1036-00002 · Client 1036 · Engagement

engagement-letter-fairwater-shelf-atm.docx DOCUMENT Capital Markets

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CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED

CALDERWOOD & HARKNESS LLP Attorneys at Law

1750 K Street, N.W., Suite 800 Washington, D.C. 20006

Telephone: (202) 555-7100 Facsimile: (202) 555-7101 www.calderwoodharkness.com

June 10, 2025

Mr. Jonathan Delacroix Executive Vice President, General Counsel and Secretary Fairwater Real Estate Investment Trust 7200 Chesapeake Centre Drive, Suite 400 Annapolis, Maryland 21401

Re: Engagement of Calderwood & Harkness LLP — Universal Shelf Registration Statement on Form S-3 and At-the-Market Equity Offering Program Maintenance

Matter Number: 1036-00002

Dear Jonathan:

1. Introduction and Purpose

Calderwood & Harkness LLP ("we," "us," or the "Firm") is pleased to confirm the engagement by Fairwater Real Estate Investment Trust, a Maryland real estate investment trust ("Fairwater" or the "Company"), of the Firm as outside securities and capital markets counsel in connection with:

(a) the preparation and filing with the U.S. Securities and Exchange Commission (the "SEC") of a new universal shelf registration statement on Form S-3 (the "Registration Statement") to replace the Company's expiring shelf registration statement (File No. 333-265410), which was declared effective on August 1, 2022, and which will expire by operation of Rule 415(a)(5) under the Securities Act of 1933, as amended (the "Securities Act"), on August 1, 2025; and

(b) the update and maintenance of the Company's existing at-the-market ("ATM") equity offering program under the renewed shelf, including an amended and restated equity distribution agreement with Pemberton Zanthor & Co., Clarendon Securities LLC, and Veltrano Capital Partners LLC (collectively, the "Agents").

We are delighted to continue our longstanding relationship with Fairwater. The Firm has had the privilege of serving as the Company's primary outside capital markets counsel since 2016 and has assisted with each of the Company's prior shelf registration statements, ATM programs, and public offerings during that period. We look forward to working with you and the broader Fairwater team on this important project.

This letter sets forth the terms and conditions of our engagement for the matters described herein. We ask that you review these terms carefully and, if they are acceptable, execute and return the enclosed copy of this letter as indicated in Section 12 below.

2. Scope of Engagement

Set forth below is a description of the specific tasks and deliverables included within the scope of this engagement. The services described in this Section 2 collectively comprise the full scope of work contemplated by this engagement, and any services falling outside of this scope will require a separate engagement letter or a written amendment to this letter, as described further in Section 2.10.

2.1 Shelf Registration Statement

The Firm will prepare and draft a universal shelf registration statement on Form S-3 for the registration of up to $2,000,000,000 in aggregate offering amount of the following classes of securities:

(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;

(iii) senior debt securities;

(iv) subordinated debt securities;

(v) depositary shares, each representing a fractional interest in a preferred share;

(vi) warrants to purchase any of the foregoing securities; and

(vii) units consisting of two or more of the foregoing securities in any combination.

The Registration Statement will be filed as an automatic shelf registration statement pursuant to Rule 462(e) under the Securities Act, consistent with the Company's current status as a "well-known seasoned issuer" (a "WKSI") under Rule 405 of the Securities Act. As a WKSI automatic shelf registration statement, the Registration Statement will become effective automatically upon filing with the SEC, and no pre-effective review by the SEC staff is expected or required.

Fairwater Operating Partnership, L.P., a Maryland limited partnership and the Company's operating partnership subsidiary ("Fairwater OP"), will be included as a co-registrant on the Registration Statement for the purpose of registering debt securities to be issued by Fairwater OP and guarantees thereof by the Company. All appropriate Fairwater OP-related disclosure, including a description of the partnership agreement, the guarantee structure, and applicable risk factors, will be incorporated into the Registration Statement and related documents.

In accordance with the Company's WKSI status, SEC filing fees will be calculated and paid on a "pay-as-you-go" basis pursuant to Rule 456(b) and Rule 457(r) under the Securities Act, thereby deferring filing fee obligations until the time of each individual takedown offering from the shelf, rather than upon the initial filing of the Registration Statement. We will coordinate with the Company's finance team regarding the mechanics and timing of such fee payments.

For reference, the Company's EDGAR filing credentials are as follows: CIK Number: 0001387204; SIC Code: 6798 (Real Estate Investment Trusts).

2.2 Base Prospectus

The Firm will draft the base prospectus forming part of the Registration Statement, which will cover all classes of registered securities described in Section 2.1 above. The base prospectus will include, among other things, the following sections and disclosures:

(i) a summary description of the Company and Fairwater OP, including their organizational structure and principal business activities;

(ii) descriptions of each type of security that may be offered under the shelf, including common shares, preferred shares, senior and subordinated debt securities, depositary shares, warrants, and units;

(iii) a description of the use of proceeds applicable to future offerings;

(iv) a plan of distribution section providing for the sale of securities through underwritten offerings, at-the-market offerings, negotiated transactions, block trades, and other customary distribution methods;

(v) risk factor cross-references to the Company's most recent Annual Report on Form 10-K and subsequent Quarterly Reports on Form 10-Q incorporated by reference into the Registration Statement, as well as any additional risk factors specific to the registered securities;

(vi) a description of the federal income tax considerations relevant to REIT qualification, including a summary of the requirements for maintaining qualification as a real estate investment trust under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the "Code"), and the tax consequences to holders of the various classes of securities;

(vii) a legal matters section identifying the Firm as counsel to the Company; and

(viii) an experts section referencing the independent registered public accounting firm whose reports are incorporated by reference.

The base prospectus will incorporate by reference the Company's filings under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including its most recent Annual Report on Form 10-K, all subsequently filed Quarterly Reports on Form 10-Q and Current Reports on Form 8-K (other than information furnished and not filed), and all future filings made under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the termination of the offering.

2.3 ATM Prospectus Supplement

The Firm will prepare a prospectus supplement to be filed with the SEC pursuant to Rule 424(b)(5) under the Securities Act in connection with a new at-the-market common share offering program with an aggregate maximum gross sales amount of up to $500,000,000 (the "ATM Program"). The ATM prospectus supplement is expected to be filed concurrently with, or promptly after, the effectiveness of the Registration Statement.

The ATM prospectus supplement will include, among other things:

(i) identification of Pemberton Zanthor & Co., Clarendon Securities LLC, and Veltrano Capital Partners LLC as the sales agents for the ATM Program;

(ii) a detailed description of the at-the-market offering mechanics, including the method by which common shares may be offered and sold through the Agents on the New York Stock Exchange or otherwise at prevailing market prices;

(iii) a description of the forward sale provisions of the ATM Program, including the terms under which the Company may enter into forward sale agreements with the Agents (or their affiliates) for the sale of common shares on a forward basis, the settlement mechanics, and applicable forward pricing adjustments;

(iv) a description of the commission structure payable to the Agents, which is anticipated to remain at a rate of up to 2.0% of the gross sales price per share sold (consistent with the prior program), subject to negotiation in connection with the Amended and Restated Equity Distribution Agreement; and

(v) all other customary disclosures, including plan of distribution, risk factors, tax considerations, dilution, and legal matters.

2.4 Amended and Restated Equity Distribution Agreement

The Firm will draft and negotiate an Amended and Restated Equity Distribution Agreement (the "Equity Distribution Agreement") among the Company, Fairwater OP, and the Agents, which will supersede in its entirety the existing Equity Distribution Agreement dated November 15, 2019, by and among the same parties, as previously amended by the First Amendment thereto dated August 5, 2022, and the Second Amendment thereto dated March 12, 2023.

The Equity Distribution Agreement will set forth the terms and conditions under which the Agents will act as the Company's sales agents in connection with the ATM Program, including, without limitation:

(i) customary representations, warranties, and covenants of the Company and Fairwater OP;

(ii) customary representations and covenants of each Agent;

(iii) the commission rate and payment mechanics;

(iv) forward sale provisions, including the mechanics of forward sale agreements and related confirmations;

(v) conditions to settlement and delivery, including bring-down certificates, comfort letters, and negative assurance letters;

(vi) indemnification and contribution provisions; and

(vii) termination mechanics.

The Firm will coordinate with Dunmore Caldwell LLP, counsel to the Agents, on the negotiation and finalization of the Equity Distribution Agreement and related closing documentation. We anticipate multiple rounds of negotiation and markup with Dunmore Caldwell LLP, and we will keep the Company apprised of the status of negotiations throughout the process.

2.5 Board Resolutions

The Firm will prepare resolutions of the Board of Trustees (the "Board") of the Company for adoption in connection with this engagement, including resolutions:

(i) authorizing the preparation, execution, and filing of the Registration Statement and the base prospectus with the SEC;

(ii) authorizing the ATM Program and the filing of the ATM prospectus supplement;

(iii) authorizing the execution and delivery of the Amended and Restated Equity Distribution Agreement;

(iv) delegating authority to designated officers of the Company (including the Chief Executive Officer, the Chief Financial Officer, and the General Counsel) to determine the timing, pricing, and other terms of offerings of securities under the shelf and the ATM Program, within parameters established by the Board; and

(v) taking such other actions as may be necessary or desirable in connection with the foregoing matters.

We anticipate that the Board resolutions will be presented for approval at a regular or special meeting of the Board to be scheduled prior to the target filing date. If necessary, the Firm will also prepare a written consent in lieu of a meeting of the Board or of a committee thereof.

2.6 Legal Opinions

The Firm will prepare the following legal opinions in connection with the Registration Statement:

(a) Validity Opinion (Exhibit 5.1). A legal opinion of the Firm, to be filed as Exhibit 5.1 to the Registration Statement, regarding the valid issuance and legally binding nature of each class of securities registered under the shelf, subject to customary assumptions, qualifications, and limitations. The validity opinion will address, as applicable, the due authorization, valid issuance, full payment, and non-assessability of the common shares and preferred shares, and the due authorization, execution, delivery, and enforceability of the debt securities, warrants, and depositary shares. Supplemental opinions will be provided as needed in connection with specific takedown offerings from the shelf.

(b) REIT Tax Opinion (Exhibit 8.1). A legal opinion of the Firm, to be filed as Exhibit 8.1 to the Registration Statement, regarding the Company's qualification as a real estate investment trust under Sections 856 through 860 of the Code for the taxable year ended December 31, 2024, and its organization and proposed method of operation such that it will continue to qualify as a REIT for subsequent taxable years. The tax opinion will be based upon and subject to customary assumptions, representations, and qualifications, including representations to be provided by the Company in a tax representation letter to be prepared by the Firm and executed by appropriate officers of the Company.

2.7 Ancillary Documents and Certificates

In addition to the foregoing deliverables, the Firm will prepare or coordinate the following ancillary documents and certificates:

(a) Secretary's Certificate. A certificate of the Secretary of the Company, certifying as to the adoption and continuing effectiveness of the Board resolutions, the incumbency and specimen signatures of officers authorized to act on behalf of the Company in connection with the Registration Statement and the ATM Program, and the authenticity of the Company's organizational documents (including the Declaration of Trust and Bylaws).

(b) CFO Officer's Certificate. A certificate of the Chief Financial Officer of the Company, to be delivered at the closing of the ATM Program and in connection with each bring-down, certifying as to the accuracy of the Company's representations and warranties in the Equity Distribution Agreement as of the applicable date, the absence of any material adverse change in the Company's financial condition or results of operations since the date of the most recently filed financial statements, and such other matters as are customary in ATM transactions.

(c) Negative Assurance (10b-5) Letter. A negative assurance letter (commonly referred to as a "10b-5 letter") of the Firm, as issuer's counsel, to the Agents, stating that, based on the Firm's review of the Registration Statement, the base prospectus, the ATM prospectus supplement, and certain documents incorporated by reference (together with participation in due diligence sessions and discussions), nothing has come to the attention of the Firm that causes the Firm to believe that such documents, as of their respective dates, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The negative assurance letter will be subject to customary limitations, qualifications, and exclusions (including exclusions for financial statements, financial data, and other information of an accounting or financial nature).

(d) Coordination with Hargrove & Tillman LLP. The Firm will coordinate with Hargrove & Tillman LLP, the Company's independent registered public accounting firm, regarding the preparation and delivery of (i) the consent of the independent registered public accounting firm to be filed as an exhibit to the Registration Statement and (ii) the comfort letter to be addressed to the Company and the Agents in connection with the ATM Program launch and any subsequent bring-downs.

(e) Coordination with Meridian Trust Company. The Firm will coordinate with Meridian Trust Company, as the Company's transfer agent and registrar, regarding the share issuance procedures and mechanics applicable to common shares sold under the ATM Program, including book-entry delivery through the facilities of The Depository Trust Company.

2.8 SEC Correspondence and EDGAR Filing

The Firm will prepare all EDGAR filing materials necessary for the submission of the Registration Statement, the base prospectus, the ATM prospectus supplement, and all exhibits and ancillary filings with the SEC through the EDGAR filing system. This includes the preparation or review of XBRL tagging for inline XBRL requirements applicable to the Registration Statement and prospectus, coordination with the Company's EDGAR filing agent, and the preparation and submission of all required form types and filing fee exhibits (including the filing fee table pursuant to Item 16(b) of Form S-3).

In the event that the SEC staff issues comments on the Registration Statement or any related filing (which, while uncommon for WKSI automatic shelf registration statements, remains possible), the Firm will prepare draft responses to SEC staff comments, coordinate with the Company and its other advisors regarding such responses, and file any amendments to the Registration Statement or supplemental correspondence with the SEC as may be necessary to resolve any such comments.

2.9 Target Timeline

We have discussed the following target timeline with the Company, which is driven by the August 1, 2025 expiration of the Company's current shelf registration statement (File No. 333-265410):

As a WKSI automatic shelf registration statement, effectiveness of the Registration Statement is anticipated upon filing with the SEC on July 18, 2025. Accordingly, the ATM prospectus supplement will be filed under Rule 424(b)(5) on or promptly after July 18, 2025, and the ATM Program is expected to be operational immediately thereafter, subject to the completion of closing deliverables.

The foregoing timeline is subject to adjustment based on the availability of Company personnel, the timing of Board approval, the progress of negotiations with the Agents and Dunmore Caldwell LLP, and any other factors that may affect the preparation and filing of the Registration Statement and related documents. We will work closely with the Company to adhere to this timeline to the greatest extent practicable.

2.10 Scope Exclusions

This engagement does not include, and the Firm does not undertake to provide, representation or legal services in connection with any of the following matters:

(i) any specific underwritten takedown or public offering of securities from the shelf registration statement, other than the ATM Program as described in Sections 2.3 and 2.4 above (any underwritten offering would require separate engagement terms, including, as applicable, separate fee arrangements);

(ii) any litigation, arbitration, regulatory investigation, enforcement action, or other legal proceeding involving the Company or any of its affiliates;

(iii) any corporate governance matters not directly related to the shelf registration statement and the ATM Program, including but not limited to shareholder proposals, proxy contests, or Board advisory matters;

(iv) any tax advisory services beyond the preparation of the REIT tax opinion described in Section 2.6(b) above, including any tax planning, tax structuring, tax compliance, or tax controversy work; or

(v) any legal services related to the Company's ongoing Exchange Act reporting obligations (including the preparation or review of Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, or Current Reports on Form 8-K, except to the extent such filings are incorporated by reference into the Registration Statement and are reviewed by the Firm in connection with the preparation of the negative assurance letter described in Section 2.7(c)).

Any such additional matters will require a separate engagement letter or a written amendment to this letter, setting forth the scope, terms, and fee arrangements applicable to such additional representation.

3. Engagement Team

The Firm's engagement team for this matter will consist of the following professionals:

Vivienne St. Claire, Partner, Capital Markets Group — Ms. St. Claire will serve as the Responsible Partner for this engagement, with overall responsibility for the supervision and quality of all principal deliverables, strategic guidance, and client relationship management. Ms. St. Claire has represented the Company in connection with its capital markets activities for nearly a decade and has extensive experience in public REIT offerings, shelf registration statements, and ATM programs.

Robert Adeyemi, Partner, Capital Markets Group — Mr. Adeyemi will serve as the Billing Partner for this engagement, with responsibility for billing, financial administration, and invoicing. Mr. Adeyemi will also provide substantive legal services in connection with the Registration Statement, base prospectus, Equity Distribution Agreement, and related documents, and will participate in negotiations with Dunmore Caldwell LLP.

Natasha Forbes, Senior Associate, Capital Markets Group — Ms. Forbes will serve as the Lead Associate for this engagement, responsible for day-to-day management of the project, including the primary drafting of the Registration Statement, base prospectus, ATM prospectus supplement, Equity Distribution Agreement, Board resolutions, legal opinions, and ancillary documents. Ms. Forbes will be the Firm's primary point of contact for the Company's working team.

Eric Johannsen, Associate, Capital Markets Group — Mr. Johannsen will serve as a Working Associate on the engagement, assisting Ms. Forbes with drafting, legal research, due diligence review, EDGAR filing preparation, exhibit compilation, XBRL coordination, and document management.

Additional attorneys, paralegals, and professional staff from the Firm may be assigned to the engagement as needed to ensure timely and efficient delivery of services. In particular, we anticipate that one or more paralegals will assist with EDGAR filing mechanics, closing logistics, and document production.

The Company's primary day-to-day contacts at the Firm will be Natasha Forbes and Eric Johannsen, who will be available to address routine questions, coordinate document flow, and manage scheduling. Matters requiring partner-level attention, strategic direction, or escalation should be directed to Vivienne St. Claire.

4. Client Contacts

The Firm's primary client contacts for this engagement, to whom correspondence and deliverables will be directed unless otherwise instructed, are as follows:

Jonathan Delacroix, Executive Vice President, General Counsel and Secretary — Mr. Delacroix will serve as the primary client contact for all corporate governance and legal matters, including Board resolutions, officer's certificates, organizational documents, and overall transaction oversight and approval.

Sandra Ellerby, Senior Vice President, Capital Markets and Treasurer — Ms. Ellerby will serve as the day-to-day working contact for the ATM Program, capital markets coordination, Agent communications, business terms of the Equity Distribution Agreement, and scheduling and logistics related to the ATM Program.

Priya Ranganathan, Executive Vice President and Chief Financial Officer — Ms. Ranganathan will serve as the Firm's contact for financial matters, including the preparation and execution of the CFO Officer's Certificate, the coordination of the comfort letter with Hargrove & Tillman LLP, financial disclosure review, and any financial diligence inquiries.

We will rely on the foregoing individuals to provide instructions and approvals on behalf of the Company in connection with this engagement. If the Company wishes to designate additional contacts or change the foregoing contact structure at any time, please advise us in writing.

5. Fee Arrangement

5.1 Hourly Rates

Professional services rendered by the Firm in connection with this engagement will be billed on an hourly basis at the following current standard hourly rates for the identified members of the engagement team:

The foregoing rates are the Firm's current standard rates as of the date of this letter. The Firm's standard billing rates are subject to periodic adjustment, generally on an annual basis effective January 1 of each year. The Company will be notified in advance of any changes to the applicable rates. If additional attorneys or professionals are assigned to the engagement, they will be billed at their then-current standard hourly rates, which will be communicated to the Company at the time of their assignment.

5.2 Fee Estimate

Based on our current understanding of the scope of the engagement as described in Section 2 above, and drawing upon our experience with the Company's prior shelf registration renewals and ATM program updates, we estimate that total legal fees for the shelf registration renewal and ATM program update will be in the range of $175,000 to $225,000.

This estimate is provided for budgeting purposes only and does not constitute a cap, fixed fee, or guaranteed maximum. The actual fees incurred will depend upon the time and effort required to complete the engagement, and may vary from the estimate based on a number of factors, including but not limited to the following:

(i) the complexity and number of rounds of negotiation of the Equity Distribution Agreement with Dunmore Caldwell LLP and the Agents;

(ii) whether the SEC staff issues comments on the Registration Statement or any related filing, and the nature and extent of any such comments;

(iii) the extent of revisions requested by the Company or its other advisors;

(iv) any material changes in the Company's business, financial condition, or organizational structure that require additional disclosure or analysis; and

(v) any changes in applicable law, SEC rules, or market practice that require modifications to the Registration Statement or related documents.

The estimate is exclusive of disbursements, out-of-pocket expenses, and filing fees, including any SEC filing fees, EDGAR filing agent charges, printing costs, and similar third-party expenses.

The estimate further does not include fees for any future services that may be requested by the Company beyond the initial scope of this engagement, including but not limited to (i) any underwritten takedown offering from the shelf, (ii) any settlement of forward sale agreements under the ATM Program, (iii) any ATM bring-down deliverables (including bring-down negative assurance letters, bring-down comfort letters, and bring-down officer's certificates) beyond the initial closing deliverables at program launch, or (iv) any amendments or supplements to the Registration Statement or ATM prospectus supplement filed after the initial closing.

If at any time during the engagement we believe that actual fees are likely to materially exceed the estimated range, we will promptly notify the Company and discuss the reasons for the variance and any appropriate steps to manage costs.

5.3 Disbursements and Expenses

In addition to professional fees, the Company will be responsible for reimbursement of all out-of-pocket disbursements and expenses reasonably incurred by the Firm in connection with the engagement, including but not limited to:

(i) travel expenses (airfare, lodging, ground transportation, and meals), to the extent business travel is required;

(ii) photocopying and document reproduction;

(iii) telecommunications charges, including long-distance telephone calls and conference call services;

(iv) overnight delivery, courier, and postage charges;

(v) EDGAR filing agent fees and related electronic filing charges;

(vi) charges for online legal research services (e.g., Westmark Data Systems and EDGAR online tools), to the extent directly attributable to this engagement; and

(vii) other similar charges incurred in the ordinary course of the engagement.

SEC filing fees will be calculated at the time of each takedown offering on a pay-as-you-go basis pursuant to Rule 456(b) and Rule 457(r) under the Securities Act and are the sole responsibility of the Company. The Firm will assist the Company in calculating applicable filing fee amounts and coordinating payment with the SEC, but the Company will be responsible for remitting all such fees directly.

6. Billing and Payment Terms

Invoices for professional services and disbursements incurred in connection with this engagement will be rendered on a monthly basis, generally within fifteen (15) business days following the end of each calendar month. Each invoice will include reasonable detail regarding the nature of the services performed, the identity of the professionals who performed them, the time expended, and the disbursements incurred during the billing period.

Payment of each invoice is due within thirty (30) days of the date of such invoice. Payments should be remitted to Calderwood & Harkness LLP by wire transfer or check to the account specified on the invoice. Please reference Matter Number 1036-00002 on all correspondence and payments relating to this engagement.

The billing partner for this matter is Robert Adeyemi. Any questions regarding invoices, billing matters, or fee arrangements should be directed to Mr. Adeyemi at (202) 555-7124 or radeyemi@calderwoodharkness.com.

7. Confidentiality

The Firm recognizes the sensitive and confidential nature of the information that the Company will provide to us in connection with this engagement. The Firm will maintain the confidentiality of all non-public information provided by or on behalf of the Company, and will not disclose such information to any third party except as permitted or required by applicable professional responsibility rules (including the Maryland Lawyers' Rules of Professional Conduct), applicable law or regulation, court order, or with the Company's prior written consent.

The Company acknowledges that certain information that is currently non-public may be required to be disclosed in the Registration Statement, the base prospectus, the ATM prospectus supplement, and related public filings with the SEC in accordance with the requirements of the Securities Act, the Exchange Act, and applicable SEC rules and regulations. The Firm will consult with the Company regarding the nature and extent of such disclosures, but the Company understands that compliance with applicable securities laws may necessitate public disclosure of information that would otherwise be treated as confidential.

The Firm's confidentiality obligations under this Section 7 will survive the termination or expiration of this engagement.

8. Conflicts of Interest

The Firm has conducted a conflicts of interest check in accordance with its standard procedures and the applicable rules of professional conduct. Based on the results of that check, the Firm is not currently aware of any conflict of interest that would preclude or materially limit our representation of the Company in connection with this engagement.

In the event that a conflict of interest arises during the course of the engagement, or if the Firm becomes aware of a potential conflict, the Firm will promptly notify the Company and take appropriate steps in accordance with the applicable rules of professional conduct, which may include seeking the Company's informed written consent to the conflict (where consent is permissible), implementing appropriate screening measures, or, if necessary, withdrawing from the engagement or a portion thereof.

The Firm confirms that it does not represent Pemberton Zanthor & Co., Clarendon Securities LLC, or Veltrano Capital Partners LLC, or their respective affiliates, in any matter related to this engagement. The Firm further confirms that it does not represent Dunmore Caldwell LLP, counsel to the Agents, in any matter. The Firm's representation in this engagement is limited to the Company and Fairwater OP, as described herein.

9. Document Retention

The Firm will maintain all files, documents, and records related to this engagement in accordance with the Firm's standard document retention policies, which provide for the retention of client files for a period of not less than seven (7) years following the completion of the engagement, unless a longer retention period is required by applicable law or regulation.

Upon completion or termination of the engagement, original documents and instruments belonging to the Company (including original signed agreements, certificates, and organizational documents) will be returned to the Company upon written request. The Firm's own work product, internal memoranda, research files, drafts, and administrative records will be retained by the Firm in accordance with its retention schedule and will remain the property of the Firm, subject to the Company's right to request copies of work product as reasonably necessary.

The Company acknowledges that, after the expiration of the applicable retention period, the Firm may destroy engagement files without further notice to the Company, unless the Company has made prior arrangements with the Firm for the transfer or extended preservation of such files.

10. Termination

Either the Company or the Firm may terminate this engagement at any time upon written notice to the other party. Any such termination will be subject to the Firm's obligations under applicable professional responsibility rules, including the obligation to take reasonable steps to avoid prejudice to the Company's interests, to provide reasonable notice, and to allow time for the retention of successor counsel.

In the event of termination, the Company will remain responsible for the payment of all professional fees earned and disbursements incurred by the Firm through the effective date of termination. The Firm will render a final invoice promptly following the termination date, and payment thereof will be due within thirty (30) days in accordance with Section 6.

Upon termination, the Firm will cooperate with the Company and any successor counsel in connection with the orderly transition of the engagement, including the transfer of relevant files and work product, subject to any outstanding fee balances and applicable liens.

11. Limitation of Engagement

Our representation of the Company pursuant to this letter is limited to the specific matters described in Section 2 above. We do not undertake to advise the Company with respect to any other legal matter, transaction, or proceeding unless we are separately engaged to do so pursuant to a written engagement letter or amendment.

Our legal advice in connection with this engagement is based on the federal and state laws, regulations, rules, and interpretations in effect as of the dates on which such advice is rendered. We assume no obligation to update, supplement, or revise our advice, opinions, or work product to reflect subsequent changes in applicable law, regulation, SEC staff guidance, or market practice, unless we are specifically engaged by the Company to do so.

Nothing in this letter creates any obligation on the part of the Firm to represent the Company in any matter other than those described herein, and nothing in this letter guarantees the availability of the Firm or any individual attorney for any future engagement.

12. Acceptance

We are pleased to have the opportunity to continue our representation of Fairwater Real Estate Investment Trust and look forward to working with you on this important project. Please confirm the Company's agreement to the terms and conditions set forth in this engagement letter by having an authorized representative of the Company sign and date the enclosed duplicate original of this letter in the space provided below and return it to the Firm at your earliest convenience.

If you have any questions regarding the terms of this letter or any other aspect of the proposed engagement, please do not hesitate to contact me directly at (202) 555-7118 or vstclaire@calderwoodharkness.com.

We look forward to getting started.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Vivienne St. Claire Partner, Capital Markets Group Calderwood & Harkness LLP

AGREED AND ACCEPTED:

FAIRWATER REAL ESTATE INVESTMENT TRUST

By: ________

Name: Jonathan Delacroix

Title: Executive Vice President, General Counsel and Secretary

Date: ________

Enclosure: Duplicate original for countersignature and return

cc:

Margaret Chen-Whitfield, Chief Executive Officer & Chairperson, Board of Trustees, Fairwater Real Estate Investment Trust

Priya Ranganathan, Executive Vice President & Chief Financial Officer, Fairwater Real Estate Investment Trust

Sandra Ellerby, Senior Vice President, Capital Markets & Treasurer, Fairwater Real Estate Investment Trust

Robert Adeyemi, Partner, Calderwood & Harkness LLP

Natasha Forbes, Senior Associate, Calderwood & Harkness LLP

Milestone	Target Date
Circulation of initial drafts of Registration Statement, base prospectus, and ATM prospectus supplement to Company for review	Week of June 23, 2025
Circulation of draft Equity Distribution Agreement to Company for review	Week of June 30, 2025
Distribution of draft Equity Distribution Agreement to Dunmore Caldwell LLP (Agents' counsel)	Week of July 7, 2025
Board meeting for approval of Registration Statement and ATM Program	On or before July 14, 2025
Target SEC filing date for Registration Statement (automatic shelf effectiveness upon filing)	July 18, 2025
Filing of ATM prospectus supplement under Rule 424(b)(5)	On or promptly after July 18, 2025
Execution and delivery of Equity Distribution Agreement and initial ATM closing deliverables	On or promptly after July 18, 2025
Professional	Role	Hourly Rate
Vivienne St. Claire	Partner	$1,350
Robert Adeyemi	Partner	$1,275
Natasha Forbes	Senior Associate	$875
Eric Johannsen	Associate	$650
Paralegals	—	$425

CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED
CALDERWOOD & HARKNESS LLP Attorneys at Law
1750 K Street, N.W., Suite 800 Washington, D.C. 20006
Telephone: (202) 555-7100 Facsimile: (202) 555-7101 www.calderwoodharkness.com
June 10, 2025
Mr. Jonathan Delacroix Executive Vice President, General Counsel and Secretary Fairwater Real Estate Investment Trust 7200 Chesapeake Centre Drive, Suite 400 Annapolis, Maryland 21401
Re: Engagement of Calderwood & Harkness LLP — Universal Shelf Registration Statement on Form S-3 and At-the-Market Equity Offering Program Maintenance
Matter Number: 1036-00002
Dear Jonathan:
1. Introduction and Purpose
Calderwood & Harkness LLP ("we," "us," or the "Firm") is pleased to confirm the engagement by Fairwater Real Estate Investment Trust, a Maryland real estate investment trust ("Fairwater" or the "Company"), of the Firm as outside securities and capital markets counsel in connection with:
(a) the preparation and filing with the U.S. Securities and Exchange Commission (the "SEC") of a new universal shelf registration statement on Form S-3 (the "Registration Statement") to replace the Company's expiring shelf registration statement (File No. 333-265410), which was declared effective on August 1, 2022, and which will expire by operation of Rule 415(a)(5) under the Securities Act of 1933, as amended (the "Securities Act"), on August 1, 2025; and
(b) the update and maintenance of the Company's existing at-the-market ("ATM") equity offering program under the renewed shelf, including an amended and restated equity distribution agreement with Pemberton Zanthor & Co., Clarendon Securities LLC, and Veltrano Capital Partners LLC (collectively, the "Agents").
We are delighted to continue our longstanding relationship with Fairwater. The Firm has had the privilege of serving as the Company's primary outside capital markets counsel since 2016 and has assisted with each of the Company's prior shelf registration statements, ATM programs, and public offerings during that period. We look forward to working with you and the broader Fairwater team on this important project.
This letter sets forth the terms and conditions of our engagement for the matters described herein. We ask that you review these terms carefully and, if they are acceptable, execute and return the enclosed copy of this letter as indicated in Section 12 below.
2. Scope of Engagement
Set forth below is a description of the specific tasks and deliverables included within the scope of this engagement. The services described in this Section 2 collectively comprise the full scope of work contemplated by this engagement, and any services falling outside of this scope will require a separate engagement letter or a written amendment to this letter, as described further in Section 2.10.
2.1 Shelf Registration Statement
The Firm will prepare and draft a universal shelf registration statement on Form S-3 for the registration of up to $2,000,000,000 in aggregate offering amount of the following classes of securities:
(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;
(iii) senior debt securities;
(iv) subordinated debt securities;
(v) depositary shares, each representing a fractional interest in a preferred share;
(vi) warrants to purchase any of the foregoing securities; and
(vii) units consisting of two or more of the foregoing securities in any combination.
The Registration Statement will be filed as an automatic shelf registration statement pursuant to Rule 462(e) under the Securities Act, consistent with the Company's current status as a "well-known seasoned issuer" (a "WKSI") under Rule 405 of the Securities Act. As a WKSI automatic shelf registration statement, the Registration Statement will become effective automatically upon filing with the SEC, and no pre-effective review by the SEC staff is expected or required.
Fairwater Operating Partnership, L.P., a Maryland limited partnership and the Company's operating partnership subsidiary ("Fairwater OP"), will be included as a co-registrant on the Registration Statement for the purpose of registering debt securities to be issued by Fairwater OP and guarantees thereof by the Company. All appropriate Fairwater OP-related disclosure, including a description of the partnership agreement, the guarantee structure, and applicable risk factors, will be incorporated into the Registration Statement and related documents.
In accordance with the Company's WKSI status, SEC filing fees will be calculated and paid on a "pay-as-you-go" basis pursuant to Rule 456(b) and Rule 457(r) under the Securities Act, thereby deferring filing fee obligations until the time of each individual takedown offering from the shelf, rather than upon the initial filing of the Registration Statement. We will coordinate with the Company's finance team regarding the mechanics and timing of such fee payments.
For reference, the Company's EDGAR filing credentials are as follows: CIK Number: 0001387204; SIC Code: 6798 (Real Estate Investment Trusts).
2.2 Base Prospectus
The Firm will draft the base prospectus forming part of the Registration Statement, which will cover all classes of registered securities described in Section 2.1 above. The base prospectus will include, among other things, the following sections and disclosures:
(i) a summary description of the Company and Fairwater OP, including their organizational structure and principal business activities;
(ii) descriptions of each type of security that may be offered under the shelf, including common shares, preferred shares, senior and subordinated debt securities, depositary shares, warrants, and units;
(iii) a description of the use of proceeds applicable to future offerings;
(iv) a plan of distribution section providing for the sale of securities through underwritten offerings, at-the-market offerings, negotiated transactions, block trades, and other customary distribution methods;
(v) risk factor cross-references to the Company's most recent Annual Report on Form 10-K and subsequent Quarterly Reports on Form 10-Q incorporated by reference into the Registration Statement, as well as any additional risk factors specific to the registered securities;
(vi) a description of the federal income tax considerations relevant to REIT qualification, including a summary of the requirements for maintaining qualification as a real estate investment trust under Sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the "Code"), and the tax consequences to holders of the various classes of securities;
(vii) a legal matters section identifying the Firm as counsel to the Company; and
(viii) an experts section referencing the independent registered public accounting firm whose reports are incorporated by reference.
The base prospectus will incorporate by reference the Company's filings under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), including its most recent Annual Report on Form 10-K, all subsequently filed Quarterly Reports on Form 10-Q and Current Reports on Form 8-K (other than information furnished and not filed), and all future filings made under Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act prior to the termination of the offering.
2.3 ATM Prospectus Supplement
The Firm will prepare a prospectus supplement to be filed with the SEC pursuant to Rule 424(b)(5) under the Securities Act in connection with a new at-the-market common share offering program with an aggregate maximum gross sales amount of up to $500,000,000 (the "ATM Program"). The ATM prospectus supplement is expected to be filed concurrently with, or promptly after, the effectiveness of the Registration Statement.
The ATM prospectus supplement will include, among other things:
(i) identification of Pemberton Zanthor & Co., Clarendon Securities LLC, and Veltrano Capital Partners LLC as the sales agents for the ATM Program;
(ii) a detailed description of the at-the-market offering mechanics, including the method by which common shares may be offered and sold through the Agents on the New York Stock Exchange or otherwise at prevailing market prices;
(iii) a description of the forward sale provisions of the ATM Program, including the terms under which the Company may enter into forward sale agreements with the Agents (or their affiliates) for the sale of common shares on a forward basis, the settlement mechanics, and applicable forward pricing adjustments;
(iv) a description of the commission structure payable to the Agents, which is anticipated to remain at a rate of up to 2.0% of the gross sales price per share sold (consistent with the prior program), subject to negotiation in connection with the Amended and Restated Equity Distribution Agreement; and
(v) all other customary disclosures, including plan of distribution, risk factors, tax considerations, dilution, and legal matters.
2.4 Amended and Restated Equity Distribution Agreement
The Firm will draft and negotiate an Amended and Restated Equity Distribution Agreement (the "Equity Distribution Agreement") among the Company, Fairwater OP, and the Agents, which will supersede in its entirety the existing Equity Distribution Agreement dated November 15, 2019, by and among the same parties, as previously amended by the First Amendment thereto dated August 5, 2022, and the Second Amendment thereto dated March 12, 2023.
The Equity Distribution Agreement will set forth the terms and conditions under which the Agents will act as the Company's sales agents in connection with the ATM Program, including, without limitation:
(i) customary representations, warranties, and covenants of the Company and Fairwater OP;
(ii) customary representations and covenants of each Agent;
(iii) the commission rate and payment mechanics;
(iv) forward sale provisions, including the mechanics of forward sale agreements and related confirmations;
(v) conditions to settlement and delivery, including bring-down certificates, comfort letters, and negative assurance letters;
(vi) indemnification and contribution provisions; and
(vii) termination mechanics.
The Firm will coordinate with Dunmore Caldwell LLP, counsel to the Agents, on the negotiation and finalization of the Equity Distribution Agreement and related closing documentation. We anticipate multiple rounds of negotiation and markup with Dunmore Caldwell LLP, and we will keep the Company apprised of the status of negotiations throughout the process.
2.5 Board Resolutions
The Firm will prepare resolutions of the Board of Trustees (the "Board") of the Company for adoption in connection with this engagement, including resolutions:
(i) authorizing the preparation, execution, and filing of the Registration Statement and the base prospectus with the SEC;
(ii) authorizing the ATM Program and the filing of the ATM prospectus supplement;
(iii) authorizing the execution and delivery of the Amended and Restated Equity Distribution Agreement;
(iv) delegating authority to designated officers of the Company (including the Chief Executive Officer, the Chief Financial Officer, and the General Counsel) to determine the timing, pricing, and other terms of offerings of securities under the shelf and the ATM Program, within parameters established by the Board; and
(v) taking such other actions as may be necessary or desirable in connection with the foregoing matters.
We anticipate that the Board resolutions will be presented for approval at a regular or special meeting of the Board to be scheduled prior to the target filing date. If necessary, the Firm will also prepare a written consent in lieu of a meeting of the Board or of a committee thereof.
2.6 Legal Opinions
The Firm will prepare the following legal opinions in connection with the Registration Statement:
(a) Validity Opinion (Exhibit 5.1). A legal opinion of the Firm, to be filed as Exhibit 5.1 to the Registration Statement, regarding the valid issuance and legally binding nature of each class of securities registered under the shelf, subject to customary assumptions, qualifications, and limitations. The validity opinion will address, as applicable, the due authorization, valid issuance, full payment, and non-assessability of the common shares and preferred shares, and the due authorization, execution, delivery, and enforceability of the debt securities, warrants, and depositary shares. Supplemental opinions will be provided as needed in connection with specific takedown offerings from the shelf.
(b) REIT Tax Opinion (Exhibit 8.1). A legal opinion of the Firm, to be filed as Exhibit 8.1 to the Registration Statement, regarding the Company's qualification as a real estate investment trust under Sections 856 through 860 of the Code for the taxable year ended December 31, 2024, and its organization and proposed method of operation such that it will continue to qualify as a REIT for subsequent taxable years. The tax opinion will be based upon and subject to customary assumptions, representations, and qualifications, including representations to be provided by the Company in a tax representation letter to be prepared by the Firm and executed by appropriate officers of the Company.
2.7 Ancillary Documents and Certificates
In addition to the foregoing deliverables, the Firm will prepare or coordinate the following ancillary documents and certificates:
(a) Secretary's Certificate. A certificate of the Secretary of the Company, certifying as to the adoption and continuing effectiveness of the Board resolutions, the incumbency and specimen signatures of officers authorized to act on behalf of the Company in connection with the Registration Statement and the ATM Program, and the authenticity of the Company's organizational documents (including the Declaration of Trust and Bylaws).
(b) CFO Officer's Certificate. A certificate of the Chief Financial Officer of the Company, to be delivered at the closing of the ATM Program and in connection with each bring-down, certifying as to the accuracy of the Company's representations and warranties in the Equity Distribution Agreement as of the applicable date, the absence of any material adverse change in the Company's financial condition or results of operations since the date of the most recently filed financial statements, and such other matters as are customary in ATM transactions.
(c) Negative Assurance (10b-5) Letter. A negative assurance letter (commonly referred to as a "10b-5 letter") of the Firm, as issuer's counsel, to the Agents, stating that, based on the Firm's review of the Registration Statement, the base prospectus, the ATM prospectus supplement, and certain documents incorporated by reference (together with participation in due diligence sessions and discussions), nothing has come to the attention of the Firm that causes the Firm to believe that such documents, as of their respective dates, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. The negative assurance letter will be subject to customary limitations, qualifications, and exclusions (including exclusions for financial statements, financial data, and other information of an accounting or financial nature).
(d) Coordination with Hargrove & Tillman LLP. The Firm will coordinate with Hargrove & Tillman LLP, the Company's independent registered public accounting firm, regarding the preparation and delivery of (i) the consent of the independent registered public accounting firm to be filed as an exhibit to the Registration Statement and (ii) the comfort letter to be addressed to the Company and the Agents in connection with the ATM Program launch and any subsequent bring-downs.
(e) Coordination with Meridian Trust Company. The Firm will coordinate with Meridian Trust Company, as the Company's transfer agent and registrar, regarding the share issuance procedures and mechanics applicable to common shares sold under the ATM Program, including book-entry delivery through the facilities of The Depository Trust Company.
2.8 SEC Correspondence and EDGAR Filing
The Firm will prepare all EDGAR filing materials necessary for the submission of the Registration Statement, the base prospectus, the ATM prospectus supplement, and all exhibits and ancillary filings with the SEC through the EDGAR filing system. This includes the preparation or review of XBRL tagging for inline XBRL requirements applicable to the Registration Statement and prospectus, coordination with the Company's EDGAR filing agent, and the preparation and submission of all required form types and filing fee exhibits (including the filing fee table pursuant to Item 16(b) of Form S-3).
In the event that the SEC staff issues comments on the Registration Statement or any related filing (which, while uncommon for WKSI automatic shelf registration statements, remains possible), the Firm will prepare draft responses to SEC staff comments, coordinate with the Company and its other advisors regarding such responses, and file any amendments to the Registration Statement or supplemental correspondence with the SEC as may be necessary to resolve any such comments.
2.9 Target Timeline
We have discussed the following target timeline with the Company, which is driven by the August 1, 2025 expiration of the Company's current shelf registration statement (File No. 333-265410):
As a WKSI automatic shelf registration statement, effectiveness of the Registration Statement is anticipated upon filing with the SEC on July 18, 2025. Accordingly, the ATM prospectus supplement will be filed under Rule 424(b)(5) on or promptly after July 18, 2025, and the ATM Program is expected to be operational immediately thereafter, subject to the completion of closing deliverables.
The foregoing timeline is subject to adjustment based on the availability of Company personnel, the timing of Board approval, the progress of negotiations with the Agents and Dunmore Caldwell LLP, and any other factors that may affect the preparation and filing of the Registration Statement and related documents. We will work closely with the Company to adhere to this timeline to the greatest extent practicable.
2.10 Scope Exclusions
This engagement does not include, and the Firm does not undertake to provide, representation or legal services in connection with any of the following matters:
(i) any specific underwritten takedown or public offering of securities from the shelf registration statement, other than the ATM Program as described in Sections 2.3 and 2.4 above (any underwritten offering would require separate engagement terms, including, as applicable, separate fee arrangements);
(ii) any litigation, arbitration, regulatory investigation, enforcement action, or other legal proceeding involving the Company or any of its affiliates;
(iii) any corporate governance matters not directly related to the shelf registration statement and the ATM Program, including but not limited to shareholder proposals, proxy contests, or Board advisory matters;
(iv) any tax advisory services beyond the preparation of the REIT tax opinion described in Section 2.6(b) above, including any tax planning, tax structuring, tax compliance, or tax controversy work; or
(v) any legal services related to the Company's ongoing Exchange Act reporting obligations (including the preparation or review of Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, or Current Reports on Form 8-K, except to the extent such filings are incorporated by reference into the Registration Statement and are reviewed by the Firm in connection with the preparation of the negative assurance letter described in Section 2.7(c)).
Any such additional matters will require a separate engagement letter or a written amendment to this letter, setting forth the scope, terms, and fee arrangements applicable to such additional representation.
3. Engagement Team
The Firm's engagement team for this matter will consist of the following professionals:
Vivienne St. Claire, Partner, Capital Markets Group — Ms. St. Claire will serve as the Responsible Partner for this engagement, with overall responsibility for the supervision and quality of all principal deliverables, strategic guidance, and client relationship management. Ms. St. Claire has represented the Company in connection with its capital markets activities for nearly a decade and has extensive experience in public REIT offerings, shelf registration statements, and ATM programs.
Robert Adeyemi, Partner, Capital Markets Group — Mr. Adeyemi will serve as the Billing Partner for this engagement, with responsibility for billing, financial administration, and invoicing. Mr. Adeyemi will also provide substantive legal services in connection with the Registration Statement, base prospectus, Equity Distribution Agreement, and related documents, and will participate in negotiations with Dunmore Caldwell LLP.
Natasha Forbes, Senior Associate, Capital Markets Group — Ms. Forbes will serve as the Lead Associate for this engagement, responsible for day-to-day management of the project, including the primary drafting of the Registration Statement, base prospectus, ATM prospectus supplement, Equity Distribution Agreement, Board resolutions, legal opinions, and ancillary documents. Ms. Forbes will be the Firm's primary point of contact for the Company's working team.
Eric Johannsen, Associate, Capital Markets Group — Mr. Johannsen will serve as a Working Associate on the engagement, assisting Ms. Forbes with drafting, legal research, due diligence review, EDGAR filing preparation, exhibit compilation, XBRL coordination, and document management.
Additional attorneys, paralegals, and professional staff from the Firm may be assigned to the engagement as needed to ensure timely and efficient delivery of services. In particular, we anticipate that one or more paralegals will assist with EDGAR filing mechanics, closing logistics, and document production.
The Company's primary day-to-day contacts at the Firm will be Natasha Forbes and Eric Johannsen, who will be available to address routine questions, coordinate document flow, and manage scheduling. Matters requiring partner-level attention, strategic direction, or escalation should be directed to Vivienne St. Claire.
4. Client Contacts
The Firm's primary client contacts for this engagement, to whom correspondence and deliverables will be directed unless otherwise instructed, are as follows:
Jonathan Delacroix, Executive Vice President, General Counsel and Secretary — Mr. Delacroix will serve as the primary client contact for all corporate governance and legal matters, including Board resolutions, officer's certificates, organizational documents, and overall transaction oversight and approval.
Sandra Ellerby, Senior Vice President, Capital Markets and Treasurer — Ms. Ellerby will serve as the day-to-day working contact for the ATM Program, capital markets coordination, Agent communications, business terms of the Equity Distribution Agreement, and scheduling and logistics related to the ATM Program.
Priya Ranganathan, Executive Vice President and Chief Financial Officer — Ms. Ranganathan will serve as the Firm's contact for financial matters, including the preparation and execution of the CFO Officer's Certificate, the coordination of the comfort letter with Hargrove & Tillman LLP, financial disclosure review, and any financial diligence inquiries.
We will rely on the foregoing individuals to provide instructions and approvals on behalf of the Company in connection with this engagement. If the Company wishes to designate additional contacts or change the foregoing contact structure at any time, please advise us in writing.
5. Fee Arrangement
5.1 Hourly Rates
Professional services rendered by the Firm in connection with this engagement will be billed on an hourly basis at the following current standard hourly rates for the identified members of the engagement team:
The foregoing rates are the Firm's current standard rates as of the date of this letter. The Firm's standard billing rates are subject to periodic adjustment, generally on an annual basis effective January 1 of each year. The Company will be notified in advance of any changes to the applicable rates. If additional attorneys or professionals are assigned to the engagement, they will be billed at their then-current standard hourly rates, which will be communicated to the Company at the time of their assignment.
5.2 Fee Estimate
Based on our current understanding of the scope of the engagement as described in Section 2 above, and drawing upon our experience with the Company's prior shelf registration renewals and ATM program updates, we estimate that total legal fees for the shelf registration renewal and ATM program update will be in the range of $175,000 to $225,000.
This estimate is provided for budgeting purposes only and does not constitute a cap, fixed fee, or guaranteed maximum. The actual fees incurred will depend upon the time and effort required to complete the engagement, and may vary from the estimate based on a number of factors, including but not limited to the following:
(i) the complexity and number of rounds of negotiation of the Equity Distribution Agreement with Dunmore Caldwell LLP and the Agents;
(ii) whether the SEC staff issues comments on the Registration Statement or any related filing, and the nature and extent of any such comments;
(iii) the extent of revisions requested by the Company or its other advisors;
(iv) any material changes in the Company's business, financial condition, or organizational structure that require additional disclosure or analysis; and
(v) any changes in applicable law, SEC rules, or market practice that require modifications to the Registration Statement or related documents.
The estimate is exclusive of disbursements, out-of-pocket expenses, and filing fees, including any SEC filing fees, EDGAR filing agent charges, printing costs, and similar third-party expenses.
The estimate further does not include fees for any future services that may be requested by the Company beyond the initial scope of this engagement, including but not limited to (i) any underwritten takedown offering from the shelf, (ii) any settlement of forward sale agreements under the ATM Program, (iii) any ATM bring-down deliverables (including bring-down negative assurance letters, bring-down comfort letters, and bring-down officer's certificates) beyond the initial closing deliverables at program launch, or (iv) any amendments or supplements to the Registration Statement or ATM prospectus supplement filed after the initial closing.
If at any time during the engagement we believe that actual fees are likely to materially exceed the estimated range, we will promptly notify the Company and discuss the reasons for the variance and any appropriate steps to manage costs.
5.3 Disbursements and Expenses
In addition to professional fees, the Company will be responsible for reimbursement of all out-of-pocket disbursements and expenses reasonably incurred by the Firm in connection with the engagement, including but not limited to:
(i) travel expenses (airfare, lodging, ground transportation, and meals), to the extent business travel is required;
(ii) photocopying and document reproduction;
(iii) telecommunications charges, including long-distance telephone calls and conference call services;
(iv) overnight delivery, courier, and postage charges;
(v) EDGAR filing agent fees and related electronic filing charges;
(vi) charges for online legal research services (e.g., Westmark Data Systems and EDGAR online tools), to the extent directly attributable to this engagement; and
(vii) other similar charges incurred in the ordinary course of the engagement.
SEC filing fees will be calculated at the time of each takedown offering on a pay-as-you-go basis pursuant to Rule 456(b) and Rule 457(r) under the Securities Act and are the sole responsibility of the Company. The Firm will assist the Company in calculating applicable filing fee amounts and coordinating payment with the SEC, but the Company will be responsible for remitting all such fees directly.
6. Billing and Payment Terms
Invoices for professional services and disbursements incurred in connection with this engagement will be rendered on a monthly basis, generally within fifteen (15) business days following the end of each calendar month. Each invoice will include reasonable detail regarding the nature of the services performed, the identity of the professionals who performed them, the time expended, and the disbursements incurred during the billing period.
Payment of each invoice is due within thirty (30) days of the date of such invoice. Payments should be remitted to Calderwood & Harkness LLP by wire transfer or check to the account specified on the invoice. Please reference Matter Number 1036-00002 on all correspondence and payments relating to this engagement.
The billing partner for this matter is Robert Adeyemi. Any questions regarding invoices, billing matters, or fee arrangements should be directed to Mr. Adeyemi at (202) 555-7124 or radeyemi@calderwoodharkness.com.
7. Confidentiality
The Firm recognizes the sensitive and confidential nature of the information that the Company will provide to us in connection with this engagement. The Firm will maintain the confidentiality of all non-public information provided by or on behalf of the Company, and will not disclose such information to any third party except as permitted or required by applicable professional responsibility rules (including the Maryland Lawyers' Rules of Professional Conduct), applicable law or regulation, court order, or with the Company's prior written consent.
The Company acknowledges that certain information that is currently non-public may be required to be disclosed in the Registration Statement, the base prospectus, the ATM prospectus supplement, and related public filings with the SEC in accordance with the requirements of the Securities Act, the Exchange Act, and applicable SEC rules and regulations. The Firm will consult with the Company regarding the nature and extent of such disclosures, but the Company understands that compliance with applicable securities laws may necessitate public disclosure of information that would otherwise be treated as confidential.
The Firm's confidentiality obligations under this Section 7 will survive the termination or expiration of this engagement.
8. Conflicts of Interest
The Firm has conducted a conflicts of interest check in accordance with its standard procedures and the applicable rules of professional conduct. Based on the results of that check, the Firm is not currently aware of any conflict of interest that would preclude or materially limit our representation of the Company in connection with this engagement.
In the event that a conflict of interest arises during the course of the engagement, or if the Firm becomes aware of a potential conflict, the Firm will promptly notify the Company and take appropriate steps in accordance with the applicable rules of professional conduct, which may include seeking the Company's informed written consent to the conflict (where consent is permissible), implementing appropriate screening measures, or, if necessary, withdrawing from the engagement or a portion thereof.
The Firm confirms that it does not represent Pemberton Zanthor & Co., Clarendon Securities LLC, or Veltrano Capital Partners LLC, or their respective affiliates, in any matter related to this engagement. The Firm further confirms that it does not represent Dunmore Caldwell LLP, counsel to the Agents, in any matter. The Firm's representation in this engagement is limited to the Company and Fairwater OP, as described herein.
9. Document Retention
The Firm will maintain all files, documents, and records related to this engagement in accordance with the Firm's standard document retention policies, which provide for the retention of client files for a period of not less than seven (7) years following the completion of the engagement, unless a longer retention period is required by applicable law or regulation.
Upon completion or termination of the engagement, original documents and instruments belonging to the Company (including original signed agreements, certificates, and organizational documents) will be returned to the Company upon written request. The Firm's own work product, internal memoranda, research files, drafts, and administrative records will be retained by the Firm in accordance with its retention schedule and will remain the property of the Firm, subject to the Company's right to request copies of work product as reasonably necessary.
The Company acknowledges that, after the expiration of the applicable retention period, the Firm may destroy engagement files without further notice to the Company, unless the Company has made prior arrangements with the Firm for the transfer or extended preservation of such files.
10. Termination
Either the Company or the Firm may terminate this engagement at any time upon written notice to the other party. Any such termination will be subject to the Firm's obligations under applicable professional responsibility rules, including the obligation to take reasonable steps to avoid prejudice to the Company's interests, to provide reasonable notice, and to allow time for the retention of successor counsel.
In the event of termination, the Company will remain responsible for the payment of all professional fees earned and disbursements incurred by the Firm through the effective date of termination. The Firm will render a final invoice promptly following the termination date, and payment thereof will be due within thirty (30) days in accordance with Section 6.
Upon termination, the Firm will cooperate with the Company and any successor counsel in connection with the orderly transition of the engagement, including the transfer of relevant files and work product, subject to any outstanding fee balances and applicable liens.
11. Limitation of Engagement
Our representation of the Company pursuant to this letter is limited to the specific matters described in Section 2 above. We do not undertake to advise the Company with respect to any other legal matter, transaction, or proceeding unless we are separately engaged to do so pursuant to a written engagement letter or amendment.
Our legal advice in connection with this engagement is based on the federal and state laws, regulations, rules, and interpretations in effect as of the dates on which such advice is rendered. We assume no obligation to update, supplement, or revise our advice, opinions, or work product to reflect subsequent changes in applicable law, regulation, SEC staff guidance, or market practice, unless we are specifically engaged by the Company to do so.
Nothing in this letter creates any obligation on the part of the Firm to represent the Company in any matter other than those described herein, and nothing in this letter guarantees the availability of the Firm or any individual attorney for any future engagement.
12. Acceptance
We are pleased to have the opportunity to continue our representation of Fairwater Real Estate Investment Trust and look forward to working with you on this important project. Please confirm the Company's agreement to the terms and conditions set forth in this engagement letter by having an authorized representative of the Company sign and date the enclosed duplicate original of this letter in the space provided below and return it to the Firm at your earliest convenience.
If you have any questions regarding the terms of this letter or any other aspect of the proposed engagement, please do not hesitate to contact me directly at (202) 555-7118 or vstclaire@calderwoodharkness.com.
We look forward to getting started.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Vivienne St. Claire Partner, Capital Markets Group Calderwood & Harkness LLP
AGREED AND ACCEPTED:
FAIRWATER REAL ESTATE INVESTMENT TRUST
By: ________
Name: Jonathan Delacroix
Title: Executive Vice President, General Counsel and Secretary
Date: ________
Enclosure: Duplicate original for countersignature and return
cc:
Margaret Chen-Whitfield, Chief Executive Officer & Chairperson, Board of Trustees, Fairwater Real Estate Investment Trust
Priya Ranganathan, Executive Vice President & Chief Financial Officer, Fairwater Real Estate Investment Trust
Sandra Ellerby, Senior Vice President, Capital Markets & Treasurer, Fairwater Real Estate Investment Trust
Robert Adeyemi, Partner, Calderwood & Harkness LLP
Natasha Forbes, Senior Associate, Calderwood & Harkness LLP
Milestone | Target Date
Circulation of initial drafts of Registration Statement, base prospectus, and ATM prospectus supplement to Company for review | Week of June 23, 2025
Circulation of draft Equity Distribution Agreement to Company for review | Week of June 30, 2025
Distribution of draft Equity Distribution Agreement to Dunmore Caldwell LLP (Agents' counsel) | Week of July 7, 2025
Board meeting for approval of Registration Statement and ATM Program | On or before July 14, 2025
Target SEC filing date for Registration Statement (automatic shelf effectiveness upon filing) | July 18, 2025
Filing of ATM prospectus supplement under Rule 424(b)(5) | On or promptly after July 18, 2025
Execution and delivery of Equity Distribution Agreement and initial ATM closing deliverables | On or promptly after July 18, 2025
Professional | Role | Hourly Rate
Vivienne St. Claire | Partner | $1,350
Robert Adeyemi | Partner | $1,275
Natasha Forbes | Senior Associate | $875
Eric Johannsen | Associate | $650
Paralegals | — | $425

CONFIDENTIAL — ATTORNEY-CLIENT PRIVILEGED

CALDERWOOD & HARKNESS LLP

AGREED AND ACCEPTED:

FAIRWATER REAL ESTATE INVESTMENT TRUST

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