Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
No other provisions of the Certificate of Formation are being amended at this time. The name of each Target Entity remains unchanged. The registered agent information is addressed separately in Section VI below.
B. Authorized Signatory
Each Certificate of Amendment is required to be signed by an authorized person of the LLC. Pursuant to the Amended and Restated Operating Agreements adopted effective June 6, 2024, Fairwater REIT is the sole member and manager of each Target Entity and is therefore the authorized person of each LLC. Each Certificate of Amendment will be executed on behalf of Fairwater Real Estate Investment Trust by its designated officer.
The authorized signatory designated for these filings is:
Marcus Devereaux Executive Vice President, Acquisitions Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
If Fairwater wishes to designate an alternative officer to execute the Certificates of Amendment, please advise Calderwood & Harkness accordingly, and the signature blocks will be updated prior to execution.
C. Filing Method
Each Certificate of Amendment may be filed with the Delaware Secretary of State by one of the following methods:
1. Electronic Filing. The Delaware Division of Corporations maintains an electronic filing portal through which Certificates of Amendment for limited liability companies may be submitted online. Electronic filing is the preferred method, as it typically results in faster processing and provides an immediate electronic confirmation of filing. The electronic filing portal is accessible at https://icis.corp.delaware.gov.
2. Physical Submission. Alternatively, Certificates of Amendment may be submitted by mail or in person to the Delaware Division of Corporations at the following address:
Delaware Division of Corporations 401 Federal Street, Suite 4 Dover, Delaware 19901
If submitting by mail, each Certificate of Amendment should be accompanied by a cover letter identifying the entity name and file number, the nature of the filing, and the return address for the stamped filed copy. A self-addressed stamped envelope should be included for return of the filed copy.
We recommend electronic filing for all 14 Certificates of Amendment to ensure efficiency and prompt confirmation of acceptance.
D. Filing Fees and Payment
The filing fee for each Certificate of Amendment is $200.00, as established by the Delaware Division of Corporations fee schedule. The total filing fees for all 14 Certificates of Amendment are $2,800.00.
Payment may be made as follows:
• Electronic filing: Filing fees are payable by credit card at the time of electronic submission through the Delaware Division of Corporations filing portal.
• Physical submission: Filing fees are payable by check made payable to "Delaware Secretary of State," enclosed with the filed Certificate of Amendment.
E. Expedited Processing
The Delaware Division of Corporations offers expedited processing for an additional fee, as follows:
• 24-hour expedited service: Additional fee of $50.00 per filing.
• Same-day expedited service: Additional fee of $100.00 per filing.
• 1-hour expedited service: Additional fee of $1,000.00 per filing (available for electronic filings only).
Recommendation: We recommend 24-hour expedited processing for all 14 filings. This would result in an additional cost of $50.00 per filing, or $700.00 in total for all 14 filings, bringing the total filing costs (fees plus expedite charges) to:
Same-day service is available if expedited turnaround is critical, but based on the nature of these filings (post-closing record updates), 24-hour processing should be sufficient. Please confirm your preference regarding processing speed.
F. Post-Filing Procedures
Upon acceptance and filing of each Certificate of Amendment by the Delaware Secretary of State, we will take the following steps:
1. Obtain and retain stamped/filed copies of each Certificate of Amendment for Fairwater's corporate records.
2. Update the filing status tracker set forth in Section VIII below to reflect the submission date and confirmation date for each filing.
3. Distribute copies of the filed Certificates of Amendment to Fairwater's in-house legal team and to such other parties as Fairwater may direct.
4. Confirm that the Delaware Division of Corporations online entity database reflects the updated authorized person information for each Target Entity.
V. CERTIFICATES OF AMENDMENT — INDIVIDUAL FILINGS
Set forth below are the 14 individual Certificates of Amendment to the Certificates of Formation, one for each Target Entity, in execution-ready form. Each Certificate of Amendment follows the standard form prescribed by the Delaware Division of Corporations for amendments to Certificates of Formation of limited liability companies. The substantive content is identical across all 14 filings, with the exception of the entity name in each case.
A clean form template (without entity-specific information) is attached hereto as Exhibit A for reference.
V.A. Certificate of Amendment — GMP Fairfield I LLC
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT TO CERTIFICATE OF FORMATION OF A LIMITED LIABILITY COMPANY
1. Name of Limited Liability Company: GMP Fairfield I LLC
2. The Certificate of Formation of GMP Fairfield I LLC, originally filed with the Secretary of State of the State of Delaware, is hereby amended as follows:
The authorized person of the Company is changed from:
Greystone Meridian Capital LLC 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326
to:
Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
3. Registered Agent. The registered agent of the Company in the State of Delaware remains Pemberton Industries, 1209 Orange Street, Wilmington, Delaware 19801. No change to the registered agent is being made by this Certificate of Amendment. In the event that Fairwater Real Estate Investment Trust elects to change the registered agent of the Company at a future date, a separate Certificate of Change of Registered Agent will be filed at that time.
4. Effective Date. This Certificate of Amendment shall be effective upon filing with the Secretary of State of the State of Delaware.
Note to Fairwater: If retroactive effectiveness to June 6, 2024 is desired, this provision will be modified accordingly, subject to discussion regarding Delaware statutory requirements for amendment effective dates.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment as of the date set forth below.
GMP FAIRFIELD I LLC
By: Fairwater Real Estate Investment Trust,
its Sole Member
By: ________
Name: Marcus Devereaux
Title: Executive Vice President, Acquisitions
Date: ________
V.B. Certificate of Amendment — GMP Fairfield II LLC
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT TO CERTIFICATE OF FORMATION OF A LIMITED LIABILITY COMPANY
1. Name of Limited Liability Company: GMP Fairfield II LLC
2. The Certificate of Formation of GMP Fairfield II LLC, originally filed with the Secretary of State of the State of Delaware, is hereby amended as follows:
The authorized person of the Company is changed from:
Greystone Meridian Capital LLC 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326
to:
Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
3. Registered Agent. The registered agent of the Company in the State of Delaware remains Pemberton Industries, 1209 Orange Street, Wilmington, Delaware 19801. No change to the registered agent is being made by this Certificate of Amendment.
4. Effective Date. This Certificate of Amendment shall be effective upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment as of the date set forth below.
GMP FAIRFIELD II LLC
By: Fairwater Real Estate Investment Trust,
its Sole Member
By: ________
Name: Marcus Devereaux
Title: Executive Vice President, Acquisitions
Date: ________
V.C. Certificate of Amendment — GMP Westlake LLC
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT TO CERTIFICATE OF FORMATION OF A LIMITED LIABILITY COMPANY
1. Name of Limited Liability Company: GMP Westlake LLC
2. The Certificate of Formation of GMP Westlake LLC, originally filed with the Secretary of State of the State of Delaware, is hereby amended as follows:
The authorized person of the Company is changed from:
Greystone Meridian Capital LLC 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326
to:
Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
3. Registered Agent. The registered agent of the Company in the State of Delaware remains Pemberton Industries, 1209 Orange Street, Wilmington, Delaware 19801. No change to the registered agent is being made by this Certificate of Amendment.
4. Effective Date. This Certificate of Amendment shall be effective upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment as of the date set forth below.
GMP WESTLAKE LLC
By: Fairwater Real Estate Investment Trust,
its Sole Member
By: ________
Name: Marcus Devereaux
Title: Executive Vice President, Acquisitions
Date: ________
V.D. Certificate of Amendment — GMP Katy LLC
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT TO CERTIFICATE OF FORMATION OF A LIMITED LIABILITY COMPANY
1. Name of Limited Liability Company: GMP Katy LLC
2. The Certificate of Formation of GMP Katy LLC, originally filed with the Secretary of State of the State of Delaware, is hereby amended as follows:
The authorized person of the Company is changed from:
Greystone Meridian Capital LLC 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326
to:
Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
3. Registered Agent. The registered agent of the Company in the State of Delaware remains Pemberton Industries, 1209 Orange Street, Wilmington, Delaware 19801. No change to the registered agent is being made by this Certificate of Amendment.
4. Effective Date. This Certificate of Amendment shall be effective upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment as of the date set forth below.
GMP KATY LLC
By: Fairwater Real Estate Investment Trust,
its Sole Member
By: ________
Name: Marcus Devereaux
Title: Executive Vice President, Acquisitions
Date: ________
V.E. Certificate of Amendment — GMP Alliance LLC
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT TO CERTIFICATE OF FORMATION OF A LIMITED LIABILITY COMPANY
1. Name of Limited Liability Company: GMP Alliance LLC
2. The Certificate of Formation of GMP Alliance LLC, originally filed with the Secretary of State of the State of Delaware, is hereby amended as follows:
The authorized person of the Company is changed from:
Greystone Meridian Capital LLC 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326
to:
Fairwater Real Estate Investment Trust 7200 Chesapeake Parkway, Suite 1100 Columbia, Maryland 21044
3. Registered Agent. The registered agent of the Company in the State of Delaware remains Pemberton Industries, 1209 Orange Street, Wilmington, Delaware 19801. No change to the registered agent is being made by this Certificate of Amendment.
4. Effective Date. This Certificate of Amendment shall be effective upon filing with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment as of the date set forth below.
GMP ALLIANCE LLC
By: Fairwater Real Estate Investment Trust,
its Sole Member