SECRETARY'S CERTIFICATE OF FAIRWATER REAL ESTATE INVESTMENT TRUST
Delivered Pursuant to Section 7(m) of the Amended and Restated Equity Distribution Agreement dated as of July 18, 2025
among
Fairwater Real Estate Investment Trust
Fairwater Operating Partnership, L.P.
Pemberton Zanthor & Co.
Clarendon Securities LLC
Veltrano Capital Partners LLC
(the "Equity Distribution Agreement")
The undersigned, Jonathan Delacroix, hereby certifies that he is the duly elected and acting Executive Vice President, General Counsel and Secretary of Fairwater Real Estate Investment Trust, a real estate investment trust organized under the laws of the State of Maryland (the "Company" or "FREIT"), with its principal executive offices located at 7200 Chesapeake Centre Drive, Suite 400, Annapolis, Maryland 21401, and in such capacity is authorized to execute and deliver this Secretary's Certificate (this "Certificate") on behalf of the Company.
This Certificate is delivered in connection with and pursuant to the Amended and Restated Equity Distribution Agreement, dated as of July 18, 2025 (the "Equity Distribution Agreement"), among the Company, Fairwater Operating Partnership, L.P., a Delaware limited partnership and the operating partnership through which the Company conducts substantially all of its business (the "Operating Partnership"), Pemberton Zanthor & Co., as lead agent, Clarendon Securities LLC, and Veltrano Capital Partners LLC (each, an "Agent" and collectively, the "Agents"), providing for the offer and sale from time to time of common shares of beneficial interest, par value $0.01 per share (the "Common Shares"), of the Company having an aggregate offering price of up to $500,000,000 through an at-the-market equity offering program (the "ATM Program").
This Certificate is further delivered in connection with the universal shelf registration statement on Form S-3 (Registration No. 333-282917) (together with all amendments thereto, the "Registration Statement") filed by the Company and the Operating Partnership, as co-registrants, with the Securities and Exchange Commission (the "SEC") on July 18, 2025, registering the offering and sale of securities of the Company and the Operating Partnership having an aggregate initial offering price of up to $2,000,000,000, including Common Shares, preferred shares of beneficial interest, senior debt securities, subordinated debt securities, depositary shares, warrants, and units, and the related prospectus supplement relating to the ATM Program.
This Certificate is being delivered as a closing deliverable required under Section 7(m) of the Equity Distribution Agreement for initial delivery at the time of the first sale of Common Shares under the ATM Program and is intended to satisfy the conditions precedent set forth in Section 7 of the Equity Distribution Agreement with respect to the certifications contained herein.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Equity Distribution Agreement.
In connection with the foregoing, the undersigned hereby certifies as follows:
SECTION 1: INCUMBENCY AND AUTHORITY OF OFFICERS
1.1 General Incumbency Certification.
The undersigned hereby certifies that each person listed in the incumbency table set forth in Section 1.2 below is, as of the date hereof, a duly elected or appointed officer of the Company, holding the title set forth opposite such person's name in such table, and each such person has been duly authorized by all requisite trust action, including the resolutions adopted by the Board of Trustees of the Company (the "Board of Trustees") referenced in Section 2 hereof, to execute and deliver the Equity Distribution Agreement and each of the documents, instruments, certificates, and agreements contemplated thereby or required to be delivered in connection therewith, on behalf of the Company.
1.2 Incumbency Table.
The following table sets forth the name, title, and specimen signature of each officer of the Company authorized to act on behalf of the Company in connection with the Equity Distribution Agreement, the Registration Statement, the ATM Program, and all related matters:
1.3 Specimen Signatures.
The undersigned hereby certifies that the signature appearing opposite each such person's name in the incumbency table set forth in Section 1.2 above is such person's true and genuine signature. Each such officer identified in Section 1.2 is duly authorized to act on behalf of the Company in connection with the Registration Statement, the Equity Distribution Agreement, the ATM prospectus supplement, and all related filings with the SEC, the New York Stock Exchange (the "NYSE"), and any other regulatory body, and to execute and deliver all certificates, instruments, agreements, documents, and other writings required or contemplated in connection therewith, including, without limitation, any amendments or supplements to the Registration Statement, any prospectus supplements, any free writing prospectuses, any officer's certificates, any compliance certificates, any comfort letter bring-down requests, any legal opinion requests, and any other documents contemplated by or required under the Equity Distribution Agreement.
SECTION 2: BOARD RESOLUTIONS
2.1 Adoption of Resolutions.
The undersigned hereby certifies that attached hereto as Exhibit A is a true, correct, and complete copy of certain resolutions (the "Resolutions") duly adopted by the Board of Trustees of the Company at a duly called and held meeting of the Board of Trustees on June 24, 2025, at which a quorum of trustees was present and acting throughout, in accordance with the Declaration of Trust and Bylaws of the Company and applicable provisions of the Maryland REIT Law (Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland). The meeting was duly noticed and convened in compliance with all applicable requirements of the Company's organizational documents and governing law, and all trustees entitled to vote at such meeting were given proper notice thereof or duly waived notice in accordance with applicable law and the Bylaws of the Company.
2.2 Subject Matter of Resolutions.
The Resolutions authorize, approve, and ratify, among other things, the following actions:
(i) The preparation, execution, filing, and making effective with the SEC of the Registration Statement on Form S-3 (as an automatic shelf registration statement filed pursuant to Rule 462(e) under the Securities Act of 1933, as amended (the "Securities Act"), on account of the Company's status as a "well-known seasoned issuer" within the meaning of Rule 405 under the Securities Act) for the registration of the offering and sale of up to $2,000,000,000 in aggregate initial offering price of securities of the Company and the Operating Partnership, including Common Shares, preferred shares of beneficial interest, par value $0.01 per share, senior debt securities, subordinated debt securities, depositary shares, warrants, and units, together with any and all amendments and supplements thereto (including any pre-effective and post-effective amendments), and the filing of all exhibits thereto and all documents required to be filed in connection therewith;
(ii) The establishment of the ATM Program for the offer and sale from time to time of Common Shares having an aggregate offering price of up to $500,000,000, including pursuant to forward sale transactions, through or to the Agents, as sales agents and/or principals, and the preparation, filing, and delivery of a prospectus supplement relating to the ATM Program;
(iii) The execution and delivery by the Company, and performance by the Company of its obligations under, the Amended and Restated Equity Distribution Agreement with Pemberton Zanthor & Co. (as lead agent), Clarendon Securities LLC, and Veltrano Capital Partners LLC, dated as of July 18, 2025, which amends, restates, and supersedes in its entirety the Equity Distribution Agreement, dated as of November 15, 2019, among the Company, Fairwater Operating Partnership, L.P., and the agents party thereto, as amended by the First Amendment to Equity Distribution Agreement, dated as of August 5, 2022, and the Second Amendment to Equity Distribution Agreement, dated as of March 12, 2023 (collectively, the "Prior Equity Distribution Agreement"), and the termination of the Prior Equity Distribution Agreement effective upon the execution and delivery of the Equity Distribution Agreement;
(iv) The delegation of authority to Margaret Chen-Whitfield, in her capacity as Chief Executive Officer of the Company, Priya Ranganathan, in her capacity as Executive Vice President and Chief Financial Officer of the Company, and Jonathan Delacroix, in his capacity as Executive Vice President, General Counsel and Secretary of the Company (each, an "Authorized Officer"), acting individually or together, to determine and approve the pricing, timing, amount, volume, and other terms and conditions for the issuance, offer, and sale of securities under the Registration Statement and the ATM Program, including Common Shares to be sold directly through the Agents in ordinary at-the-market transactions and Common Shares to be sold pursuant to forward sale agreements with any Agent or its affiliates, and to set minimum sale prices, maximum sale amounts, and such other parameters and limitations as any Authorized Officer may deem appropriate, all without further action by the Board of Trustees; and
(v) The authorization and empowerment of the officers of the Company to execute and deliver all such ancillary documents, certificates, instruments, opinions, and agreements, and to take all such further actions, as any such officer may deem necessary, appropriate, or desirable to carry out the intent and purposes of the foregoing Resolutions and to effectuate the transactions contemplated thereby, including, without limitation, the filing of all necessary or advisable documents and notices with the SEC, the NYSE, the Financial Industry Regulatory Authority, Inc. ("FINRA"), the State Department of Assessments and Taxation of Maryland, and any other applicable federal, state, or foreign regulatory body, self-regulatory organization, or governmental authority.
2.3 Continued Effectiveness.
The undersigned hereby certifies that the Resolutions have not been amended, modified, supplemented, revoked, rescinded, or superseded in any respect since their adoption, and remain in full force and effect as of the date hereof without modification or amendment of any kind. The Resolutions are the only resolutions adopted by the Board of Trustees of the Company (or any committee thereof) relating to the authorization of the Registration Statement, the ATM Program, the Equity Distribution Agreement, and the other matters described in Section 2.2 hereof, and no other action by the Board of Trustees or any committee thereof is required to authorize any of the foregoing matters.
SECTION 3: ORGANIZATIONAL DOCUMENTS
3.1 Declaration of Trust.
The undersigned hereby certifies that attached hereto as Exhibit B is a true, correct, and complete copy of the Declaration of Trust (also known as the Articles of Declaration of Trust) of the Company, as originally filed with the State Department of Assessments and Taxation of Maryland (the "SDAT") on September 12, 2003, as amended and supplemented by (a) Articles of Amendment filed with the SDAT on March 4, 2005, (b) Articles Supplementary filed with the SDAT on June 19, 2007, (c) Articles of Amendment filed with the SDAT on May 21, 2010, (d) Articles Supplementary filed with the SDAT on November 30, 2015, (e) Articles Supplementary filed with the SDAT on April 8, 2019, and (f) Articles of Amendment and Restatement filed with the SDAT on February 14, 2022 (collectively, as so amended, supplemented, and restated, the "Declaration of Trust"), and as currently in full force and effect as of the date hereof. No further amendments, supplements, articles supplementary, articles of amendment, or other modifications to the Declaration of Trust have been authorized, adopted, or filed with the SDAT since the date of the most recent amendment or supplement attached as part of Exhibit B, and no such amendment, supplement, or modification is currently contemplated or pending.
3.2 Bylaws.
The undersigned hereby certifies that attached hereto as Exhibit C is a true, correct, and complete copy of the Amended and Restated Bylaws of the Company (the "Bylaws"), as amended and restated by the Board of Trustees on February 14, 2022, and as further amended by Amendment No. 1, adopted by the Board of Trustees on October 18, 2023, and as currently in full force and effect as of the date hereof. No further amendments, supplements, restatements, or other modifications to the Bylaws have been authorized or adopted since the date of the most recent amendment attached as part of Exhibit C, and no such amendment, supplement, restatement, or modification is currently contemplated or pending.
3.3 Good Standing.
The undersigned hereby certifies that, to the knowledge of the undersigned (after due inquiry), the Company is in good standing as a real estate investment trust under the laws of the State of Maryland, and the Company's status with the SDAT is current and active. The Company's resident agent in the State of Maryland is The Corporation Trust Incorporated, 351 West Camden Street, Baltimore, Maryland 21201, and such registered agent appointment remains in full force and effect as of the date hereof.
SECTION 4: REGISTRATION STATEMENT AND RELATED FILINGS
The undersigned hereby certifies that the Registration Statement on Form S-3 (Registration No. 333-282917) was duly authorized by all necessary trust action on the part of the Company, including by the Resolutions, and was filed with the SEC on July 18, 2025. The Registration Statement was filed as an automatic shelf registration statement pursuant to Rule 462(e) under the Securities Act on account of the Company's status as a "well-known seasoned issuer" within the meaning of Rule 405 under the Securities Act at the time of filing. Pursuant to Rule 462(e), the Registration Statement became effective upon filing with the SEC.
The Company and Fairwater Operating Partnership, L.P. are co-registrants on the Registration Statement. The Company's Central Index Key ("CIK") number assigned by the SEC is 0001387204, and the Company's Standard Industrial Classification ("SIC") Code is 6798 (Real Estate Investment Trusts). The Company's common shares of beneficial interest, par value $0.01 per share, are listed and traded on the NYSE under the ticker symbol "FRWT."
The undersigned further certifies that the Company's prior universal shelf registration statement on Form S-3 (File No. 333-265410), which was declared effective by the SEC on August 1, 2022, will expire by operation of Rule 415(a)(5) under the Securities Act on August 1, 2025, and the Registration Statement referenced herein was filed, in part, to replace such expiring shelf registration statement and to continue the Company's access to the capital markets on a registered basis.
SECTION 5: NO CONFLICTS; DUE AUTHORIZATION
The undersigned hereby certifies that, to the knowledge of the undersigned (after due inquiry), the execution and delivery by the Company of the Equity Distribution Agreement and the consummation of the transactions contemplated thereby, including, without limitation, the issuance, offer, and sale of Common Shares from time to time pursuant to the ATM Program (including any forward sale transactions), have been duly authorized by all necessary trust action on the part of the Company, including the Resolutions adopted by the Board of Trustees and the authority delegated to the Authorized Officers pursuant thereto, and no further approval, authorization, consent, or other action by the Board of Trustees, any committee thereof, or the shareholders of the Company is required in connection therewith (except for such approvals and determinations as have been delegated to the Authorized Officers pursuant to the Resolutions).
The undersigned further certifies that, to the knowledge of the undersigned (after due inquiry), the execution, delivery, and performance by the Company of the Equity Distribution Agreement and the consummation of the transactions contemplated thereby, including the issuance, offer, and sale of Common Shares pursuant to the ATM Program, do not and will not (a) conflict with, violate, or result in a breach of any provision of the Declaration of Trust or Bylaws of the Company, (b) conflict with, violate, or result in a breach of, or constitute a default (with or without the giving of notice or the lapse of time, or both) under, any material agreement, instrument, mortgage, deed of trust, indenture, lease, license, or other obligation to which the Company is a party or by which the Company or any of its properties or assets may be bound, of which the undersigned is aware after due inquiry, or (c) result in the creation or imposition of any lien, charge, pledge, security interest, or encumbrance on any property or assets of the Company.
SECTION 6: ADDITIONAL CERTIFICATIONS
The undersigned hereby further certifies as follows:
(a) To the knowledge of the undersigned (after due inquiry), no stop order suspending the effectiveness of the Registration Statement has been issued by the SEC, and no proceedings for that purpose have been instituted by the SEC, are pending before the SEC, or, to the knowledge of the undersigned, are contemplated or threatened by the SEC. The undersigned is not aware of any notice or communication from the SEC indicating that the SEC is considering or has determined to suspend the effectiveness of the Registration Statement or to institute proceedings with respect thereto.
(b) To the knowledge of the undersigned (after due inquiry), the Company's Common Shares continue to be duly listed and admitted for trading on the NYSE, and no proceedings have been instituted, are pending, or, to the knowledge of the undersigned, are contemplated or threatened to revoke, suspend, or terminate such listing. The Company is in compliance, in all material respects, with all applicable listing requirements of the NYSE with respect to the Common Shares.
SECTION 7: RELIANCE
This Certificate is being furnished and delivered to Pemberton Zanthor & Co., Clarendon Securities LLC, and Veltrano Capital Partners LLC, as the Agents under the Equity Distribution Agreement, and to their counsel, Dunmore Caldwell LLP, and each of the foregoing persons and entities may rely upon the certifications, representations, and statements contained in this Certificate in connection with the matters described herein and in the Equity Distribution Agreement, including in connection with the initial sale of Common Shares under the ATM Program and any subsequent sales thereof.
In addition, Calderwood & Harkness LLP, as counsel to the Company, may rely upon the certifications, representations, and statements contained in this Certificate in connection with the legal opinions, negative assurance letters, and other deliverables being rendered by Calderwood & Harkness LLP in connection with the Registration Statement, the Equity Distribution Agreement, the ATM Program, and the transactions contemplated thereby.
The undersigned acknowledges that this Certificate and the certifications, representations, and statements contained herein are material inducements to the Agents' agreement to enter into and perform their obligations under the Equity Distribution Agreement and to act as agents for the offer and sale of Common Shares under the ATM Program.
SECTION 8: GOVERNING LAW
This Certificate shall be governed by, and construed and interpreted in accordance with, (a) the laws of the State of Maryland, without regard to any conflict of laws principles that would result in the application of the laws of another jurisdiction, with respect to all matters relating to the organization, existence, qualification, power, and authority of the Company as a Maryland real estate investment trust, the Declaration of Trust, the Bylaws, and the actions of the Board of Trustees, and (b) the laws of the State of New York, without regard to any conflict of laws principles that would result in the application of the laws of another jurisdiction (other than Section 5-1401 of the New York General Obligations Law), with respect to all matters relating to the Equity Distribution Agreement and the transactions contemplated thereby.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has duly executed this Secretary's Certificate as of July 18, 2025.
FAIRWATER REAL ESTATE INVESTMENT TRUST
By: ________
Name: Jonathan Delacroix
Title: Executive Vice President, General Counsel and Secretary
COUNTER-CERTIFICATION
The undersigned, Margaret Chen-Whitfield, hereby certifies that she is the duly elected and acting Chief Executive Officer and Chairperson of the Board of Trustees of Fairwater Real Estate Investment Trust, a Maryland real estate investment trust (the "Company"). The undersigned further certifies that Jonathan Delacroix is the duly elected and acting Executive Vice President, General Counsel and Secretary of the Company and that the signature appearing above on this Secretary's Certificate is his true and genuine signature. Jonathan Delacroix has been duly authorized by the Board of Trustees of the Company to execute and deliver this Secretary's Certificate on behalf of the Company and to make the certifications, representations, and statements contained herein.
By: ________
Name: Margaret Chen-Whitfield
Title: Chief Executive Officer and Chairperson of the Board of Trustees
Date: ________
EXHIBIT A
RESOLUTIONS OF THE BOARD OF TRUSTEES
OF
FAIRWATER REAL ESTATE INVESTMENT TRUST
Adopted June 24, 2025
[Attached hereto]
The attached resolutions are the Resolutions referenced in Section 2 of this Secretary's Certificate, duly adopted by the Board of Trustees of Fairwater Real Estate Investment Trust at a meeting duly called and held on June 24, 2025, at which a quorum was present and acting throughout, authorizing and approving, among other things, (i) the preparation, execution, and filing with the SEC of the Registration Statement on Form S-3, (ii) the establishment of the ATM Program for up to $500,000,000 in Common Shares, (iii) the execution and delivery of the Amended and Restated Equity Distribution Agreement with the Agents, (iv) the delegation of authority to certain officers to determine pricing, timing, amount, and other terms and conditions for the issuance and sale of securities under the Registration Statement and the ATM Program, and (v) the authorization of the officers of the Company to execute and deliver all ancillary documents and to take all actions necessary or desirable in connection with the foregoing.
EXHIBIT B
DECLARATION OF TRUST
(ARTICLES OF DECLARATION OF TRUST)
OF
FAIRWATER REAL ESTATE INVESTMENT TRUST
As filed with the State Department of Assessments and Taxation of Maryland, as amended and supplemented through the date of this Certificate
[Attached hereto]
The attached document is the Declaration of Trust (Articles of Declaration of Trust) of Fairwater Real Estate Investment Trust, as originally filed with the State Department of Assessments and Taxation of Maryland on September 12, 2003, as amended, supplemented, and restated from time to time, and as currently in full force and effect as of the date of this Secretary's Certificate. This Exhibit B includes the Articles of Amendment and Restatement filed on February 14, 2022, and all prior articles of amendment and articles supplementary, which together comprise the complete Declaration of Trust as currently in effect.
EXHIBIT C
AMENDED AND RESTATED BYLAWS
OF
FAIRWATER REAL ESTATE INVESTMENT TRUST
As in effect as of the date of this Certificate
[Attached hereto]
The attached document is the Amended and Restated Bylaws of Fairwater Real Estate Investment Trust, as amended and restated by the Board of Trustees on February 14, 2022, and as further amended by Amendment No. 1, adopted by the Board of Trustees on October 18, 2023, and as currently in full force and effect as of the date of this Secretary's Certificate. No further amendments, supplements, or modifications to the Bylaws have been adopted or are pending as of the date hereof.
| Name | Title | Specimen Signature |
| Margaret Chen-Whitfield | Chief Executive Officer and Chairperson of the Board of Trustees | ________ |
| David Kowalczyk | President and Chief Operating Officer | ________ |
| Priya Ranganathan | Executive Vice President and Chief Financial Officer | ________ |
| Jonathan Delacroix | Executive Vice President, General Counsel and Secretary | ________ |
| Sandra Ellerby | Senior Vice President, Capital Markets and Treasurer | ________ |