1036-00004 · Client 1036 · Transaction Documents/Exhibits

psa-exhibit-o-form-firpta-certificate.docx DOCUMENT Real Estate

158 / 172 ← → ✕

EXHIBIT O

FORM OF CERTIFICATE OF NON-FOREIGN STATUS

(FIRPTA CERTIFICATE)

This Exhibit O (this "Certificate") is attached to and forms an integral part of that certain Purchase and Sale Agreement, dated as of February 28, 2024 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Agreement"), by and between Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership ("Seller"), and Fairwater Real Estate Investment Trust, a Maryland real estate investment trust ("Buyer"). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.

RECITALS

WHEREAS, Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"), provides that a transferee (as defined therein) of a United States real property interest must withhold tax if the transferor is a "foreign person," as that term is defined in Section 1445(f)(3) of the Code; and

WHEREAS, to inform Buyer that withholding of tax is not required upon the disposition of United States real property interests by Seller pursuant to the Agreement, the undersigned hereby certifies the following on behalf of Seller:

CERTIFICATIONS

Section 1. Identity of Transferor.

1. The transferor's full legal name is Greystone Meridian Partners Fund III, L.P.

2. The transferor is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware.

3. The transferor's principal office address is:

Greystone Meridian Partners Fund III, L.P. 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326

4. The transferor's United States Employer Identification Number ("EIN") is: 83-1647205.

Section 2. Non-Foreign Person Status.

1. Seller hereby certifies that it is not a "foreign person" as that term is defined in Section 1445(f)(3) of the Code. For purposes of this Certificate, a "foreign person" means a nonresident alien individual, a foreign corporation that has not made an election under Section 897(i) of the Code to be treated as a domestic corporation, a foreign partnership, a foreign trust, or a foreign estate, each as defined in the applicable provisions of the Code.

2. Seller further certifies that it is not a "foreign corporation," a "foreign partnership," a "foreign trust," or a "foreign estate," as those terms are defined in Section 7701(a)(5) and Section 7701(a)(31) of the Code and the Treasury Regulations promulgated thereunder.

3. Seller affirmatively states that it is a domestic partnership duly formed and validly existing under the laws of the State of Delaware, and that it is treated as a partnership for United States federal income tax purposes.

Section 3. General Partner Information.

1. Seller's sole general partner is Greystone Meridian Capital LLC, a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware (the "General Partner").

2. The General Partner's principal office address is:

Greystone Meridian Capital LLC 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326

3. The General Partner's EIN is: 83-1520984.

4. The General Partner hereby certifies that it is not a foreign person, is not a disregarded entity (within the meaning of Treasury Regulations Section 1.1445-2(b)(2)(iii)) whose sole owner is a foreign person, and is not otherwise a foreign corporation, foreign partnership, foreign trust, or foreign estate as those terms are defined in the Code. The General Partner is a domestic limited liability company classified as a partnership (or, if it has a single owner, as a disregarded entity owned by a domestic person) for United States federal income tax purposes.

Section 4. Taxpayer Identification.

1. Seller's United States taxpayer identification number is its EIN: 83-1647205.

2. Seller confirms that it has a valid United States taxpayer identification number that has been duly issued by the Internal Revenue Service and that such number has not been revoked or otherwise rendered invalid.

Section 5. Description of Transaction.

1. This Certificate is delivered in connection with the Agreement, dated as of February 28, 2024, between Seller and Buyer.

2. Pursuant to the Agreement, Seller is disposing of its interests in certain entities that hold United States real property interests (within the meaning of Section 897(c) of the Code), specifically, one hundred percent (100%) of the membership interests in each of the following fourteen (14) Delaware limited liability companies (collectively, the "Target Entities"):

3. Each of the Target Entities is a Delaware limited liability company that directly or indirectly holds United States real property interests. The disposition of 100% of the membership interests in each Target Entity constitutes the disposition of a United States real property interest within the meaning of Section 897(a) of the Code.

Section 6. Additional Representations.

1. Seller understands that this Certificate may be disclosed to the Internal Revenue Service by Buyer or any other withholding agent and that any false statement contained herein could be punished by fine, imprisonment, or both, as provided by the criminal penalty provisions of the Code, including but not limited to Section 7206 thereof, and other applicable federal law.

2. Seller understands and acknowledges that Buyer is relying on this Certificate in determining whether withholding is required under Section 1445 of the Code in connection with the transactions contemplated by the Agreement. Seller agrees to indemnify and hold harmless Buyer from and against any and all liability, loss, cost, damage, or expense (including reasonable attorneys' fees and disbursements) that Buyer may incur as a result of any inaccuracy in, or breach of, the certifications, representations, and statements contained in this Certificate.

3. Seller represents and warrants that it has not been a "foreign person," as that term is defined in Section 1445(f)(3) of the Code, at any time during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code (i.e., the shorter of (a) the five-year period ending on the date of the disposition of the United States real property interests contemplated by the Agreement or (b) the period during which Seller held such interests).

Section 7. Authority.

1. The undersigned has full power and authority to execute and deliver this Certificate on behalf of Seller. No further action, consent, or approval of any other person or entity is required in connection with the execution and delivery of this Certificate.

2. This Certificate is executed by Greystone Meridian Capital LLC, a Delaware limited liability company, acting in its capacity as the sole general partner of Seller, and the undersigned is a duly authorized representative of the General Partner.

3. The authorized signatory executing this Certificate on behalf of the General Partner is Victor Lansdell, Co-Founder & Managing Partner of Greystone Meridian Capital LLC, who has been duly authorized by all requisite action of the General Partner to execute and deliver this Certificate.

Section 8. Governing Law and Miscellaneous.

1. Statutory Basis. This Certificate is delivered pursuant to Section 1445(b)(2) of the Code and Treasury Regulations Section 1.1445-2(b)(2), which provide that withholding under Section 1445(a) of the Code is not required with respect to the transfer of a United States real property interest by a transferor that furnishes an affidavit to the transferee stating, under penalty of perjury, the transferor's name, United States taxpayer identification number, and home address (or, in the case of an entity, its office address), and that the transferor is not a foreign person.

2. Duty to Update. Seller agrees to inform Buyer promptly in writing if any of the certifications, representations, or statements contained in this Certificate become inaccurate, incomplete, or misleading in any material respect prior to the closing of the transactions contemplated by the Agreement (the "Closing"). In the event that any such certification, representation, or statement becomes inaccurate prior to the Closing, Seller shall deliver to Buyer an amended or restated Certificate reflecting the accurate facts and circumstances as of the date of such amendment or restatement.

3. Severability. If any provision of this Certificate shall be held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Certificate shall not in any way be affected or impaired thereby, and such invalid, illegal, or unenforceable provision shall be reformed to the minimum extent necessary to make such provision valid, legal, and enforceable while preserving the intent of the parties as reflected herein.

4. Reliance. This Certificate may be relied upon by Buyer and its successors and assigns in connection with the transactions contemplated by the Agreement. Seller acknowledges that Buyer may furnish a copy of this Certificate to the Internal Revenue Service, any title insurance company, any escrow agent, and any other party reasonably requesting the same in connection with the Closing.

5. Governing Law. This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions that would cause the application of the laws of any other jurisdiction.

UNDER PENALTY OF PERJURY, I DECLARE THAT I HAVE EXAMINED THIS CERTIFICATE AND, TO THE BEST OF MY KNOWLEDGE AND BELIEF, IT IS TRUE, CORRECT, AND COMPLETE, AND I FURTHER DECLARE THAT I HAVE AUTHORITY TO SIGN THIS CERTIFICATE ON BEHALF OF SELLER.

SIGNATURE

SELLER:

GREYSTONE MERIDIAN PARTNERS FUND III, L.P., a Delaware limited partnership

By: Greystone Meridian Capital LLC,

a Delaware limited liability company, its sole General Partner

By: ________

Name: Victor Lansdell

Title: Co-Founder & Managing Partner

Date: _____, 2024

NOTARY ACKNOWLEDGMENT

STATE OF GEORGIA

COUNTY OF FULTON

Before me, the undersigned, a Notary Public in and for said County and State, on this _ day of ____, 2024, personally appeared Victor Lansdell, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his capacity as Co-Founder & Managing Partner of Greystone Meridian Capital LLC, a Delaware limited liability company, the sole general partner of Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership, and that by his signature on the instrument, the entity upon behalf of which the person acted executed the instrument for the purposes and consideration therein expressed.

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.

________________________________________

Notary Public

Printed Name: ________

My Commission Expires: ________

[NOTARIAL SEAL]

This Certificate of Non-Foreign Status is provided as Exhibit O to the Purchase and Sale Agreement dated February 28, 2024, between Greystone Meridian Partners Fund III, L.P. and Fairwater Real Estate Investment Trust. This form is intended to satisfy the requirements of Section 1445(b)(2) of the Internal Revenue Code and Treasury Regulations Section 1.1445-2(b). It is not intended to constitute tax advice. The parties are encouraged to consult with their respective tax advisors regarding the applicability of FIRPTA and related withholding obligations.

No.	Entity Name	EIN
1.	GMP Fairfield I LLC	84-2310561
2.	GMP Fairfield II LLC	84-2310578
3.	GMP Westlake LLC	84-2415693
4.	GMP Katy LLC	84-2415710
5.	GMP Alliance LLC	84-2415728
6.	GMP Lakeland LLC	84-2527834
7.	GMP Southport LLC	84-2527849
8.	GMP Murfreesboro LLC	84-2527856
9.	GMP Buckhead LLC	84-2639901
10.	GMP SouthPark LLC	84-2639918
11.	GMP Cool Springs LLC	84-2639925
12.	GMP Brickell LLC	84-2639932
13.	GMP Peachtree LLC	84-2741063
14.	GMP Mount Juliet LLC	84-2741070

EXHIBIT O
FORM OF CERTIFICATE OF NON-FOREIGN STATUS
(FIRPTA CERTIFICATE)
This Exhibit O (this "Certificate") is attached to and forms an integral part of that certain Purchase and Sale Agreement, dated as of February 28, 2024 (as the same may be amended, restated, supplemented, or otherwise modified from time to time, the "Agreement"), by and between Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership ("Seller"), and Fairwater Real Estate Investment Trust, a Maryland real estate investment trust ("Buyer"). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Agreement.
RECITALS
WHEREAS, Section 1445 of the Internal Revenue Code of 1986, as amended (the "Code"), provides that a transferee (as defined therein) of a United States real property interest must withhold tax if the transferor is a "foreign person," as that term is defined in Section 1445(f)(3) of the Code; and
WHEREAS, to inform Buyer that withholding of tax is not required upon the disposition of United States real property interests by Seller pursuant to the Agreement, the undersigned hereby certifies the following on behalf of Seller:
CERTIFICATIONS
Section 1. Identity of Transferor.
1.  The transferor's full legal name is Greystone Meridian Partners Fund III, L.P.
2.  The transferor is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware.
3.  The transferor's principal office address is:
Greystone Meridian Partners Fund III, L.P. 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326
4.  The transferor's United States Employer Identification Number ("EIN") is: 83-1647205.
Section 2. Non-Foreign Person Status.
1.  Seller hereby certifies that it is not a "foreign person" as that term is defined in Section 1445(f)(3) of the Code. For purposes of this Certificate, a "foreign person" means a nonresident alien individual, a foreign corporation that has not made an election under Section 897(i) of the Code to be treated as a domestic corporation, a foreign partnership, a foreign trust, or a foreign estate, each as defined in the applicable provisions of the Code.
2.  Seller further certifies that it is not a "foreign corporation," a "foreign partnership," a "foreign trust," or a "foreign estate," as those terms are defined in Section 7701(a)(5) and Section 7701(a)(31) of the Code and the Treasury Regulations promulgated thereunder.
3.  Seller affirmatively states that it is a domestic partnership duly formed and validly existing under the laws of the State of Delaware, and that it is treated as a partnership for United States federal income tax purposes.
Section 3. General Partner Information.
1.  Seller's sole general partner is Greystone Meridian Capital LLC, a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware (the "General Partner").
2.  The General Partner's principal office address is:
Greystone Meridian Capital LLC 3300 Peachtree Road NE, Suite 2200 Atlanta, Georgia 30326
3.  The General Partner's EIN is: 83-1520984.
4.  The General Partner hereby certifies that it is not a foreign person, is not a disregarded entity (within the meaning of Treasury Regulations Section 1.1445-2(b)(2)(iii)) whose sole owner is a foreign person, and is not otherwise a foreign corporation, foreign partnership, foreign trust, or foreign estate as those terms are defined in the Code. The General Partner is a domestic limited liability company classified as a partnership (or, if it has a single owner, as a disregarded entity owned by a domestic person) for United States federal income tax purposes.
Section 4. Taxpayer Identification.
1.  Seller's United States taxpayer identification number is its EIN: 83-1647205.
2.  Seller confirms that it has a valid United States taxpayer identification number that has been duly issued by the Internal Revenue Service and that such number has not been revoked or otherwise rendered invalid.
Section 5. Description of Transaction.
1.  This Certificate is delivered in connection with the Agreement, dated as of February 28, 2024, between Seller and Buyer.
2.  Pursuant to the Agreement, Seller is disposing of its interests in certain entities that hold United States real property interests (within the meaning of Section 897(c) of the Code), specifically, one hundred percent (100%) of the membership interests in each of the following fourteen (14) Delaware limited liability companies (collectively, the "Target Entities"):
3.  Each of the Target Entities is a Delaware limited liability company that directly or indirectly holds United States real property interests. The disposition of 100% of the membership interests in each Target Entity constitutes the disposition of a United States real property interest within the meaning of Section 897(a) of the Code.
Section 6. Additional Representations.
1.  Seller understands that this Certificate may be disclosed to the Internal Revenue Service by Buyer or any other withholding agent and that any false statement contained herein could be punished by fine, imprisonment, or both, as provided by the criminal penalty provisions of the Code, including but not limited to Section 7206 thereof, and other applicable federal law.
2.  Seller understands and acknowledges that Buyer is relying on this Certificate in determining whether withholding is required under Section 1445 of the Code in connection with the transactions contemplated by the Agreement. Seller agrees to indemnify and hold harmless Buyer from and against any and all liability, loss, cost, damage, or expense (including reasonable attorneys' fees and disbursements) that Buyer may incur as a result of any inaccuracy in, or breach of, the certifications, representations, and statements contained in this Certificate.
3.  Seller represents and warrants that it has not been a "foreign person," as that term is defined in Section 1445(f)(3) of the Code, at any time during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code (i.e., the shorter of (a) the five-year period ending on the date of the disposition of the United States real property interests contemplated by the Agreement or (b) the period during which Seller held such interests).
Section 7. Authority.
1.  The undersigned has full power and authority to execute and deliver this Certificate on behalf of Seller. No further action, consent, or approval of any other person or entity is required in connection with the execution and delivery of this Certificate.
2.  This Certificate is executed by Greystone Meridian Capital LLC, a Delaware limited liability company, acting in its capacity as the sole general partner of Seller, and the undersigned is a duly authorized representative of the General Partner.
3.  The authorized signatory executing this Certificate on behalf of the General Partner is Victor Lansdell, Co-Founder & Managing Partner of Greystone Meridian Capital LLC, who has been duly authorized by all requisite action of the General Partner to execute and deliver this Certificate.
Section 8. Governing Law and Miscellaneous.
1.  Statutory Basis. This Certificate is delivered pursuant to Section 1445(b)(2) of the Code and Treasury Regulations Section 1.1445-2(b)(2), which provide that withholding under Section 1445(a) of the Code is not required with respect to the transfer of a United States real property interest by a transferor that furnishes an affidavit to the transferee stating, under penalty of perjury, the transferor's name, United States taxpayer identification number, and home address (or, in the case of an entity, its office address), and that the transferor is not a foreign person.
2.  Duty to Update. Seller agrees to inform Buyer promptly in writing if any of the certifications, representations, or statements contained in this Certificate become inaccurate, incomplete, or misleading in any material respect prior to the closing of the transactions contemplated by the Agreement (the "Closing"). In the event that any such certification, representation, or statement becomes inaccurate prior to the Closing, Seller shall deliver to Buyer an amended or restated Certificate reflecting the accurate facts and circumstances as of the date of such amendment or restatement.
3.  Severability. If any provision of this Certificate shall be held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions of this Certificate shall not in any way be affected or impaired thereby, and such invalid, illegal, or unenforceable provision shall be reformed to the minimum extent necessary to make such provision valid, legal, and enforceable while preserving the intent of the parties as reflected herein.
4.  Reliance. This Certificate may be relied upon by Buyer and its successors and assigns in connection with the transactions contemplated by the Agreement. Seller acknowledges that Buyer may furnish a copy of this Certificate to the Internal Revenue Service, any title insurance company, any escrow agent, and any other party reasonably requesting the same in connection with the Closing.
5.  Governing Law. This Certificate shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions that would cause the application of the laws of any other jurisdiction.
UNDER PENALTY OF PERJURY, I DECLARE THAT I HAVE EXAMINED THIS CERTIFICATE AND, TO THE BEST OF MY KNOWLEDGE AND BELIEF, IT IS TRUE, CORRECT, AND COMPLETE, AND I FURTHER DECLARE THAT I HAVE AUTHORITY TO SIGN THIS CERTIFICATE ON BEHALF OF SELLER.
SIGNATURE
SELLER:
GREYSTONE MERIDIAN PARTNERS FUND III, L.P., a Delaware limited partnership
By: Greystone Meridian Capital LLC,
a Delaware limited liability company, its sole General Partner
By: ________
Name: Victor Lansdell
Title: Co-Founder & Managing Partner
Date: _____, 2024
NOTARY ACKNOWLEDGMENT
STATE OF GEORGIA
COUNTY OF FULTON
Before me, the undersigned, a Notary Public in and for said County and State, on this _ day of ____, 2024, personally appeared Victor Lansdell, known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument, and acknowledged to me that he executed the same in his capacity as Co-Founder & Managing Partner of Greystone Meridian Capital LLC, a Delaware limited liability company, the sole general partner of Greystone Meridian Partners Fund III, L.P., a Delaware limited partnership, and that by his signature on the instrument, the entity upon behalf of which the person acted executed the instrument for the purposes and consideration therein expressed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.
________________________________________
Notary Public
Printed Name: ________
My Commission Expires: ________
[NOTARIAL SEAL]
This Certificate of Non-Foreign Status is provided as Exhibit O to the Purchase and Sale Agreement dated February 28, 2024, between Greystone Meridian Partners Fund III, L.P. and Fairwater Real Estate Investment Trust. This form is intended to satisfy the requirements of Section 1445(b)(2) of the Internal Revenue Code and Treasury Regulations Section 1.1445-2(b). It is not intended to constitute tax advice. The parties are encouraged to consult with their respective tax advisors regarding the applicability of FIRPTA and related withholding obligations.
No. | Entity Name | EIN
1. | GMP Fairfield I LLC | 84-2310561
2. | GMP Fairfield II LLC | 84-2310578
3. | GMP Westlake LLC | 84-2415693
4. | GMP Katy LLC | 84-2415710
5. | GMP Alliance LLC | 84-2415728
6. | GMP Lakeland LLC | 84-2527834
7. | GMP Southport LLC | 84-2527849
8. | GMP Murfreesboro LLC | 84-2527856
9. | GMP Buckhead LLC | 84-2639901
10. | GMP SouthPark LLC | 84-2639918
11. | GMP Cool Springs LLC | 84-2639925
12. | GMP Brickell LLC | 84-2639932
13. | GMP Peachtree LLC | 84-2741063
14. | GMP Mount Juliet LLC | 84-2741070

EXHIBIT O

FORM OF CERTIFICATE OF NON-FOREIGN STATUS

RECITALS

CERTIFICATIONS

SIGNATURE

SELLER:

NOTARY ACKNOWLEDGMENT

STATE OF GEORGIA

COUNTY OF FULTON

Record

Parties

Dates

Amounts