RESOLUTIONS OF THE BOARD OF TRUSTEES OF FAIRWATER REAL ESTATE INVESTMENT TRUST
Adopted by Unanimous Written Consent
[_], 2025
Prepared by Calderwood & Harkness LLP 1750 K Street, N.W., Suite 800 Washington, D.C. 20006 C&H Matter Number 1036-00002
PREAMBLE
The undersigned, constituting all of the members of the Board of Trustees (the "Board") of Fairwater Real Estate Investment Trust, a Maryland real estate investment trust (the "Company" or "FREIT"), organized in 2003 under the laws of the State of Maryland pursuant to Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland (the "Maryland REIT Law"), with its principal executive office located at 7200 Chesapeake Centre Drive, Suite 400, Annapolis, Maryland 21401, acting pursuant to the Amended and Restated Declaration of Trust of the Company, dated as of June 12, 2003, as amended and supplemented from time to time (the "Declaration of Trust"), the Amended and Restated Bylaws of the Company, as amended and supplemented from time to time (the "Bylaws"), and the applicable provisions of the Maryland REIT Law, do hereby adopt the following resolutions by unanimous written consent without a meeting, effective as of the date first written above. Each of the undersigned trustees acknowledges receipt of adequate notice and information regarding the matters set forth herein and confirms that such trustee has had a full and fair opportunity to review, consider, and discuss the transactions and actions contemplated by these resolutions.
RECITALS
A. Prior Shelf Registration Statement. WHEREAS, the Company previously filed a universal shelf registration statement on Form S-3 (File No. 333-265410) with the Securities and Exchange Commission (the "SEC"), which was declared effective on August 1, 2022 (the "Prior Shelf Registration Statement"); and WHEREAS, under the Prior Shelf Registration Statement, the Company has issued approximately $475,000,000 in aggregate principal or offering amount of securities, including (i) approximately $200,000,000 in common shares of beneficial interest through the Company's at-the-market equity offering program, (ii) approximately $175,000,000 in common shares of beneficial interest through an underwritten follow-on public offering completed in October 2023, and (iii) $100,000,000 in 6.50% Series A Cumulative Redeemable Preferred Shares of beneficial interest issued in a registered direct offering completed in June 2024; and
B. Expiration of Prior Shelf Registration Statement. WHEREAS, the Prior Shelf Registration Statement will expire by operation of Rule 415(a)(5) under the Securities Act of 1933, as amended (the "Securities Act"), on August 1, 2025, being the third anniversary of the date on which the Prior Shelf Registration Statement was declared effective by the SEC, and upon such expiration the Company will no longer be able to offer or sell securities registered thereunder; and
C. New Shelf Registration Statement. WHEREAS, the Board has determined that it is in the best interests of the Company and its shareholders to file a new universal shelf registration statement on Form S-3 (the "Registration Statement") with the SEC to register up to $2,000,000,000 in aggregate offering amount of securities, including common shares of beneficial interest, par value $0.01 per share ("Common Shares"), preferred shares of beneficial interest, par value $0.01 per share ("Preferred Shares"), in one or more series, senior debt securities, subordinated debt securities, depositary shares representing fractional interests in Preferred Shares, warrants, and units consisting of any combination of the foregoing (collectively, the "Securities"), in order to provide the Company with continued and timely access to the public capital markets and the flexibility to raise capital on favorable terms as opportunities arise in furtherance of the Company's growth strategy, balance sheet management, and general corporate purposes; and WHEREAS, the Registration Statement is to be filed jointly by the Company and Fairwater Operating Partnership, L.P., a Maryland limited partnership (the "Operating Partnership" or "Fairwater OP"), of which the Company serves as the sole general partner, as co-registrants, in connection with the registration of debt securities to be issued by the Operating Partnership and guaranteed by the Company; and
D. WKSI Status. WHEREAS, the Company qualifies as a "well-known seasoned issuer" ("WKSI") as defined in Rule 405 under the Securities Act, having a public float in excess of $700,000,000 (based on an equity market capitalization of approximately $3,819,981,500, calculated based on 134,270,000 Common Shares outstanding as of March 31, 2025, at a closing price per Common Share of $28.45 as reported on the New York Stock Exchange on June 13, 2025), and having timely filed all required reports under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), for the preceding twelve calendar months, and satisfying each of the other conditions for WKSI status set forth in Rule 405 under the Securities Act; and WHEREAS, accordingly, the Registration Statement will constitute an "automatic shelf registration statement" as defined in Rule 405 under the Securities Act and will become effective immediately upon filing with the SEC pursuant to Rule 462(e) under the Securities Act, without review by the staff of the SEC prior to effectiveness; and
E. Existing ATM Program. WHEREAS, the Company maintains an existing at-the-market equity offering program (the "ATM Program") pursuant to an Equity Distribution Agreement dated as of November 15, 2019, as amended by a First Amendment to Equity Distribution Agreement dated as of August 5, 2022 and a Second Amendment to Equity Distribution Agreement dated as of March 12, 2023 (as so amended, the "Existing Equity Distribution Agreement"), by and among the Company, the Operating Partnership, Pemberton Zanthor & Co. ("Pemberton Zanthor"), as lead agent, Clarendon Securities LLC ("Clarendon Securities"), and Veltrano Capital Partners LLC ("Veltrano Capital Partners," and together with Pemberton Zanthor and Clarendon Securities, the "Agents"), as co-agents; and WHEREAS, under the existing ATM Program, the Agents have sold approximately $200,000,000 in aggregate gross sales proceeds of Common Shares on behalf of the Company (of the $400,000,000 maximum aggregate gross sales proceeds of Common Shares authorized for sale thereunder), and the Company desires to replace the existing ATM Program with a new program of increased capacity under the Registration Statement; and
F. New ATM Program. WHEREAS, the Board has determined that it is in the best interests of the Company and its shareholders to establish a new at-the-market equity offering program for up to $500,000,000 in aggregate gross sales proceeds of Common Shares (the "New ATM Program") under the Registration Statement, providing the Company with an efficient, cost-effective mechanism for raising equity capital incrementally and opportunistically in the public markets, and in connection therewith to enter into an Amended and Restated Equity Distribution Agreement (the "Amended and Restated Equity Distribution Agreement") with the Agents, which will amend, restate, and supersede the Existing Equity Distribution Agreement in its entirety; and
G. Engagement of Counsel and Advisors. WHEREAS, the Company has engaged Calderwood & Harkness LLP ("C&H") as outside securities and capital markets counsel to the Company in connection with the preparation and filing of the Registration Statement and the establishment of the New ATM Program, and the Agents have engaged Dunmore Caldwell LLP as agents' counsel in connection with the New ATM Program and the Amended and Restated Equity Distribution Agreement; and
H. Board Determination. WHEREAS, the Board has reviewed and considered the terms and conditions of the proposed transactions described herein, including the filing of the Registration Statement, the establishment of the New ATM Program, the execution and delivery of the Amended and Restated Equity Distribution Agreement, and the delegation of authority to certain officers of the Company in connection therewith, and, after due deliberation and consideration, has determined that the filing of the Registration Statement, the establishment of the New ATM Program, the execution and delivery of the Amended and Restated Equity Distribution Agreement, and the taking of the other actions contemplated by these resolutions are advisable and in the best interests of the Company and its shareholders.
NOW, THEREFORE, BE IT:
RESOLUTION 1 — AUTHORIZATION OF THE UNIVERSAL SHELF REGISTRATION STATEMENT ON FORM S-3
(a) Filing of Registration Statement. RESOLVED, that the officers of the Company be, and each of them hereby is, authorized and directed to prepare, execute, and cause to be filed with the SEC, on behalf of the Company and the Operating Partnership as co-registrants, a Registration Statement on Form S-3 (or any amendment thereto, including any pre-effective or post-effective amendments), together with all exhibits thereto and any prospectus supplements thereto, for the registration under the Securities Act of up to $2,000,000,000 in aggregate offering amount of Securities, consisting of any combination of:
(i) Common Shares of beneficial interest, par value $0.01 per share;
(ii) Preferred Shares of beneficial interest, par value $0.01 per share, in one or more series, with such designations, preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications, and terms and conditions of redemption as may be fixed and determined by the Board or any Authorized Officer (as defined below) in supplemental articles supplementary to the Declaration of Trust at the time of issuance;
(iii) Senior debt securities of the Operating Partnership, which may be guaranteed by the Company pursuant to one or more guarantees, to be issued under one or more senior indentures;
(iv) Subordinated debt securities of the Operating Partnership, which may be guaranteed by the Company pursuant to one or more guarantees, to be issued under one or more subordinated indentures;
(v) Depositary shares, each representing a fractional interest in a Preferred Share deposited with a depositary, to be evidenced by depositary receipts;
(vi) Warrants to purchase Common Shares, Preferred Shares, debt securities, depositary shares, or units, to be issued under one or more warrant agreements; and
(vii) Units consisting of any combination of two or more of the foregoing Securities, in such amounts and combinations as may be determined by the Authorized Officers at the time of issuance;
and that the Registration Statement, together with such exhibits, schedules, prospectus supplements, and other documents as may be required or advisable, shall be in such form and contain such information as the officers executing and filing the same shall approve, the execution thereof to be conclusive evidence of such approval.
(b) WKSI Automatic Shelf Registration Statement. RESOLVED FURTHER, that the Registration Statement shall be prepared and filed as an automatic shelf registration statement in reliance upon the Company's status as a WKSI under Rule 405 of the Securities Act, and that the Registration Statement shall become effective automatically upon filing with the SEC pursuant to Rule 462(e) under the Securities Act without further action by the Board. The officers of the Company are further authorized and directed to pay all applicable SEC filing fees on a pay-as-you-go basis at the time of each takedown offering pursuant to Rule 456(b) and Rule 457(r) under the Securities Act, such that no filing fee shall be required to be paid at the time of the initial filing of the Registration Statement, and that each filing fee payment shall be made in the amount and at the time required by the applicable rules and regulations of the SEC.
(c) Base Prospectus. RESOLVED FURTHER, that the officers of the Company be, and each of them hereby is, authorized and directed to prepare and include in the Registration Statement a base prospectus (the "Base Prospectus") covering all classes of Securities registered thereunder, containing such information as may be required by the Securities Act, the Exchange Act, and the rules and regulations of the SEC thereunder, as well as such information as the officers of the Company, in consultation with C&H, determine to be necessary, appropriate, or advisable, including without limitation:
(i) a description of each class and series of Securities that may be offered under the Registration Statement, including the general terms and provisions thereof;
(ii) risk factor cross-references to the Company's Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, and Current Reports on Form 8-K, and such other risk factors as may be specific to the Securities or the offerings contemplated thereby, all of which are incorporated by reference into the Registration Statement;
(iii) a description of the intended use of proceeds from the sale of Securities, which may include the acquisition, development, and redevelopment of properties, the repayment or refinancing of indebtedness, working capital, and other general corporate purposes;
(iv) a description of the plan of distribution applicable to the Securities, including through underwritten public offerings, at-the-market offerings, negotiated transactions, block trades, or any other method of distribution;
(v) a summary of material United States federal income tax considerations relating to the Company's qualification and taxation as a real estate investment trust under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the "Code"), and the taxation of shareholders with respect to the Securities;
(vi) a description of legal matters, including identification of C&H as counsel passing upon the validity of the Securities; and
(vii) identification of Hargrove & Tillman LLP as the Company's independent registered public accounting firm and the inclusion of such expert disclosures as may be required by the Securities Act and the rules and regulations thereunder.
(d) Target Filing Date. RESOLVED FURTHER, that the target date for the filing of the Registration Statement with the SEC shall be July 18, 2025, and that the officers of the Company are authorized and directed to use commercially reasonable efforts to complete and file the Registration Statement on or prior to such date, and in any event prior to the expiration of the Prior Shelf Registration Statement (File No. 333-265410) on August 1, 2025, so as to ensure continuous access by the Company to the public capital markets; provided, that the officers of the Company, in consultation with C&H, shall have the authority and discretion to adjust the filing date as circumstances may require without further Board approval.
(e) Operating Partnership as Co-Registrant. RESOLVED FURTHER, that the Operating Partnership shall be included as a co-registrant on the Registration Statement in connection with the registration of senior and subordinated debt securities to be issued by the Operating Partnership, which debt securities may be guaranteed by the Company, and that the authorized officers of the Company, acting in their capacity as officers of the general partner of the Operating Partnership, be, and each of them hereby is, authorized and directed to execute the Registration Statement on behalf of the Operating Partnership, and to take all actions and execute all documents necessary or advisable to cause the Operating Partnership to fulfill its obligations as a co-registrant, including the execution and delivery of any indentures, supplemental indentures, guarantees, or other agreements in connection with the issuance of debt securities by the Operating Partnership.
(f) Exhibits and Opinions. RESOLVED FURTHER, that there shall be filed as exhibits to the Registration Statement, or incorporated therein by reference, among other documents, the following:
(i) a legal opinion of Calderwood & Harkness LLP (to be filed as Exhibit 5.1 to the Registration Statement) regarding the valid authorization and issuance of the Securities, including opinions as to the due authorization, valid issuance, and, in the case of Common Shares and Preferred Shares, fully paid and non-assessable status of such Securities, and as to the legal, valid, and binding nature of any debt securities and guarantees to be issued thereunder;
(ii) a tax opinion of Calderwood & Harkness LLP (to be filed as Exhibit 8.1 to the Registration Statement) regarding the Company's qualification as a real estate investment trust under the Code, commencing with the Company's taxable year ended December 31, 2003, and continuing through the date of such opinion, subject to customary qualifications and assumptions;
(iii) the consent of Hargrove & Tillman LLP, the Company's independent registered public accounting firm, to the incorporation by reference of its reports on the Company's consolidated financial statements and the effectiveness of the Company's internal control over financial reporting in the Registration Statement and the use of its name under the caption "Experts" in the Base Prospectus;
(iv) the consent of Calderwood & Harkness LLP to the use of its opinions and the reference to its name under the caption "Legal Matters" in the Base Prospectus; and
(v) such other exhibits, consents, powers of attorney, and other documents as may be required by the Securities Act, the Exchange Act, and the rules and regulations of the SEC thereunder, or as C&H or any filing officer of the Company may determine to be necessary or appropriate.
RESOLUTION 2 — AUTHORIZATION OF THE AT-THE-MARKET EQUITY OFFERING PROGRAM
(a) Establishment of New ATM Program. RESOLVED, that the establishment of the New ATM Program for the offer and sale from time to time of up to $500,000,000 in aggregate gross sales proceeds of Common Shares through at-the-market offerings on the New York Stock Exchange or otherwise, and through forward sale transactions with one or more of the Agents acting as forward purchasers, in each case pursuant to a prospectus supplement to be filed with the SEC under Rule 424(b)(5) under the Securities Act (the "ATM Prospectus Supplement"), be, and the same hereby is, authorized and approved in all respects.
(b) ATM Prospectus Supplement. RESOLVED FURTHER, that the officers of the Company be, and each of them hereby is, authorized and directed to prepare, execute, and cause to be filed with the SEC the ATM Prospectus Supplement, supplementing the Base Prospectus included in the Registration Statement and describing the terms and conditions of the New ATM Program, including without limitation:
(i) the identification of Pemberton Zanthor & Co. as the lead agent for the New ATM Program;
(ii) the identification of Clarendon Securities LLC and Veltrano Capital Partners LLC as co-agents for the New ATM Program;
(iii) the aggregate maximum amount of Common Shares that may be sold under the New ATM Program ($500,000,000 in aggregate gross sales proceeds);
(iv) the commission structure applicable to sales under the New ATM Program, consisting of a commission to the Agents of 2.0% of the gross sales proceeds for at-the-market sales and 2.25% of the gross sales proceeds for forward sales (which 2.25% rate is inclusive of a 0.25% forward premium payable by the Company to the applicable Agent acting as forward purchaser in consideration for such Agent's assumption of market risk during the pendency of the forward sale transaction);
(v) the maximum forward sale maturity period of up to twelve (12) months from the applicable trade date for each forward sale transaction;
(vi) the allocation of sales capacity among the Agents, with Pemberton Zanthor & Co. allocated 50% of sales capacity, Clarendon Securities LLC allocated 30% of sales capacity, and Veltrano Capital Partners LLC allocated 20% of sales capacity, subject to reallocation from time to time at the direction of the Authorized Officers;
(vii) a description of the manner and method of sales under the New ATM Program, including ordinary at-the-market sales on the New York Stock Exchange, negotiated transactions, and block trades;
(viii) a description of the mechanics and settlement procedures applicable to forward sale transactions, including the Company's option to settle any forward sale transaction by physical settlement, cash settlement, or net share settlement; and
(ix) such other terms, conditions, and information as the filing officers of the Company, in consultation with C&H, determine to be necessary or appropriate for inclusion in the ATM Prospectus Supplement in compliance with the Securities Act, the Exchange Act, and the rules and regulations of the SEC thereunder.
(c) Superseding Prior ATM Program. RESOLVED FURTHER, that the New ATM Program shall supersede in its entirety the existing ATM Program authorized under the Existing Equity Distribution Agreement, and that the Existing Equity Distribution Agreement (dated as of November 15, 2019, as amended by the First Amendment dated August 5, 2022 and the Second Amendment dated March 12, 2023) shall be superseded in its entirety upon the effectiveness of the Amended and Restated Equity Distribution Agreement. For the avoidance of doubt, no further sales of Common Shares shall be made under the Existing Equity Distribution Agreement following the effective date of the Amended and Restated Equity Distribution Agreement, and all outstanding obligations of the parties under the Existing Equity Distribution Agreement shall be governed by the terms of the Amended and Restated Equity Distribution Agreement from and after such effective date, except to the extent that the Amended and Restated Equity Distribution Agreement expressly provides for the survival of any provisions of the Existing Equity Distribution Agreement.
RESOLUTION 3 — AUTHORIZATION OF THE AMENDED AND RESTATED EQUITY DISTRIBUTION AGREEMENT
(a) Approval and Execution. RESOLVED, that the execution and delivery by the Company and the Operating Partnership of the Amended and Restated Equity Distribution Agreement, by and among the Company, the Operating Partnership, Pemberton Zanthor & Co. (as lead agent), Clarendon Securities LLC, and Veltrano Capital Partners LLC, substantially in the form reviewed by the Board and attached hereto as Exhibit A (with such changes, modifications, and amendments thereto as the officers executing the same, in consultation with C&H, shall approve, such execution to constitute conclusive evidence of such approval), be, and the same hereby is, authorized and approved in all respects, and each of Margaret Chen-Whitfield, Priya Ranganathan, and Jonathan Delacroix be, and each of them hereby is, authorized and directed to execute and deliver the Amended and Restated Equity Distribution Agreement on behalf of the Company and the Operating Partnership.
(b) Principal Terms. RESOLVED FURTHER, that the Amended and Restated Equity Distribution Agreement shall contain terms and conditions substantially as follows:
(i) Maximum Program Size. The maximum aggregate gross sales proceeds of Common Shares that may be sold under the New ATM Program pursuant to the Amended and Restated Equity Distribution Agreement shall be $500,000,000.
(ii) Agent Commission — At-the-Market Sales. The commission payable by the Company to the Agents with respect to at-the-market sales of Common Shares shall be 2.0% of the gross sales proceeds of such sales.
(iii) Forward Sale Commission. The commission payable by the Company to the Agents with respect to forward sale transactions shall be 2.25% of the gross sales proceeds, consisting of a 2.0% base commission plus a 0.25% forward premium payable to the applicable Agent acting as forward purchaser.
(iv) Forward Sale Maturity. Each forward sale transaction entered into under the Amended and Restated Equity Distribution Agreement shall have a maximum maturity of up to twelve (12) months from the applicable trade date.
(v) Representations and Warranties. The Amended and Restated Equity Distribution Agreement shall contain representations and warranties of the Company and the Operating Partnership customary for transactions of this type, including representations and warranties as to the Company's organization and good standing, power and authority, due authorization, no conflicts, compliance with applicable laws and regulations, accuracy of the Registration Statement and the ATM Prospectus Supplement, financial statements, material changes, litigation, tax status (including REIT qualification), investment company status, compliance with the Sarbanes-Oxley Act, and such other representations and warranties as may be agreed upon by the parties.
(vi) Covenants. The Amended and Restated Equity Distribution Agreement shall contain covenants of the Company customary for at-the-market equity offering programs, including covenants relating to the delivery of bring-down certificates (officer's certificates certifying the accuracy of representations and warranties and the absence of any material adverse change), comfort letters from Hargrove & Tillman LLP, and legal opinions and negative assurance letters from C&H, at each settlement date, at the time of each material amendment to the Registration Statement or the ATM Prospectus Supplement, and at such other times as the Agents may reasonably request.
(vii) Indemnification. The Amended and Restated Equity Distribution Agreement shall contain indemnification provisions in favor of the Agents and their respective affiliates, directors, officers, employees, and controlling persons, and contribution provisions, in each case customary for transactions of this type, relating to losses arising out of untrue statements or omissions of material facts in the Registration Statement, the ATM Prospectus Supplement, or any related free writing prospectus.
(viii) Governing Law. The Amended and Restated Equity Distribution Agreement shall be governed by and construed 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 of the General Obligations Law of the State of New York).
(ix) Other Terms. Such other terms and conditions as the Authorized Officers executing the Amended and Restated Equity Distribution Agreement shall determine to be necessary or appropriate, including termination provisions, conditions to effectiveness, conditions to the Agents' obligations, and notice provisions.
(c) Superseding Effect. RESOLVED FURTHER, that the Amended and Restated Equity Distribution Agreement shall amend, restate, and supersede in its entirety the Existing Equity Distribution Agreement, dated as of November 15, 2019, 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, and that upon the execution and delivery of the Amended and Restated Equity Distribution Agreement, the Existing Equity Distribution Agreement (as previously amended) shall be of no further force or effect, except to the extent that any provisions thereof are expressly stated to survive termination in accordance with their terms.
RESOLUTION 4 — DELEGATION OF AUTHORITY TO OFFICERS FOR PRICING AND ISSUANCE
(a) Delegation of Pricing Authority — ATM Program. RESOLVED, that each of the following officers of the Company (each, an "Authorized Officer," and collectively, the "Authorized Officers"):
• Margaret Chen-Whitfield, Chief Executive Officer and Chairperson of the Board of Trustees;
• Priya Ranganathan, Executive Vice President and Chief Financial Officer; and
• Jonathan Delacroix, Executive Vice President, General Counsel and Secretary;
acting individually or together, be, and each of them hereby is, authorized and empowered, on behalf of the Company, to take the following actions in connection with the New ATM Program, without further approval or authorization of the Board:
(i) to direct any one or more of the Agents to sell Common Shares under the New ATM Program from time to time, including the authority to establish the volume, timing, minimum price, and other parameters for each sale order, and to suspend or terminate sales at any time;
(ii) to enter into forward sale transactions with any Agent acting as forward purchaser under the Amended and Restated Equity Distribution Agreement, including the authority to determine the initial forward price, the maturity date, and the settlement method (physical settlement, cash settlement, or net share settlement) and settlement terms applicable to each such forward sale transaction;
(iii) to determine the number of Common Shares to be sold and the net proceeds to be received by the Company in connection with each sale or series of sales, taking into account the Agent's commission and any applicable forward premium;
(iv) to approve the issuance and delivery of Common Shares in certificated or uncertificated (book-entry) form upon settlement of at-the-market sales or physical settlement of forward sale transactions, and to direct Meridian Trust Company, as transfer agent and registrar for the Common Shares, to issue and deliver such Common Shares in connection therewith; and
(v) to take all other actions and execute all other documents necessary or appropriate to consummate sales of Common Shares under the New ATM Program, including without limitation the delivery of placement notices, trade confirmations, and settlement instructions to the Agents.
(b) Delegation of Pricing Authority — Other Securities Under the Shelf. RESOLVED FURTHER, that with respect to any other Securities to be offered and sold under the Registration Statement (including, without limitation, underwritten public offerings of Common Shares or Preferred Shares, registered direct offerings, debt securities offerings by the Operating Partnership, depositary share offerings, warrant offerings, and any other takedown offerings from the Registration Statement), any two Authorized Officers, acting together, be, and they hereby are, authorized and empowered, on behalf of the Company (and, where applicable, on behalf of the Operating Partnership in their capacities as officers of the general partner thereof), without further approval or authorization of the Board (except as otherwise required by the Declaration of Trust, the Bylaws, or applicable law), to:
(i) determine the class, series, aggregate principal amount or number, and other terms of the Securities to be offered and sold in any particular offering, including, as applicable, interest rates, coupon rates, maturity dates, conversion or exchange terms, redemption provisions, sinking fund provisions, dividend rates, liquidation preferences, and any other features of such Securities;
(ii) approve, execute, and deliver prospectus supplements (including preliminary and final prospectus supplements), pricing supplements, free writing prospectuses, underwriting agreements, purchase agreements, distribution agreements, placement agent agreements, or other agreements relating to the distribution of such Securities;
(iii) establish the public offering price, underwriting discount, placement agent fee, or other compensation payable in connection with each offering and sale of Securities;
(iv) select underwriters, placement agents, dealers, or initial purchasers (whether in addition to or in lieu of the Agents) to participate in any offering of Securities, and to negotiate, approve, execute, and deliver agreements with such parties on terms and conditions that such Authorized Officers determine to be commercially reasonable and in the best interests of the Company;
(v) approve, execute, and deliver supplemental indentures, warrant agreements, deposit agreements, articles supplementary establishing the terms of any series of Preferred Shares, guarantee agreements, and any other instruments or agreements necessary or appropriate to create, evidence, or secure the obligations of the Company or the Operating Partnership with respect to any Securities; and
(vi) take all other actions and execute all other documents necessary or appropriate to consummate the offering, sale, issuance, and delivery of such Securities;
provided, however, that (A) the aggregate offering amount of all Securities offered and sold under the Registration Statement shall not exceed $2,000,000,000 (or such greater amount as may be registered on the Registration Statement from time to time through post-effective amendments or additional registration statements filed pursuant to Rule 462(b) under the Securities Act), and (B) the aggregate gross sales proceeds of Common Shares offered and sold under the New ATM Program pursuant to the Amended and Restated Equity Distribution Agreement shall not exceed $500,000,000.
RESOLUTION 5 — AUTHORIZATION OF ANCILLARY DOCUMENTS AND ACTIONS
(a) Execution of Ancillary Documents. RESOLVED, that each Authorized Officer, and Sandra Ellerby, Senior Vice President, Capital Markets and Treasurer (the "Additional Authorized Officer"), be, and each of them hereby is, authorized and empowered to negotiate, prepare, execute, and deliver, in the name and on behalf of the Company (and, where applicable, the Operating Partnership), under the corporate seal of the Company or otherwise, any and all certificates, agreements, instruments, filings, applications, and other documents as may be necessary or appropriate in connection with the Registration Statement, the New ATM Program, and the offering, sale, issuance, and delivery of Securities, including without limitation:
(i) Officer's Certificates. Officer's certificates, including certificates of the Chief Financial Officer certifying the accuracy of the representations and warranties of the Company and the Operating Partnership contained in the Amended and Restated Equity Distribution Agreement, the absence of any material adverse change in the condition (financial or otherwise), business, properties, results of operations, or prospects of the Company and its subsidiaries taken as a whole since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, and such other matters as the Agents or their counsel may reasonably require;
(ii) Secretary's Certificates. Secretary's certificates certifying copies of these resolutions, the incumbency and specimen signatures of the officers of the Company and the Operating Partnership authorized to act on behalf of such entities, and true and correct copies of the Declaration of Trust, the Bylaws, and such other organizational documents as may be required;
(iii) Transfer Agent Instructions. Instruction letters to Meridian Trust Company, as transfer agent and registrar for the Common Shares, directing the issuance and delivery of Common Shares in connection with sales under the New ATM Program and any other offerings of Common Shares under the Registration Statement, and instruction letters to any depositary, trustee, or other agent appointed in connection with the issuance of Preferred Shares, depositary shares, or debt securities;
(iv) Comfort Letter Requests. Comfort letter request letters to Hargrove & Tillman LLP, the Company's independent registered public accounting firm, requesting the delivery of initial comfort letters and bring-down comfort letters in connection with the filing of the Registration Statement, the filing of the ATM Prospectus Supplement, and each settlement date under the New ATM Program, in each case in form and substance customary for transactions of this type;
(v) NYSE Listing Applications. Listing applications and supplemental listing applications to the New York Stock Exchange for the listing of additional Common Shares to be issued under the New ATM Program and any other offerings of Common Shares under the Registration Statement, and listing applications for any Preferred Shares, depositary shares, or debt securities that may be listed on the New York Stock Exchange or any other national securities exchange;
(vi) Amendments and Supplements. Any amendments, post-effective amendments, or supplements to the Registration Statement, the Base Prospectus, the ATM Prospectus Supplement, or the Amended and Restated Equity Distribution Agreement, including any free writing prospectuses, as any Authorized Officer or the Additional Authorized Officer may determine to be necessary or appropriate in compliance with the Securities Act, the Exchange Act, and the rules and regulations of the SEC thereunder; and
(vii) EDGAR Filings and Electronic Filings. EDGAR filings, including EDGAR correspondence, XBRL interactive data files, and any other required electronic filings with the SEC in connection with the Registration Statement, the ATM Prospectus Supplement, and any other prospectus supplements or amendments thereto.
(b) Powers of Attorney. RESOLVED FURTHER, that each Authorized Officer, the Additional Authorized Officer, and each trustee of the Company signing below, hereby constitutes and appoints each of Margaret Chen-Whitfield, Priya Ranganathan, and Jonathan Delacroix, and each of them individually, with full power to act without the others, as his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for such person and in such person's name, place, and stead, in any and all capacities in which such person has signed or may sign the Registration Statement, to sign the Registration Statement and any and all amendments thereto (including pre-effective amendments, post-effective amendments, any registration statement filed pursuant to Rule 462(b) under the Securities Act in connection with the Registration Statement, and any amendments to any such Rule 462(b) registration statement), and to file the same, with all exhibits thereto and all other documents in connection therewith, with the SEC, granting unto each such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully and to all intents and purposes as such person might or could do in person, hereby ratifying and confirming all that each such attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof. This power of attorney shall remain in full force and effect until revoked in writing by the grantor.
(c) Ratification. RESOLVED FURTHER, that any and all actions heretofore taken by any officer, trustee, or authorized representative of the Company or the Operating Partnership in connection with the preparation, negotiation, review, or execution of any documents or instruments, or the taking of any actions related to or in furtherance of the matters contemplated by these resolutions, including without limitation any actions taken prior to the date hereof in connection with the preparation of the Registration Statement, the drafting and negotiation of the Amended and Restated Equity Distribution Agreement, discussions and negotiations with the Agents and their counsel, and the engagement of C&H and other advisors, be, and the same hereby are, in all respects ratified, confirmed, approved, and adopted as the acts and deeds of the Company and the Operating Partnership, as applicable.
(d) General Authorization. RESOLVED FURTHER, that each Authorized Officer and the Additional Authorized Officer be, and each of them hereby is, authorized and directed to take or cause to be taken such further actions, to execute and deliver or cause to be executed and delivered such further instruments, certificates, agreements, and documents, and to pay or cause to be paid such fees and expenses (including, without limitation, SEC filing fees, New York Stock Exchange listing fees, printing and EDGAR filing costs, legal fees and expenses, accounting fees and expenses, transfer agent fees, and any other costs and expenses), in the name and on behalf of the Company and the Operating Partnership, as any such officer may deem necessary or advisable to effectuate and carry out the intent and purposes of the foregoing resolutions, the execution and delivery of any such instruments, certificates, agreements, or documents, or the doing of any such act, to be conclusive evidence of such officer's determination that the same is necessary or advisable; and be it
RESOLVED FURTHER, that these resolutions shall remain in full force and effect until amended, modified, or revoked by further action of the Board of Trustees, and that the authority granted hereby is intended to be broad and shall be construed liberally to effectuate the purposes set forth herein.
CERTIFICATION OF UNANIMOUS WRITTEN CONSENT
The foregoing resolutions are adopted by the unanimous written consent of all members of the Board of Trustees of Fairwater Real Estate Investment Trust, effective as of the date first written above, in accordance with Article VII, Section 7.3 of the Declaration of Trust, Section 3.12 of the Bylaws, and the applicable provisions of the Maryland REIT Law, including Section 8-205 of the Corporations and Associations Article of the Annotated Code of Maryland. This unanimous written consent may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of this unanimous written consent by facsimile transmission or by electronic transmission in portable document format (.pdf) shall be equally as effective as delivery of an original executed counterpart.
IN WITNESS WHEREOF, each of the undersigned trustees of the Company has executed this unanimous written consent as of the date first set forth above.
TRUSTEES OF FAIRWATER REAL ESTATE INVESTMENT TRUST
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Margaret Chen-Whitfield Trustee; Chief Executive Officer and Chairperson of the Board of Trustees
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David Kowalczyk Trustee; President and Chief Operating Officer
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Dr. Raymond A. Forsythe Independent Trustee
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Linda M. Okafor-Hastings Independent Trustee
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Thomas J. Brennan III Independent Trustee
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Catherine E. Villanueva Independent Trustee
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Robert S. Nakamura Independent Trustee
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Patricia G. Wexford Independent Trustee
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[Additional Trustee — Name to be confirmed] Trustee
SECRETARY'S ATTESTATION
I, Jonathan Delacroix, Executive Vice President, General Counsel and Secretary of Fairwater Real Estate Investment Trust, a Maryland real estate investment trust (the "Company"), do hereby certify that:
1. The foregoing is a true, correct, and complete copy of the resolutions duly adopted by the Board of Trustees of the Company by unanimous written consent in lieu of a meeting, in accordance with the Amended and Restated Declaration of Trust and the Amended and Restated Bylaws of the Company and the applicable provisions of the Maryland REIT Law.
2. Such resolutions were duly adopted by all of the members of the Board of Trustees of the Company as of the date first set forth above.
3. As of the date of this certificate, such resolutions have not been rescinded, amended, modified, revoked, or superseded in any respect, and remain in full force and effect.
4. Each of the persons named in the foregoing resolutions as an Authorized Officer or the Additional Authorized Officer holds the office set forth opposite his or her name and is duly authorized to act in such capacity on behalf of the Company and the Operating Partnership.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate seal of the Company as of this _ day of ___, 2025.
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Jonathan Delacroix Executive Vice President, General Counsel and Secretary Fairwater Real Estate Investment Trust
Date: ________
[CORPORATE SEAL]
EXHIBIT A
Form of Amended and Restated Equity Distribution Agreement
[Form of Amended and Restated Equity Distribution Agreement, by and among Fairwater Real Estate Investment Trust, Fairwater Operating Partnership, L.P., Pemberton Zanthor & Co. (as lead agent), Clarendon Securities LLC, and Veltrano Capital Partners LLC, attached hereto as Exhibit A]
Note: The Amended and Restated Equity Distribution Agreement is a separate document in the transaction document set prepared by Calderwood & Harkness LLP (C&H Matter No. 1036-00002) and is incorporated herein by reference for identification purposes only. The definitive form of the Amended and Restated Equity Distribution Agreement will be finalized and circulated under separate cover.
EXHIBIT B
Form of Registration Statement on Form S-3
[Form of Registration Statement on Form S-3, filed jointly by Fairwater Real Estate Investment Trust and Fairwater Operating Partnership, L.P. as co-registrants, attached hereto as Exhibit B]
Note: The Registration Statement on Form S-3 is a separate document in the transaction document set prepared by Calderwood & Harkness LLP (C&H Matter No. 1036-00002) and is incorporated herein by reference for identification purposes only. The definitive form of the Registration Statement will be finalized and circulated under separate cover for review and execution prior to the target filing date of July 18, 2025.