AMENDED AND RESTATED OPERATING AGREEMENT

AMENDED AND RESTATED OPERATING AGREEMENT
OF
HARBOR POINT DEVELOPMENT JV, LLC
A Delaware Limited Liability Company
Dated as of January 12, 2026
This Amended and Restated Operating Agreement amends and restates in its entirety the original Operating Agreement of Harbor Point Development JV, LLC dated as of the date hereof.
RECITALS
WHEREAS, Harbor Point Development JV, LLC, a Delaware limited liability company (the "Company"), was formed by the filing of a Certificate of Formation with the Secretary of State of the State of Delaware on November 18, 2025, and Incorporators & Associates, Inc., located at 1209 Orange Street, Wilmington, Delaware 19801, serves as the registered agent of the Company in the State of Delaware;
WHEREAS, the Company has applied for, and has been assigned, an Employer Identification Number of 84-6213950 by the Internal Revenue Service;
WHEREAS, the Company has been qualified to do business as a foreign limited liability company in the State of Maryland, having filed the requisite documents with the Maryland State Department of Assessments and Taxation ("MD SDAT");
WHEREAS, the members of the Company (the "Members") desire to amend and restate the Operating Agreement of the Company in its entirety to set forth their respective rights, obligations, and the governance of the Company in connection with the acquisition, development, construction, leasing, management, operation, and ultimate disposition of a Class A mixed-use project known as "Harbor Point Towers," consisting of two twenty-eight (28)-story residential towers containing approximately six hundred ten (610) residential units and approximately forty-five thousand (45,000) square feet of ground-floor retail space, to be constructed on an approximately 8.2-acre waterfront site located at 1500–1580 Wills Street, Baltimore, Maryland 21231 (Block 7419, Lots 1–6, Baltimore City) (the "Project");
WHEREAS, the total cost of the Project is estimated to be Five Hundred Seventy-Six Million Dollars ($576,000,000), consisting of (i) Land Acquisition costs of Fifty-Four Million Dollars ($54,000,000), (ii) Hard Costs of Four Hundred Thirty-Two Million Dollars ($432,000,000), and (iii) Soft Costs of Ninety Million Dollars ($90,000,000);
WHEREAS, the Members intend to fund the Project through (i) total joint venture equity of Two Hundred Forty Million Dollars ($240,000,000) and (ii) a construction loan facility in the amount of Three Hundred Thirty-Six Million Dollars ($336,000,000) to be provided by Meridian National Bank, N.A. (the "Construction Lender");
WHEREAS, Fairwater HP Manager, LLC, a Maryland limited liability company and a wholly owned subsidiary of Fairwater Real Estate Investment Trust, a Maryland real estate investment trust publicly traded on the New York Stock Exchange under the ticker symbol "FWT" ("Fairwater REIT"), shall serve as the Managing Member of the Company;
WHEREAS, Prescott HP Investor, LLC, a Delaware limited liability company and a wholly owned subsidiary of Prescott Capital Partners, LP, a Delaware limited partnership (Fund IV, with approximately $3.8 billion in committed capital, 2023 vintage), shall serve as the Non-Managing Member of the Company;
WHEREAS, the site on which the Project is to be developed is to be acquired from Harbor East Land Holdings, LLC, a Maryland limited liability company, whose sole member is Vincent A. DeLuca (the "Seller"), at a purchase price of Fifty-Four Million Dollars ($54,000,000), with a target land closing date of January 30, 2026;
WHEREAS, the Project has received Planned Unit Development ("PUD") approval from Baltimore City, granted on June 14, 2024, pursuant to Ordinance No. 24-0417, and building permits for the Project are expected to be issued in the first quarter of 2026; and
WHEREAS, the Members desire to enter into this Amended and Restated Operating Agreement to memorialize the terms and conditions upon which they will conduct business through the Company.
NOW, THEREFORE, in consideration of the mutual covenants, agreements, representations, and warranties set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Members hereby agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1 — Defined Terms
As used in this Agreement, the following terms shall have the meanings set forth below. Capitalized terms used but not defined herein shall have the meanings ascribed to them elsewhere in this Agreement.
"Adjusted Capital Account" means, with respect to any Member, such Member's Capital Account as maintained under Section 704(b) of the Code and the Treasury Regulations promulgated thereunder, as adjusted for any items described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5), and (6).
"Affiliate" means, with respect to any Person, (a) any other Person directly or indirectly controlling, controlled by, or under common control with such Person, (b) any officer, director, general partner, managing member, or trustee of such Person, or (c) any Person that is an officer, director, general partner, managing member, or trustee of any Person described in clause (a) or (b) above. For purposes of this definition, "control" (including the terms "controlling," "controlled by," and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
"Agreement" means this Amended and Restated Operating Agreement, as the same may be further amended, modified, supplemented, or restated from time to time in accordance with the terms hereof.
"Approved Budget" means the annual project budget as approved by both Members pursuant to Section 7.3 of this Agreement, as the same may be amended from time to time in accordance with the terms hereof. The initial Approved Budget is attached hereto as Exhibit K.
"Budget Variance Threshold" means five percent (5%) of any budgeted line item in the Approved Budget.
"Capital Account" means, with respect to each Member, the capital account maintained for such Member in accordance with the rules set forth in Treasury Regulation Section 1.704-1(b)(2)(iv), as further described in Section 4.6 hereof.
"Capital Call" means a request by the Managing Member for additional Capital Contributions from the Members pursuant to Section 4.2 of this Agreement.
"Capital Call Notice Period" means fifteen (15) business days following delivery of a Capital Call notice by the Managing Member to the Members.
"Capital Contribution" means, with respect to each Member, the aggregate amount of cash and the fair market value of any property contributed (or deemed contributed) by such Member to the Company.
"Capital Contribution Agreement" means the Capital Contribution Agreement dated as of January 12, 2026, by and among the Company and the Members, setting forth the irrevocable capital commitment obligations of the Members.
"Capital Event" means any sale, exchange, involuntary conversion, condemnation, or other disposition of all or a material portion of the Company Property, and any refinancing of all or a material portion of the indebtedness of the Company, and any receipt of insurance proceeds (other than business interruption insurance proceeds applied to operations).
"Catch-Up" means the distribution tier described in Section 6.2(c) of this Agreement.
"Certificate of Formation" means the Certificate of Formation of the Company as filed with the Secretary of State of the State of Delaware on November 18, 2025, as the same may be amended from time to time.
"Code" means the Internal Revenue Code of 1986, as amended from time to time, or any corresponding federal tax statute enacted after the date of this Agreement. A reference to a specific provision of the Code refers not only to such specific provision but also to any corresponding provision of any federal tax statute enacted after the date of this Agreement, as such specific provision or corresponding provision is in effect on the date of application of the provisions of this Agreement containing such reference.
"Company" means Harbor Point Development JV, LLC, a Delaware limited liability company.
"Company Property" means the approximately 8.2-acre site located at 1500–1580 Wills Street, Baltimore, Maryland 21231 (Block 7419, Lots 1–6, Baltimore City), together with all improvements, structures, fixtures, personal property, permits, entitlements, intangible rights, and appurtenances now or hereafter located thereon or associated therewith.
"Completion Guaranty" means the guaranty of completion of the Project provided by Fairwater REIT in favor of the Construction Lender, guaranteeing lien-free completion of the Project in accordance with the plans and specifications approved by the Construction Lender.
"Construction Lender" means Meridian National Bank, N.A., a national banking association, or any successor lender under the Construction Loan.
"Construction Loan" means the construction loan facility in the original principal amount of Three Hundred Thirty-Six Million Dollars ($336,000,000) to be provided by the Construction Lender to the Company, the material terms of which are summarized in Exhibit L attached hereto.
"Default Cure Period" means thirty (30) days after written notice of a material default is delivered by the non-defaulting Member to the defaulting Member, provided that if such default is of a nature that cannot reasonably be cured within such thirty (30)-day period, the defaulting Member shall have such additional time as may be reasonably necessary to cure such default so long as the defaulting Member commences the cure within such thirty (30)-day period and diligently prosecutes the same to completion, but in no event longer than ninety (90) days from the date of the initial notice.
"Defaulting Member" has the meaning set forth in Section 4.4 of this Agreement.
"Delaware LLC Act" means the Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et seq., as amended from time to time.
"Development Management Agreement" means the Development Management Agreement dated as of January 12, 2026, between the Company and Fairwater REIT (or its designee), pursuant to which Fairwater REIT shall provide development management services for the Project in consideration for the Development Management Fee.
"Development Management Fee" means a fee equal to three and one-half percent (3.5%) of Hard Costs, which, based on the current Approved Budget, equals Fifteen Million One Hundred Twenty Thousand Dollars ($15,120,000), payable in accordance with Section 7.6(a) of this Agreement.
"Disposition Fee" means a fee equal to one percent (1.0%) of the gross sale price of the Company Property (or any portion thereof) upon a sale or other disposition, payable to Fairwater REIT (or its designee) at the closing of such disposition, as set forth in Section 7.6(c) of this Agreement.
"Effective Date" means January 12, 2026.
"Effective Gross Revenue" or "EGR" means, for any period, the gross revenues generated by the Project from all sources (including residential rents, retail rents, parking income, and all other ancillary revenue) during such period, less vacancy and credit losses for such period.
"Environmental Indemnity Agreement" means the Environmental Indemnity Agreement to be executed by the Company and Fairwater REIT in favor of the Construction Lender in connection with the Construction Loan.
"Fair Market Value" or "FMV" means the fair market value of the Company Property or a Membership Interest, as applicable, determined pursuant to the appraisal mechanism set forth in Section 12.4 of this Agreement or, if the Members agree, by mutual written agreement of the Members.
"Fairwater" or "Fairwater REIT" means Fairwater Real Estate Investment Trust, a Maryland real estate investment trust, publicly traded on the New York Stock Exchange under the ticker symbol "FWT" (EIN: 52-2198437; MD SDAT ID: D19847321).
"Fairwater Manager" or "Managing Member" means Fairwater HP Manager, LLC, a Maryland limited liability company (EIN: 52-2201889), whose sole member is Fairwater Real Estate Investment Trust.
"Fiscal Year" means the calendar year, or any shorter period beginning on the Effective Date and ending on December 31 of such year, or beginning on January 1 of any year and ending on the date of the Company's dissolution.
"GMP Contract" means the Guaranteed Maximum Price construction contract to be entered into between the Company and the General Contractor for the construction of the Project.
"General Contractor" means Pinnacle General Contractors, Inc., a Maryland corporation.
"Hard Costs" means the hard construction costs of the Project, budgeted at Four Hundred Thirty-Two Million Dollars ($432,000,000) in the Approved Budget, consisting of all costs of labor, materials, equipment, and related items directly attributable to the physical construction of the Project improvements.
"Initial Capital Call" means the initial capital call in the aggregate amount of Sixty Million Dollars ($60,000,000), representing twenty-five percent (25%) of Total Equity, to be funded by the Members at or prior to the land closing.
"Interest Reserve" means Twenty-Nine Million Four Hundred Thousand Dollars ($29,400,000), which is included in Soft Costs and reserved for the payment of interest on the Construction Loan during the construction period.
"IRR" or "Internal Rate of Return" means the annual rate of return that, when used as a discount rate, causes the net present value of all Capital Contributions by a Member (or all Members, in the case of Project IRR) to equal the net present value of all distributions received by such Member (or all Members), using a daily compounding convention and calculated from the date of each Capital Contribution to the date of each distribution using standard discounted cash flow methodology.
"JV Accountant" means Alderman & Fields, CPAs, LLP, whose engagement partner for the Company is Robert E. Alderman, CPA.
"Key Persons" means Harold K. Brennan, CEO and Chairman of Fairwater REIT, and Marcus D. Okonkwo, Executive Vice President, Development, of Fairwater REIT.
"Key-Person Event" means the departure, death, disability, resignation, termination, or other cessation of active and substantial involvement in the management and oversight of the Project by both Key Persons without the appointment of replacement Key Persons approved by Prescott Investor within ninety (90) days following such departure, as more fully described in Article VIII of this Agreement.
"Land" means the approximately 8.2-acre parcel of real property located at 1500–1580 Wills Street, Baltimore, Maryland 21231 (Block 7419, Lots 1–6, Baltimore City), to be acquired by the Company from the Seller.
"Land Acquisition Price" means Fifty-Four Million Dollars ($54,000,000), which is the purchase price to be paid by the Company to the Seller for the acquisition of the Land.
"Lockout Period" means the period commencing on the Effective Date and ending on the fifth (5th) anniversary of the Effective Date (i.e., January 12, 2031), during which neither Member may initiate the buy-sell procedures set forth in Article XII.
"Major Decision" means any of the actions or decisions described in Section 7.2 of this Agreement, each of which requires the prior written consent of the Non-Managing Member.
"Member" or "Members" means Fairwater HP Manager, LLC and Prescott HP Investor, LLC, and any Person admitted as a substitute or additional Member in accordance with this Agreement.
"Membership Interest" means, with respect to a Member, such Member's entire interest in the Company, including such Member's right to share in allocations and distributions, together with such Member's rights to participate in the management of the Company as provided in this Agreement and the Delaware LLC Act.
"Net Cash Flow" means, for any period, the gross revenues of the Company from all sources during such period, less (a) all operating expenses of the Company for such period (including management fees, administrative expenses, and taxes), (b) debt service payments (principal and interest) on all Company indebtedness, (c) amounts set aside as reserves for operations, capital expenditures, and contingencies as determined by the Managing Member in its reasonable discretion (subject to the Approved Budget), and (d) capital expenditures made during such period.
"Net Income" and "Net Loss" mean, for each Fiscal Year or other period, the taxable income or loss of the Company for such year or period as determined for federal income tax purposes, with such adjustments as are required by Treasury Regulation Section 1.704-1(b)(2)(iv).
"Non-Managing Member" or "Prescott Investor" means Prescott HP Investor, LLC, a Delaware limited liability company (EIN: 13-4603217), whose sole member is Prescott Capital Partners, LP.
"Operating Partner" means Fairwater REIT, or Fairwater HP Manager, LLC, as the context requires.
"Partnership Representative" means Fairwater HP Manager, LLC, in its capacity as the "partnership representative" of the Company for purposes of Subchapter C of Chapter 63 of the Code, as amended by the Bipartisan Budget Act of 2015.
"Percentage Interest" means, with respect to each Member, the percentage interest in the Company as set forth on Exhibit A attached hereto, being thirty percent (30%) for Fairwater Manager and seventy percent (70%) for Prescott Investor, as such percentages may be adjusted from time to time in accordance with this Agreement.
"Permitted Transfer" has the meaning set forth in Section 10.2 of this Agreement.
"Person" means an individual, corporation, partnership, limited liability company, trust, estate, association, governmental authority, or any other entity.
"Preferred Return" means a nine percent (9.0%) per annum internal rate of return, compounded quarterly, on each Member's Unreturned Capital, as more fully described in Section 6.2(b) of this Agreement.
"Prescott" or "Prescott Capital Partners" means Prescott Capital Partners, LP, a Delaware limited partnership (EIN: 13-4587612).
"Prescott Investor" or "Non-Managing Member" has the meaning set forth above.
"Project" means the mixed-use development known as "Harbor Point Towers," as more fully described in the Recitals and in Exhibit B attached hereto.
"Project IRR" means the internal rate of return computed on a project-level basis using all invested equity of both Members as inflows and all distributions to both Members as outflows, calculated using the same methodology as IRR.
"Promote" means the enhanced distributions payable to the Managing Member under the Catch-Up (Tier 3) and the residual split tiers (Tiers 4 and 5) of the distribution waterfall set forth in Section 6.2, to the extent such distributions exceed the Managing Member's pro rata share based on its Percentage Interest.
"Property Management Agreement" means the Property Management Agreement to be entered into between the Company and Fairwater REIT (or its designee) following Stabilization, pursuant to which Fairwater REIT shall provide property management services for the Project in consideration for the Property Management Fee.
"Property Management Fee" means a fee equal to three percent (3.0%) of Effective Gross Revenue, payable monthly in arrears following Stabilization, as set forth in Section 7.6(b) of this Agreement.
"Recourse Carve-Out Guaranty" means the guaranty provided by Fairwater REIT in favor of the Construction Lender covering standard non-recourse carve-out matters, including fraud, misapplication of funds, voluntary bankruptcy, environmental liability, and other customary "bad boy" triggers.
"REIT" means a real estate investment trust as defined in Sections 856 through 860 of the Code.
"REIT Compliance Side Letter" means the REIT Compliance Side Letter dated as of January 12, 2026, between Fairwater Manager and Prescott Investor, supplementing the REIT compliance provisions of Article XIV hereof.
"REIT Savings Provisions" has the meaning set forth in Article XIV of this Agreement.
"ROFO" or "Right of First Offer" means the right of first offer set forth in Section 10.3 of this Agreement.
"ROFO Period" means sixty (60) days following delivery of a ROFO notice.
"Second Promote Tier" means the residual distribution split described in Section 6.2(e), being thirty percent (30%) to Fairwater Manager and seventy percent (70%) to Prescott Investor, applicable when the Project IRR exceeds fifteen percent (15%).
"Seller" means Harbor East Land Holdings, LLC, a Maryland limited liability company, whose sole member is Vincent A. DeLuca.
"Soft Costs" means the soft costs of the Project, budgeted at Ninety Million Dollars ($90,000,000) in the Approved Budget, consisting of design fees, architectural and engineering fees, permitting costs, legal fees, accounting fees, title and survey costs, insurance costs, interest carry (including the Interest Reserve of $29,400,000), loan fees, development management fees, marketing and pre-leasing costs, and all other costs that are not Hard Costs or Land Acquisition costs.
"Stabilization" means the date on which the residential component of the Project first achieves and maintains for a period of ninety (90) consecutive days a physical occupancy rate of at least ninety-three percent (93%) of all residential units.
"Substantial Completion" means "substantial completion" as such term is defined in the GMP Contract.
"Tax Protection Agreement" means the Tax Protection Agreement dated as of January 12, 2026, among the Company, Fairwater Manager, and Prescott Investor.
"Title Insurer" means Tidewater Insurance Group, Inc.
"Total Equity" means Two Hundred Forty Million Dollars ($240,000,000), being the total equity capital to be contributed by the Members to the Company.
"Total Project Cost" means Five Hundred Seventy-Six Million Dollars ($576,000,000), being the total estimated cost of the Project, consisting of the Land Acquisition Price, Hard Costs, and Soft Costs.
"Transfer" means any direct or indirect sale, assignment, conveyance, transfer, pledge, hypothecation, encumbrance, gift, or other disposition (whether voluntary or involuntary, by operation of law, or otherwise) of all or any portion of a Membership Interest or any interest therein (including any economic interest), or any agreement to do any of the foregoing.
"Treasury Regulations" means the regulations (including temporary and proposed regulations) promulgated by the United States Department of the Treasury under the Code, as such regulations may be amended from time to time.
"Unreturned Capital" means, with respect to any Member, as of any date of determination, such Member's aggregate Capital Contributions to the Company as of such date, reduced (but not below zero) by all prior distributions to such Member that constitute a return of capital under Tier 1 of the distribution waterfall set forth in Section 6.2(a).
Section 1.2 — Rules of Construction
(a) Unless the context otherwise requires, references in this Agreement to (i) "Articles," "Sections," and "Exhibits" refer to Articles, Sections, and Exhibits of this Agreement, (ii) the singular includes the plural and vice versa, (iii) masculine pronouns include the feminine and neuter, and (iv) "include," "including," and similar terms are not limiting.
(b) References to the Code, the Delaware LLC Act, or any other statute or regulation include all amendments thereto and any successor statutes and regulations.
(c) References to Treasury Regulations include both final and, to the extent not superseded by final Treasury Regulations, temporary Treasury Regulations.
(d) The headings and captions in this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement.
(e) The terms "hereof," "herein," "hereby," "hereto," and "hereunder" and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement.
(f) References to "days" mean calendar days unless "business days" is expressly specified.
(g) All monetary amounts are in United States Dollars unless otherwise specified.
(h) The Exhibits and Schedules to this Agreement are incorporated by reference and made a part hereof as if set forth in full herein.
ARTICLE II — ORGANIZATION
Section 2.1 — Formation
The Members hereby confirm that the Company was duly formed as a Delaware limited liability company under the Delaware Limited Liability Company Act, 6 Del. C. § 18-101 et seq., by the filing of a Certificate of Formation with the Secretary of State of the State of Delaware on November 18, 2025. The legal name of the Company is "Harbor Point Development JV, LLC." The rights, powers, duties, obligations, and liabilities of the Members shall be determined pursuant to the Delaware LLC Act and this Agreement. To the extent that the rights, powers, duties, obligations, and liabilities of any Member are different by reason of any provision of this Agreement than they would be under the Delaware LLC Act in the absence of such provision, this Agreement shall, to the extent permitted by the Delaware LLC Act, control.
Section 2.2 — Name
The name of the Company is "Harbor Point Development JV, LLC." The Company may conduct business under such name and under such trade names, assumed names, or fictitious names as the Managing Member may determine from time to time, subject to the prior written consent of the Non-Managing Member. The Managing Member shall file or cause to be filed any trade name certificates or other registrations required by applicable law.
Section 2.3 — Registered Office and Registered Agent
(a) Delaware. The registered office of the Company in the State of Delaware is located at 1209 Orange Street, Wilmington, Delaware 19801, and the registered agent of the Company for service of process at such address is Incorporators & Associates, Inc. The Managing Member may change the registered office or registered agent from time to time by filing the appropriate amendment with the Secretary of State of the State of Delaware and providing notice to the Non-Managing Member.
(b) Maryland. The Company has qualified to do business as a foreign limited liability company in the State of Maryland by filing the requisite documents with the Maryland State Department of Assessments and Taxation. The Company shall maintain a registered agent in the State of Maryland as required by Maryland law.
Section 2.4 — Principal Office
The principal office of the Company shall be located at the address of the Managing Member's parent entity: 7200 Pratt Street, Suite 1400, Baltimore, Maryland 21202, or at such other address as the Managing Member may designate from time to time by written notice to the Non-Managing Member. The books and records of the Company shall be maintained at such principal office, subject to the inspection rights set forth in this Agreement and the Delaware LLC Act.
Section 2.5 — Purpose
The purpose of the Company is to:
(a) acquire the Land from the Seller at the Land Acquisition Price;
(b) develop, design, construct, and complete the Project on the Company Property in accordance with the plans and specifications approved by the Members and the Construction Lender;
(c) obtain the Construction Loan from Meridian National Bank, N.A. to finance a portion of the Total Project Cost;
(d) enter into the GMP Contract with Pinnacle General Contractors, Inc. for the construction of the Project;
(e) lease, market, manage, and operate the Project following Substantial Completion;
(f) ultimately dispose of the Company Property at such time and on such terms as are determined by the Members in accordance with this Agreement; and
(g) engage in any and all activities that are incidental, necessary, or related to any of the foregoing purposes, including, without limitation, the execution and delivery of agreements, instruments, and documents; the employment of agents, managers, contractors, and consultants; the borrowing and lending of money; the investment of Company funds; and the taking of any other actions as may be necessary or appropriate to accomplish the foregoing purposes.
The Company shall not engage in any business or activity other than as set forth in this Section 2.5 without the prior written consent of both Members.
Section 2.6 — Term
The term of the Company commenced on the date of the filing of the Certificate of Formation with the Secretary of State of the State of Delaware and shall continue in perpetual existence unless the Company is earlier dissolved in accordance with Article XIII of this Agreement. The existence of the Company as a separate legal entity shall continue until the cancellation of the Certificate of Formation.
Section 2.7 — Qualification in Other Jurisdictions
The Company shall qualify to do business as a foreign limited liability company in the State of Maryland and in any other jurisdiction where the nature of its business or the ownership of its property requires such qualification. The Managing Member is authorized and directed to take all actions necessary to effect such qualifications, including the filing of all required documents with the appropriate governmental authorities.
Section 2.8 — No State-Law Partnership
The Members intend that the Company shall not be a partnership (including a limited partnership) or a joint venture for purposes of any state or local law, and no Member shall be considered a partner or joint venturer of any other Member for any such purpose. This Section 2.8 shall not affect the classification of the Company as a partnership for federal and state income tax purposes.
Section 2.9 — Title to Property
All real and personal property owned by the Company shall be owned by the Company as an entity, and no Member, individually, shall have any ownership interest in any Company property. Title to Company property shall be held in the name of the Company or in the name of a nominee or agent designated by the Managing Member with the consent of the Non-Managing Member. Each Member's Membership Interest shall be personal property for all purposes.
ARTICLE III — MEMBERS; MEMBERSHIP INTERESTS
Section 3.1 — Members
The names, addresses, Membership Interest designations, and Percentage Interests of the Members as of the Effective Date are as follows:
The Members' Capital Commitments and Initial Capital Call amounts are set forth on Exhibit A attached hereto.
Section 3.2 — Nature of Membership Interests
The Membership Interests of the Members shall constitute personal property. No Member has any interest in any specific Company property. Each Member's Membership Interest shall include such Member's right to receive allocations and distributions in accordance with this Agreement, and such Member's right to participate in the management of the Company's business and affairs as provided herein and in the Delaware LLC Act. Membership Interests may not be represented by certificates unless the Members otherwise agree in writing.
Section 3.3 — No Additional Members
No additional Members shall be admitted to the Company without the prior written consent of both Members, which admission shall constitute a Major Decision pursuant to Section 7.2(f) of this Agreement. Any such admission shall be conditioned upon the execution and delivery by the proposed additional Member of such documents and instruments as the existing Members may reasonably require, including an amendment to this Agreement and such Member's joinder hereto.
Section 3.4 — Representations and Warranties of Each Member
(a) Mutual Representations. Each Member hereby represents and warrants to the Company and to the other Member, as of the Effective Date, as follows:
(i) such Member is duly formed, validly existing, and in good standing under the laws of the jurisdiction of its formation;
(ii) such Member has full power and authority to execute, deliver, and perform this Agreement and all other agreements and instruments contemplated hereby;
(iii) the execution, delivery, and performance of this Agreement and all other agreements and instruments contemplated hereby have been duly authorized by all necessary action on the part of such Member and do not violate the organizational documents of such Member, any applicable law, or any material agreement to which such Member is a party or by which it is bound;
(iv) there is no litigation, proceeding, investigation, or governmental action pending or, to the knowledge of such Member, threatened against such Member that would materially impair its ability to perform its obligations under this Agreement; and
(v) no broker, finder, or similar intermediary has acted on behalf of such Member in connection with this Agreement or the transactions contemplated hereby, except as may have been previously disclosed to the other Member in writing.
(b) Additional Representations of Fairwater Manager. Fairwater Manager further represents and warrants to the Company and to Prescott Investor that:
(i) the sole member of Fairwater HP Manager, LLC is Fairwater Real Estate Investment Trust, a publicly traded Maryland real estate investment trust listed on the New York Stock Exchange under the ticker symbol "FWT" (EIN: 52-2198437; MD SDAT ID: D19847321);
(ii) as of its most recently completed fiscal year (FY2024), Fairwater REIT had total assets of approximately Four Billion One Hundred Million Dollars ($4,100,000,000) and total revenues of approximately Six Hundred Twelve Million Dollars ($612,000,000), and Fairwater REIT currently owns and operates a portfolio of thirty-eight (38) mixed-use and multifamily properties across the Mid-Atlantic region;
(iii) Fairwater REIT has obtained all necessary board of trustees approvals for the transactions contemplated by this Agreement, as confirmed in the Fairwater Equity Funding Commitment Letter and the Closing Certificate delivered on or prior to the Effective Date; and
(iv) Fairwater REIT is in compliance with all requirements for qualification as a REIT under Sections 856 through 860 of the Code.
(c) Additional Representations of Prescott Investor. Prescott Investor further represents and warrants to the Company and to Fairwater Manager that:
(i) the sole member of Prescott HP Investor, LLC is Prescott Capital Partners, LP (EIN: 13-4587612), whose general partner is Prescott Capital GP, LLC;
(ii) Prescott Capital Partners, LP has obtained all necessary investment committee approvals for the transactions contemplated by this Agreement, such approval having been granted on November 5, 2025; and
(iii) Prescott HP Investor, LLC has adequate capital commitments from Prescott Capital Partners, LP (Fund IV) to satisfy its obligations to fund Capital Contributions as set forth in this Agreement and the Capital Contribution Agreement.
ARTICLE IV — CAPITAL CONTRIBUTIONS
Section 4.1 — Initial Capital Contributions
(a) Total Equity. The Total Equity of the Company is Two Hundred Forty Million Dollars ($240,000,000).
(b) Initial Capital Call. The initial Capital Call (the "Initial Capital Call") shall be in an aggregate amount equal to twenty-five percent (25%) of Total Equity, or Sixty Million Dollars ($60,000,000), and shall be due and payable at or prior to the closing of the acquisition of the Land from the Seller (target date: January 30, 2026). Each Member's share of the Initial Capital Call shall be as follows:
(i) Fairwater Manager: Eighteen Million Dollars ($18,000,000) (30% × $60,000,000); and
(ii) Prescott Investor: Forty-Two Million Dollars ($42,000,000) (70% × $60,000,000).
(c) Method of Payment. All Capital Contributions shall be made by wire transfer of immediately available funds to the Company's designated depository account as identified in writing by the Managing Member to the Members.
Section 4.2 — Additional Capital Contributions
(a) Pro Rata Contributions. Following the Initial Capital Call, the Managing Member shall issue additional Capital Calls from time to time as necessary to fund costs under the Approved Budget. All additional Capital Calls shall be funded by the Members pro rata in accordance with their respective Percentage Interests (30% by Fairwater Manager and 70% by Prescott Investor).
(b) Capital Call Notice. The Managing Member shall deliver written notice of each Capital Call to each Member, which notice shall specify: (i) the aggregate amount of the Capital Call, (ii) each Member's pro rata share, (iii) the purpose for which the funds are required (by reference to the applicable Approved Budget line item(s)), and (iv) the funding deadline, which shall be not less than fifteen (15) business days after delivery of such notice (the "Capital Call Notice Period"). The form of Capital Call notice is attached hereto as Exhibit F.
(c) Budget Compliance. All Capital Calls must be consistent with the Approved Budget. Any Capital Call for amounts not contemplated by the Approved Budget, or any Capital Call that would cause any budgeted line item to exceed the Budget Variance Threshold, shall constitute a Major Decision requiring the prior written consent of the Non-Managing Member pursuant to Section 7.2.
Section 4.3 — Capital Contribution Obligations
(a) Total Capital Commitments. The total capital commitment of each Member is as follows:
(i) Fairwater Manager: Seventy-Two Million Dollars ($72,000,000) (30% × $240,000,000); and
(ii) Prescott Investor: One Hundred Sixty-Eight Million Dollars ($168,000,000) (70% × $240,000,000).
(b) Irrevocable Obligation. Each Member's obligation to fund its pro rata share of Capital Contributions up to its total capital commitment is irrevocable and unconditional, subject to the terms and conditions set forth in the Capital Contribution Agreement dated as of January 12, 2026. The obligation to fund Capital Contributions shall not be subject to any right of set-off, counterclaim, abatement, or deduction.
Section 4.4 — Failure to Fund; Default Remedies
(a) Default. If a Member fails to fund all or any portion of its pro rata share of a Capital Call within the Capital Call Notice Period, such Member shall be a "Defaulting Member" and the other Member (the "Non-Defaulting Member") shall have written notice of such default delivered to the Defaulting Member.
(b) Remedies. Upon the occurrence of a funding default, the Non-Defaulting Member may, in its sole discretion, elect to exercise one or more of the following remedies:
(i) Default Loan. The Non-Defaulting Member may fund the Defaulting Member's unfunded share as a loan to the Defaulting Member (a "Default Loan"), bearing interest at a rate equal to the lesser of (A) eighteen percent (18%) per annum and (B) the maximum rate permitted by applicable law. The Default Loan shall be repayable upon demand and shall be secured by the Defaulting Member's Membership Interest. All distributions that would otherwise be made to the Defaulting Member shall be applied first to repay the outstanding balance of the Default Loan (including accrued interest) until paid in full.
(ii) Dilutive Capital Contribution. The Non-Defaulting Member may fund the Defaulting Member's unfunded share as an additional Capital Contribution by the Non-Defaulting Member. In such event, the Defaulting Member's Percentage Interest shall be proportionally diluted on a formula basis, determined by dividing (A) the Defaulting Member's total funded Capital Contributions (excluding Default Loans) by (B) the sum of all Members' total funded Capital Contributions (excluding Default Loans), with such diluted Percentage Interest valued at the Fair Market Value of the Company Property as of the date of the default.
(iii) Forced Buy-Sell. The Non-Defaulting Member may exercise a forced buy-sell right to acquire the Defaulting Member's entire Membership Interest at a price equal to eighty percent (80%) of the Fair Market Value of such Membership Interest, determined pursuant to the appraisal mechanism in Section 12.4 of this Agreement. The closing of such acquisition shall occur within sixty (60) days after the determination of Fair Market Value.
(iv) Other Remedies. The Non-Defaulting Member may pursue any other remedies available at law or in equity, including specific performance.
(c) Non-Exclusive Remedies. The remedies set forth in this Section 4.4 are cumulative and are not exclusive of any other rights and remedies available to the Non-Defaulting Member under this Agreement, at law, or in equity.
Section 4.5 — No Additional Capital Obligations
No Member shall be obligated to contribute capital to the Company in excess of its total capital commitment set forth in Section 4.3 without the prior written consent of such Member. Any request for capital in excess of a Member's total capital commitment shall constitute a Major Decision.
Section 4.6 — Capital Accounts
The Company shall establish and maintain a Capital Account for each Member in accordance with the rules set forth in Treasury Regulation Section 1.704-1(b)(2)(iv). Each Member's Capital Account shall be: (a) increased by (i) such Member's Capital Contributions and (ii) allocations to such Member of Net Income and items of Company income and gain; and (b) decreased by (i) the amount of cash and the fair market value of property distributed to such Member and (ii) allocations to such Member of Net Loss and items of Company deduction and loss. If any Membership Interest is Transferred in accordance with this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the Transferred interest.
Section 4.7 — No Interest on Capital Contributions
No Member shall be entitled to receive interest on its Capital Contributions or its Capital Account balance, except as provided in the distribution waterfall set forth in Section 6.2 (i.e., the Preferred Return).
Section 4.8 — No Right of Withdrawal
No Member may withdraw all or any portion of its Capital Contribution or demand a return of any portion of its Capital Account, except as provided in Article VI or upon dissolution and winding up of the Company in accordance with Article XIII.
Section 4.9 — Pre-Formation Expenditure Credit
The Members acknowledge and agree that, prior to the formation of the Company, Fairwater REIT incurred certain pre-development expenditures on behalf of and for the benefit of the Project, including, without limitation, environmental assessments, geotechnical studies, architectural and engineering design fees, zoning and entitlement costs, and legal fees. Pursuant to the Pre-Formation Expenditure Reimbursement Agreement between the Company and Fairwater REIT, dated as of the Effective Date, such pre-formation expenditures shall be reimbursed by the Company to Fairwater REIT or, at Fairwater REIT's election, credited against Fairwater Manager's Initial Capital Contribution, in each case in accordance with the terms and conditions of such agreement and as reflected in the Approved Budget.
ARTICLE V — ALLOCATIONS OF PROFIT AND LOSS
Section 5.1 — Net Income and Net Loss
Net Income and Net Loss of the Company shall be determined for each Fiscal Year (or shorter period, as applicable) in accordance with the accounting method used by the Company for federal income tax purposes, as adjusted for the items described in Treasury Regulation Section 1.704-1(b)(2)(iv). For the avoidance of doubt, Net Income and Net Loss shall be computed in accordance with GAAP for financial reporting purposes, and such GAAP figures shall be reconciled with the tax-basis figures on the Company's annual audited financial statements.
Section 5.2 — General Allocation Rules
(a) Net Income and Net Loss shall be allocated among the Members for each Fiscal Year (or shorter period) in a manner that is consistent with the distribution waterfall set forth in Section 6.2 of this Agreement, so that, as nearly as possible after giving effect to the regulatory allocations set forth in Section 5.3, the Capital Account balance of each Member at the end of each Fiscal Year equals the amount that such Member would receive if the Company were dissolved, all of its assets were sold for their book values, all liabilities were satisfied, and the remaining proceeds were distributed in accordance with Section 6.2.
(b) In the event of any conflict between the allocations set forth in this Section 5.2 and the regulatory allocations set forth in Section 5.3, the regulatory allocations shall control.
Section 5.3 — Regulatory Allocations
(a) Minimum Gain Chargeback. Notwithstanding any other provision of this Article V, if there is a net decrease in Company Minimum Gain during any Fiscal Year, each Member shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Member's share of the net decrease in Company Minimum Gain, determined in accordance with Treasury Regulation Section 1.704-2(f). The items to be so allocated shall be determined in accordance with Treasury Regulation Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 5.3(a) is intended to comply with the minimum gain chargeback requirement of Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.
(b) Member Nonrecourse Debt Minimum Gain Chargeback. Notwithstanding any other provision of this Article V (other than Section 5.3(a)), if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Fiscal Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt shall be specially allocated items of Company income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Member's share of the net decrease in Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(4). This Section 5.3(b) is intended to comply with the minimum gain chargeback requirement of Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.
(c) Qualified Income Offset. If any Member unexpectedly receives any adjustments, allocations, or distributions described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6), items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible, provided that an allocation pursuant to this Section 5.3(c) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Article V have been tentatively made as if this Section 5.3(c) were not in this Agreement.
(d) Nonrecourse Deductions. Nonrecourse Deductions for any Fiscal Year shall be allocated among the Members in accordance with their respective Percentage Interests.
(e) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Fiscal Year shall be allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable, in accordance with Treasury Regulation Section 1.704-2(i)(1).
(f) Section 704(c) Allocations. In accordance with Code Section 704(c) and the Treasury Regulations thereunder, items of income, gain, loss, and deduction with respect to any property contributed to the Company (or revalued pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(f)) shall, solely for tax purposes, be allocated among the Members so as to take into account any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial book value (or its book value at the time of revaluation, as applicable). Such allocations shall be made using the "traditional method" under Treasury Regulation Section 1.704-3(b), or such other method as the Members may agree upon in writing.
(g) Curative Allocations. The regulatory allocations set forth in Sections 5.3(a) through 5.3(f) (the "Regulatory Allocations") are intended to comply with certain requirements of Treasury Regulation Sections 1.704-1(b) and 1.704-2 and shall not affect, or in any way be taken into account in computing, any Member's distributive share of items of Company income, gain, loss, or deduction pursuant to any provision of this Agreement other than this Section 5.3. To the extent permitted by the Treasury Regulations, the Managing Member shall make appropriate curative or offsetting allocations so that, after such offsetting allocations are made, each Member's Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations had not been made.
Section 5.4 — Tax Allocations
(a) Except as otherwise provided in this Article V, all income, gains, losses, deductions, and credits of the Company for federal and state income tax purposes shall be allocated among the Members in accordance with the allocations of the corresponding items of Net Income and Net Loss under this Article V.
(b) Items of income, gain, loss, and deduction with respect to property contributed to the Company, or with respect to property that has been revalued for book purposes, shall be allocated among the Members for tax purposes in accordance with Code Section 704(c) and the Treasury Regulations promulgated thereunder.
(c) The Partnership Representative shall determine all tax allocations in a manner consistent with this Article V, and such determinations shall be binding on all Members.
Section 5.5 — Varying Interests
If the Percentage Interests of the Members change during a Fiscal Year (whether by reason of a Transfer of a Membership Interest, dilution under Section 4.4, or otherwise), Net Income and Net Loss (and each item thereof) for such Fiscal Year shall be allocated among the Members using any permissible method under Code Section 706(d) as determined by the Partnership Representative, in consultation with the JV Accountant, taking into account the varying interests of the Members during such Fiscal Year.
ARTICLE VI — DISTRIBUTIONS
Section 6.1 — Distributions of Net Cash Flow
(a) The Managing Member shall determine, as of the end of each calendar quarter, the amount of Net Cash Flow available for distribution to the Members, after taking into account reasonable reserves for (i) anticipated operating expenses of the Company, (ii) capital expenditures, (iii) debt service obligations (including interest and principal payments on the Construction Loan), and (iv) contingencies and working capital needs, all as set forth in or consistent with the Approved Budget.
(b) Available Net Cash Flow shall be distributed to the Members at least quarterly, within forty-five (45) days after the end of each calendar quarter, in accordance with the distribution waterfall set forth in Section 6.2.
(c) Distributions resulting from a Capital Event shall be made promptly following the receipt of proceeds from such Capital Event, in accordance with the distribution waterfall set forth in Section 6.2.
Section 6.2 — Distribution Waterfall
All distributions of Net Cash Flow and Capital Event proceeds shall be made in the following order of priority:
(a) Tier 1 — Return of Capital. First, one hundred percent (100%) to the Members, pro rata in accordance with their respective Percentage Interests (30% to Fairwater Manager and 70% to Prescott Investor), until each Member has received cumulative distributions under this Tier 1 equal to such Member's aggregate Unreturned Capital.
(b) Tier 2 — Preferred Return. Second, one hundred percent (100%) to the Members, pro rata in accordance with their respective Percentage Interests (30% to Fairwater Manager and 70% to Prescott Investor), until each Member has achieved a cumulative internal rate of return of nine percent (9.0%) per annum, compounded quarterly, on such Member's Unreturned Capital. For purposes of calculating the Preferred Return, the IRR shall be computed from the date of each Capital Contribution to the date of each distribution to such Member, using standard discounted cash flow methodology.
(c) Tier 3 — Catch-Up (Promote Catch-Up to Managing Member). Third, sixty percent (60%) to Fairwater Manager and forty percent (40%) to Prescott Investor, until Fairwater Manager has received, in the aggregate (taking into account all distributions in excess of Return of Capital under Tier 1 across all tiers), twenty percent (20%) of all cumulative distributions in excess of the aggregate Return of Capital under Tier 1. The purpose of this Tier 3 is to "catch up" the Managing Member to its promoted interest in profits distributed above the Preferred Return.
(d) Tier 4 — Residual Split (Base Tier). Fourth, twenty percent (20%) to Fairwater Manager and eighty percent (80%) to Prescott Investor. This Tier 4 shall apply to all remaining distributions so long as the Project IRR is at or below fifteen percent (15%).
(e) Tier 5 — Residual Split (Second Promote Tier). Fifth, if and to the extent that the Project IRR exceeds fifteen percent (15%), the residual split on all distributions above the threshold at which the Project IRR exceeds fifteen percent (15%) shall be changed to thirty percent (30%) to Fairwater Manager and seventy percent (70%) to Prescott Investor. For purposes of this Tier 5, the Project IRR shall be determined on a cumulative, project-level basis using total invested equity of both Members as inflows and all distributions to both Members as outflows.
For the avoidance of doubt, the distribution waterfall shall be applied on a cumulative basis, taking into account all prior distributions, and the Managing Member shall provide to Prescott Investor detailed calculations supporting the application of the waterfall in connection with each distribution.
Section 6.3 — Capital Event Distributions
Distributions arising from Capital Events, including the sale of the Company Property, refinancings that generate distributable proceeds, and condemnation awards or casualty insurance proceeds (to the extent not applied to restoration), shall be distributed in accordance with the same waterfall set forth in Section 6.2 of this Agreement.
Section 6.4 — Withholding
The Company may withhold from any distribution to a Member any amounts required to be withheld by the Company under the Code, the Treasury Regulations, or any applicable state or local tax law. Any amounts so withheld shall be treated as having been distributed to such Member for all purposes of this Agreement. The Managing Member shall provide prompt written notice to any affected Member of any amounts withheld under this Section 6.4.
Section 6.5 — Limitations on Distributions
(a) No distribution shall be made if such distribution would violate Section 18-607 of the Delaware LLC Act.
(b) No distribution shall be made if such distribution would cause a default under the Construction Loan or any other indebtedness of the Company, or would violate any lender consent, subordination, or cash management requirements applicable to the Company.
(c) No distribution shall be made from Construction Loan proceeds. All distributions shall be made solely from Net Cash Flow or Capital Event proceeds.
(d) The Managing Member shall determine, in its reasonable discretion (subject to review by the Non-Managing Member), whether sufficient reserves have been established before authorizing any distribution.
Section 6.6 — REIT Required Distributions
Notwithstanding any other provision of this Article VI (including Section 6.5), upon written request by Fairwater Manager, the Company shall distribute to Fairwater Manager an amount sufficient to enable Fairwater REIT to satisfy its REIT distribution requirements under Code Section 857(a), which amount shall be equal to at least one hundred percent (100%) of REIT taxable income attributable to Fairwater Manager's interest in the Company for the applicable taxable year, net of any available net operating loss deductions of Fairwater REIT. Any such REIT-required distribution shall be subject to compliance with the terms and covenants of the Construction Loan and applicable law, and shall be treated as an advance against future distributions to Fairwater Manager under the distribution waterfall set forth in Section 6.2. The Managing Member shall provide to Prescott Investor reasonable documentation supporting the calculation of any REIT-required distribution.
Section 6.7 — Return of Distributions
If any distribution to a Member is required to be returned pursuant to the Delaware LLC Act, applicable law, or order of a court of competent jurisdiction, such Member shall return such distribution (or its pro rata share thereof) to the Company promptly upon demand, and each Member's obligation under this Section 6.7 shall survive the dissolution, winding up, and termination of the Company.
ARTICLE VII — MANAGEMENT AND GOVERNANCE
Section 7.1 — Managing Member
(a) Appointment. Fairwater HP Manager, LLC is hereby designated as the Managing Member and Operating Partner of the Company. Subject to the Major Decision requirements of Section 7.2 and the other provisions of this Agreement, the Managing Member shall have the authority and responsibility for the day-to-day management, operation, and control of the business and affairs of the Company, including the development, construction oversight, leasing, and property management of the Project.
(b) Powers. Without limiting the generality of the foregoing, and subject to the Major Decision requirements of Section 7.2, the Managing Member shall have the authority to take the following actions on behalf of the Company:
(i) execute, deliver, and perform contracts, agreements, leases, and other instruments on behalf of the Company in the ordinary course of business;
(ii) open and maintain bank accounts in the name of the Company and make deposits and withdrawals therefrom;
(iii) hire, retain, supervise, and terminate employees, agents, consultants, and independent contractors as the Managing Member deems necessary or appropriate for the conduct of the Company's business;
(iv) manage, direct, and oversee all construction activities in connection with the Project, including the administration of the GMP Contract with Pinnacle General Contractors, Inc. (whose Chief Executive Officer is Raymond S. Muñoz);
(v) negotiate and execute residential and retail leases for the Project on commercially reasonable terms consistent with the leasing parameters approved by the Members;
(vi) make expenditures on behalf of the Company that are consistent with the Approved Budget;
(vii) maintain complete and accurate books, records, and accounts of the Company;
(viii) prepare, or cause to be prepared by the JV Accountant, all tax returns required to be filed by the Company, and file or cause to be filed such returns with the appropriate governmental authorities;
(ix) procure and maintain insurance coverages for the Company and the Project in accordance with Section 7.7;
(x) prosecute and defend claims, actions, and proceedings on behalf of the Company in the ordinary course of business, provided that the Managing Member shall not settle any claim, action, or proceeding involving an amount in excess of Two Hundred Fifty Thousand Dollars ($250,000) without the prior written consent of the Non-Managing Member; and
(xi) take all other actions that are necessary, appropriate, or incidental to the management of the Company's business and the accomplishment of the Company's purposes, subject to the limitations set forth herein.
(c) Standard of Care