StartupBUSINESS.COM

OF
[company name here]

This Agreement is made and entered into as of the ____ day of __________, 199_ by and between [list partners here] “Members”). The Members desire to form a limited liability company under the laws of the state of [list state the partnership will do business in here] upon the terms and conditions set forth herein.

The parties agree as follows:

1. Definitions -- The following terms used in the Agreement shall have the meanings specified below:

1. "Act" means the [state] Limited Liability Company Act, as amended from time to time.

2. "Agreement" means this Agreement of the [company name], LLC as it may be amended from time to time.

3. "Assignee" means a person who has acquired a Member's Interest in whole or part and has not become a Substitute Member.

4. "Capital Account" means the account maintained for each Member in accordance with Section 6.5. In the case of a transfer of an interest, the transferee shall succeed to the Capital Account of the transferor or, in the case of a partial transfer, a proportionate share thereof.

5. "Capital Contribution" means the total amount of money and the fair market value of all property contributed to the Company by each Member pursuant to the terms of the Agreement. Capital Contribution shall also include any amounts paid directly by a Member to any creditor of the Company in respect of any guarantee or similar obligation undertaken by such Member in connection with the Company's operations. Any reference to the Capital Contribution of a Member shall include the Capital Contribution made by a predecessor holder of the interest of such Member.

6. "Cash Available for Distribution" means all cash receipts of the Company, excluding cash available upon liquidation of the Company, in excess of amounts reasonably required for payment of operating expenses, repayment of current liabilities, repayment of such amounts of Company indebtedness as the Members shall determine necessary or advisable, and the establishment of and additions to such cash reserves as the Members shall deem necessary or advisable, including, but not limited to reserves for capital expenditures, replacements, contingent or unforeseen liabilities or other obligations of the Company.

7. "Code" means the United States Internal Revenue Code of 1986, as amended. References to specific Code Sections or Treasury Regulations shall be deemed to refer to such Code Sections or Treasury Regulations as they may be amended from time to time or to any successor Code Sections or Treasury Regulations if the Code Section or Treasury Regulation referred to is repealed.

8. "Company" means the [company name] , LLC governed by the Agreement.

9. "Company Property" means all the real and personal property owned by the Company.

10. "Deemed Capital Account" means a Member's Capital Account, as calculated from time to time, adjusted by (i) adding thereto the sum of (A) the amount of such Member's Mandatory Obligation, if any, and (B) each Member's share of Minimum Gain (determined after any decreases therein for such year) and (ii) subtracting therefrom (A) allocations of losses and deductions which are reasonably expected to be made as of the end of the taxable year to the Members pursuant to Code Section 704(e)(2), Code Section 706(d) and Treasury Regulation Section 1.751-1(b)(2)(ii), and (B) distributions which at the end of the taxable year are reasonably expected to be made to the Member to the extent that said distributions exceed offsetting increases to the Member's Capital Account (including allocations of the Qualified Income Offset pursuant to Section 7.4 but excluding allocations of Minimum Gain Charge back pursuant to Section 7.3) that are reasonably expected to occur during (or prior to) the taxable years in which such distributions are reasonably expected to be made.

1 1. "Interest" or "Company Interest" means the ownership interest of a Member in the Company at any particular time, including the right of such Member to any and all benefits to which such Member may be entitled as provided in the Agreement and in the Act, together with the obligations of such Member to comply with all the terms and provisions of the Agreement and the Act.

12. "Mandatory Obligation" means the sum of (i) the amount of a Member's remaining contribution obligation (including the amount of any Capital Account deficit such Member is obligated to restore upon liquidation) provided that such contribution must be made in all events within ninety (90) days of liquidation of the Member's interest as determined under Treasury Regulation Section 1.704-1(b)(2)(ii)(g) and (ii) the additional amount, if any, such Member would be obligated to contribute as of year end to retire recourse indebtedness of the Company if the Company were to liquidate as of such date and dispose of all of its assets at book value.

13. "Member(s)" means those persons who execute a counterpart of this Agreement and those persons who are hereafter admitted as Members under Section 10.4 below.

14. "Minimum Gain" means the amount determined by computing, with respect to each non-recourse liability of the Company, the amount of gain, if any, that would be realized by the Company if it disposed of the Company Property subject to such non-recourse liability in full satisfaction thereof in a taxable transaction, and then by aggregating the amounts so determined. Such gain shall be determined in accordance with Treasury Regulation Section 1.704-2(d). Each Member's share of Minimum Gain at the end of any taxable year of the Company shall be determined in accordance with Treasury Regulation Section 1.704-2(g)(1).

15. "Net Income" or "Net Loss" means taxable income or loss (including items requiring separate computation under Section 702 of the Code) of the Company as determined using the method of accounting chosen by the Members and used by the Company for federal income tax purposes, adjusted in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(g), for any property with differing tax and book values, to take into account depreciation, depletion, amortization and gain or loss as computed for book purposes.

16. "Percentage Interest" means the percentage interest of each Member as set forth in Section 6.1.

17. "Substitute Member" means an Assignee who has been admitted to all of the rights of membership pursuant to Section 10.4 below.

2. Name and Formation.

1 Name. The name of the Company shall be [name of company], LLC.

2 Formation. The Members hereby agree to form and operate the Company under the terms and conditions set forth herein. Except as otherwise provided herein, the rights and liabilities of the Members shall be governed by the Act.

3 Defects as to Formalities. A failure to observe any formalities or requirements of this Agreement, the Certificate of Formation for the Company or the Act shall not be grounds for imposing personal liability on the Members for liabilities of the Company.

4 No Partnership Intended for Nontax Purposes. The Members have formed the Company under the Act, and expressly do not intend hereby to form a partnership under either the [state] Act or the [state] Uniform Revised Limited Partnership Act or a corporation under the [state] Business Corporation Act. The Members do not intend to be partners one to another, or partners as to any third party. The Members hereto agree and acknowledge that the Company is to be treated as a partnership for federal income tax purposes.

5 Rights of Creditors and Third Parties. This Agreement is entered into among the Company and the Members for the exclusive benefit of the Company, its Members and their successors and assigns. The Agreement is expressly not intended for the benefit of any creditor of the Company or any other person. Except and only to the extent provided by applicable statute, no such creditor or third party shall have any rights under the Agreement or any agreement between the Company and any Member with respect to any contribution or otherwise.

6 Title to Property. All Company property shall be owned by the Company as an entity and no Member shall have any ownership interest in such property in the Member's individual name or right, and each Member's interest in the Company shall be personal property for all purposes. Except as otherwise provided in this Agreement, the Company shall hold all Company property in the name of the Company and not in the name or names of any Member or Members.

7 Payments of Individual Obligations. The Company's credit and assets shall be used solely for the benefit of the Company, and no asset of the Company shall be transferred or encumbered for or in payment of any individual obligation of any Member unless otherwise provided for herein.

3. Office; Registered Agent. The principal office of the Company shall be at [address] or at such other place designated by the Members. The agent for service of process for the Company shall be [name of agent for company] at the above address.

4. Term. The term of the Company shall commence on the filing of the Certificate of Formation, and shall continue until December 31, 2021, unless sooner terminated in accordance with the provisions of this Agreement and the Act.

5. Purpose and Powers.

1 Purpose. The purpose of the Company shall be to [state purpose of the business here]. The Company shall have no other purpose without the unanimous consent of the Members.

2 Powers. Subject to the provisions of this Agreement, the Company shall have the following powers:

(a) To conduct and operate the business of the Company and to execute documents and instruments relating to the Company business, including, but not limited to, notes, mortgages, deeds of trust, leases, management agreements, contracts and other documents.

(b) To procure and maintain insurance covering the various risks to which the Company or its operations may be subject.

(c) To open bank accounts in the name of the Company, designate the authorized signatures therefor and make deposits and withdrawals from Company accounts on the signa¬tures of one or more designated individuals.

(d) To pay expenses incurred in performing the busi¬ness and purposes of the Company.

(e) To do all things necessary, incidental or conveni¬ent to the exercise of the foregoing powers and to the accom¬plish¬ment of the foregoing purposes.

6 Percentage Interests and Capital Contributions.

1 Percentage Interests. The Members shall have the Percentage Interests in the Company as set forth opposite each Member's name below:

Member Percentage Interest

[Name] [percentage]
[Name] [percentage]
[Name] [percentage]

The Percentage Interest of the Members shall be subject to adjustment as provided in Section 6.3.

2 Initial Capital Contributions. Upon execution of this Agreement, the Members will contribute the aggregate amount of [amount of initial investment here] pro rated by percentage. The Members agree that any expenditures made to date with respect to the business by the Members shall be deemed to be Capital Contributions to the Company, and the Member who made such expenditure shall receive a credit to his/her or its Capital Account for such expenditure.

3 Additional Capital Contributions. If the Company requires funds from time to time in excess of the Initial Capital Contributions provided for in Section 6.2, the Members by Percentage Interest shall contribute such amounts in cash as additional Capital Contributions to the Company when required.

In the event either Member fails to contribute its share of capital to the Company (the "Non-Contributing Member"), then the other Member ("Contributing Member") who has contributed its share may at its option:

(a) Treat the Non-Contributing Member as a Defaulting Member under Section 11;

(b) Contribute the amount required from the Non-Contributing Member and elect to readjust the Percentage Interests of the Members in the Company so that the Percentage Interest of each Member is in the ratio of a fraction, the numerator of which is the aggregate Capital Contributions of each Member pursuant to this Section 6.3 and Section 6.2, and the denominator of which is the aggregate Capital Contributions of both Members pursuant to this Section 6.3 and Section 6.2; or

(c) Advance the Non-Contributing Member's pro rata share to the Company and treat such amount as a loan from the Contributing Member to the Non-Contributing Member (a "Default Loan"). Such Default Loans shall bear interest at a rate equal to [prime rate or other such published rate] in effect as of the first day of the calendar month for the month the Default Loan is made, which rate may be adjusted prospectively thereafter as of the first day of each calendar month. Default Loans shall be repayable within thirty (30) days after written demand, and if not sooner repaid or demand made, shall be repaid from any distributions of Cash Available for Distribution other¬wise to be made to the Non-Contributing Member by the Company or offset against any amount to be paid to the Non-Contributing Member in purchase of its interest in the Company.

4 No Interest on Capital Contributions. No interest shall be paid on any Capital Contribution Contributions or Capital Accounts of the Members.

5 Capital Accounts. The Company shall establish and maintain a Capital Account for each Member in accordance with Treasury Regulations issued under Code Section 704. The initial Capital Account balance for each Member shall be the amount of initial Capital Contributions made by each Member under Section 6.2 above. The Capital Account of each Member shall be increased to reflect (i) such Member's cash contributions, (ii) the fair market value of property contributed by such Member (net of liabilities securing such contributed property that the Company is considered to assume or take subject to under Code Section 752), (iii) such Member's share of Net Income (including all gain as calculated pursuant to Section 1001 of the Code) of the Company and (iv) such Member's share of income and gain exempt from tax. The Capital Account of each Member shall be reduced to reflect (a) the amount of money and the fair market value of property distributed to such Member (net of liabilities securing such distributed property that the Member is considered to assume or take subject to under Section 752), (b) such Member's share of non-capitalized expenditures not deductible by the Company in computing its taxable income as determined under Code Section 705(a)(2)(B), (c) such Member's share of Net Loss of the Company and (d) such Member's share of amounts paid or incurred to organize the Company or to promote the sale of Company Interests to the extent that an election under Code Section 709(b) has not properly been made for such amounts. The Members shall determine the fair market value of all property which is distributed in kind, and the Capital Accounts of the Members shall be adjusted as though the property had been sold for its fair market value and the gain or loss attributable to such sale allocated among the Members in accordance with Section 12.3, as applicable. In the event of a contribution of property with a fair market value which is not equal to its adjusted basis (as determined for federal income tax purposes), a revaluation of the Members' Capital Accounts upon the admission of new members to the Company, or in other appropriate situations as permitted by Treasury Regulations issued under Code Section 704, the Company shall separately maintain "tax" Capital Accounts solely for purposes of taking into account the variation between the adjusted tax basis and book value of Company property in tax allocations to the Members consistent with the principles of Code Section 704(c) in accordance with the rules prescribed in Treasury Regulations promulgated under Code Section 704.

7. Allocations.

1 Allocation of Net Income and Net Loss from Operations. Except as otherwise provided in this Section 7 and Section 12, the Company shall allocate Net Income and Net Loss to the Members in proportion to each Member's Percentage Interest.

2 Limitation on Net Loss Allocations. Notwithstanding anything contained in this Section 7, no Member shall be allocated Net Loss to the extent such allocation would cause a negative balance in such Member's Deemed Capital Account as of the end of the taxable year to which such allocation relates.

3 Minimum Gain Charge back. If there is a net decrease in Minimum Gain during a taxable year of the Company, then notwithstanding any other provision of this Section 7 or Section 12, each Member must be allocated items of income and gain for such year, and succeeding taxable years to the extent necessary (the "Minimum Gain Charge back"), in proportion to, and to the extent of, an amount required under Treasury Regulation Section 1.704 2(f).

4 Qualified Income Offset. If at the end of any taxable year and after operation of Section 7.3, any Member shall have a negative balance in such Member's Deemed Capital Account, then notwithstanding anything contained in this Section 7, there shall be reallocated to each Member with a negative balance in such Member's Deemed Capital Account (determined after the allocation of income, gain or loss under this Section 7 for such year) each item of Company gross income (unreduced by any deductions) and gain in proportion to such negative balances until the Deemed Capital Account for each such Member is increased to zero.

5 Curative Allocations. The allocations set forth in Sections 7.2, 7.3 and 7.4 (the "Regulatory Allocations") are intended to comply with certain requirements of the Treasury Regulations issued pursuant to Code Section 704(b). It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss, or deduction pursuant to this Section 7.5. Therefore, notwithstanding any other provision of this Section 7 (other than the Regulatory Allocations), the Members shall make such offsetting special allocations of Company income, gain, loss, or deduction in whatever manner they determine appropriate 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 were not part of the Agreement and all Company items were allocated pursuant to Section 7.1.

6 Deficit Capital Accounts at Liquidation. It is understood and agreed that one purpose of the provisions of this Section 7 is to insure that none of the Members has a deficit Capital Account balance after liquidation and to insure that all allocations under this Section 7 will be respected by the Internal Revenue Service. The Members and the Company neither intend nor expect that any Member will have a deficit Capital Account balance after liquidation and, notwithstanding anything to the contrary in this Agreement, the provisions of this Agreement shall be construed and interpreted to give effect to such intention. However, if following a liquidation of a Member's interest as determined under Treasury Regulation Section 1.704-1(b)(2)(ii)(g), a Member has a deficit balance in such Member's Capital Account after the allocation of Net Income pursuant to this Section 7 and Section 12 and all other adjustments have been made to such Member's Capital Account for Company operations and liquidation, no Member shall have any obligation to restore such deficit balance.

8. Distributions of Cash Available for Distribution. At such times and in such amounts as the Members determine appropriate, Cash Available for Distribution shall be distributed among the Members in proportion to their Percentage Interests.

9. Management and Accounting.

1 Management. All management decisions or other matters affecting the Company shall be made by unanimous agreement of the Members. To assist in the administration of the business of the Company, the Members may from time to time designate an Administrative Member as the Member responsible for the day-to-day operations of the Company. The Administrative Member is authorized to operate and manage the day-to-day business and affairs of the Company in accordance with this Agreement and shall be the "Tax Matters Partner" of the Company as that term is defined in Internal Revenue Code section 6231(a)(7). The initial Administrative Member shall be [name of Administrative Member].

The Administrative Member shall receive no salary or fees from the Company, but may be reimbursed for expenses in connection with the management of the affairs of the Company.

2 Accounting. The books and records of the Company shall be kept, and federal income tax returns shall be filed in accordance with federal income tax accounting principles applied on a consistent basis from year to year. The fiscal year of the Company shall be the calendar year. All books and records of the Company shall be open at all times for inspection by either Member.

10. Transfers.

1 Transfer Prohibited. No Member may directly or indirectly sell, transfer, assign, pledge or otherwise encumber, voluntarily or involuntarily, all or any part of its interest in the Company¬ without the written consent of the other Member or as provided in Section 10.3, and any other transfer or encumbrance shall be void.

2 Withdrawal. A Member shall have no right to withdraw from the Company.

3 Right of First Refusal. A Member may sell its interest in the Company upon compliance with the following conditions:

(a) In the event a Member ("Selling Member") desires to sell its interest in the Company and receives a written offer ("Offer") therefor which the Selling Member intends to accept, the Selling Member before accepting such Offer shall first notify the other Member ("Non-Selling Member") and provide him with a copy of the Offer. The Offer must contain all material terms relating to the purchase and sale (including the name of the transferee), the consideration must be entirely monetary, and the Offer must contain a provision that the transferee agrees to be bound by all the terms and conditions of this Agreement.

(b) After receiving a copy of the Offer, the Non-Selling Member shall have sixty (60) days within which to elect to purchase the interest of the Selling Member upon the terms and conditions set forth in the Offer. If the Non-Selling Member does not respond or does not elect to purchase the interest of the Selling Member within sixty (60) days, the Selling Member may effect the purchase and sale to the purchaser identified in the Offer and upon the terms and conditions set forth in the Offer, but not otherwise.

(c) In the event the Non-Selling Member elects to pur¬chase the interest of the Selling Member, the Non-Selling Member shall close the purchase and sale within the time period set forth in the Offer or within sixty (60) days after receipt of the Offer, whichever is later.

4 Admission of Transferee as Member.

(a) No transferee of a Member shall be admitted as a Member unless all of the following conditions have been satisfied:

(i) The transfer complies with Sections 10.1 or 10.3;

(ii) The written consent of the Members to such transferee being admitted as a Member is first obtained, which consent may be arbitrarily withheld;

(iii) The prospective transferee has executed an instrument, in form and substance satisfactory to the Members, accepting and agreeing to be bound by all the terms and conditions of this Agreement and has paid all expenses of the Company in effecting the transfer;

(iv) All requirements of the Act regarding the admission of a transferee Member have been complied with by the transferee, the transferring Member and the Company; and

(v) Such transfer is effected in compliance with all applicable state and federal securities laws.

5 Buy-Sell in Event of Deadlock. If the Members are unable to agree concerning the affairs of the Company for a period of thirty (30) days after either Member declares a deadlock in writing, then either Member may proceed as follows:

(a) The Member declaring the deadlock ("Initiating Member") shall provide to the other Member (the "Non-Initiating Member") a written notice of its intention to invoke the provi¬sions of this section together with a price for all the assets of the Company ("Price Notice").

(b) The Non-Initiating Member within thirty (30) days after receipt of the written notice and the Price Notice provided for in subsection 10.4(a) must elect to either: (i) purchase the interest of the Initiating Member in the Company for the amount the Initiating Member would have received had the assets of the Company been sold for the price specified in the Price Notice, the liabilities of the Company satisfied, and the assets of the Company distributed in cash as provided in Sec¬tion 12; or (ii) sell its interest to the Initiating Member for the amount the Non-Initiating Member would have received had the assets of the Company been sold for the price specified in the Price Notice, the liabilities of the Company satisfied, and the assets of the Company distributed in cash as provided in Section 12.

(c) The purchase and sale shall close within thirty (30) days after the Non-Initiating Member has notified the Initiating Member of its election pursuant to subsection 10.4(b). If the Initiating Member or the Non-Initiating Member fails to purchase and sell in accordance with the election pursuant to subsection 10.5(b), it shall be a Defaulting Member as defined in Section 11.

(d) A Member who is a Defaulting Member as defined in Section 11 may not invoke the provisions of this Section 10.5.

6 Purchase of Defaulting Member's Interest. In the event either Member shall be a Defaulting Member, the other Member (the "Non-Defaulting Member") may elect to purchase the interest of the Defaulting Member in the Company upon the following terms:

(e) The Non-Defaulting Member shall notify the Defaulting Member of its election to purchase the Defaulting Member's interest and along with such notice shall designate an MAI appraiser who shall establish within twenty (20) days thereafter the appraised fair market value of the Company's assets. Goodwill of the Company, if any, shall not be considered in determining fair market value. The cost of the appraisal shall be charged to the Defaulting Member.

(f) The Non-Defaulting Member shall then purchase the Defaulting Member's interest in the Company for an amount equal to ninety percent (90%) of the amount the Defaulting Member would have received had the assets of the Company been sold for the appraised fair market value determined as provided in subsec¬tion 10.5(a), the liabilities of the Company satisfied, and the assets of the Company distributed in cash as provided in Section 12.

(g) The purchase shall close within thirty (30) days after the appraised fair market value is determined as provided in subsection 10.5(a).

7 General Conditions. The Member whose interest is purchased pursuant to Sections 10.2 through 10.5 shall be indemnified by the purchasing Member from any Company liabilities except to the extent any such liabilities were not taken into account in determining the amount the Member would receive pursuant to Section 12. The purchasing Member shall pay the applicable purchase price in cash at closing and the Selling Member shall assign its Company interest and convey by quitclaim deed its interest in the Property to the purchasing Member at closing.

11. Default.

1 Events of Default. A Member shall be in default ("Defaulting Member") hereunder upon the occurrence of any of the following events:

(a) If either Member makes an assignment for the benefit of creditors or applies for the appointment of a trustee, liquidator or receiver of any part of its assets or commences any proceedings relating to such Member under any federal or state law relating to bankruptcy, insolvency, reorganization or similar laws;

(b) If either Member has a proceeding commenced against it relating to the appointment of a trustee, liquidator or receiver or pursuant to any proceedings under any federal or state law relating to bankruptcy, insolvency, reorganization or similar laws, which proceeding is not dismissed within ninety (90) days after the filing of such proceeding;

(c) If either Member suffers its Interest in the Company to become subject to any attachment, levy, execution or other judicial seizure;

(d) If either Member fails to make a Capital Contribution to the Company as provided in Section 6.3;

(e) If either Member transfers its Interest in viola¬tion of Section 10;

(f) If either Member breaches or fails to perform any other provision of this Agreement and such breach or failure is not cured within thirty (30) days after written notice; or

(g) If either Member is judicially determined to be incompetent.

2 Remedies. Upon either Member becoming a Defaulting Member, the Non-Defaulting Member may:

(a) Dissolve and terminate the Company as provided in Section 12 and offset against any amount to be distributed to the Defaulting Member the damages caused the Company by the Defaulting Member;

(b) Elect to purchase the interest of the Defaulting Member pursuant to Section 10.6;

(c) Exercise the remedies provided in Section 6 for a failure to make a Capital Contribution; or

(d) Pursue any remedy at law or in equity against the Defaulting Member.

A Defaulting Member shall have no right to vote upon or otherwise participate in management of the Company, regardless of whether the Non-Defaulting Member has commenced to exercise any available remedies.

12. Dissolution and Termination.

1 Dissolution. The Company shall be dissolved upon the occurrence of any of the following events:

(a) Expiration of the term of the Company stated in Section 4 hereof;

(b) Unanimous agreement of the Members;

(c) Sale or disposition of all or substantially all of the Company assets;

(d) Election of the Non-Defaulting Member pursuant to Section 11.2(a); or

(e) The death, incompetence, withdrawal, expulsion, bankruptcy, resignation, or dissolution of a Member, or any other event that terminates the continued membership of such Member unless at the time of the occurrence of any of such event there are at least two other Members, and within 90 days of such occurrence, all remaining Members consent to the continuation of the Company, in which case the business of the Company shall be carried on by the remaining Members.

Neither Member shall have the right to dissolve or termi¬nate the Company for any reason other than as set forth above.

2 Distribution of Cash Upon Termination. If the Company¬ is dissolved pursuant to Section 12.1, the Company affairs shall be wound up as expeditiously as possible, the assets sold, and the Company terminated. Either Member may be a purchaser of any or all of the assets. After payment of all Company liabilities and expenses of sale and allocations pur¬su¬ant to Section 12.3, the remaining cash shall be distributed to the Members in accordance with their positive Capital Accounts as adjusted by the allocations provided for in Section 12.3.

There shall be deducted or added to the above, as the case may be, any final adjustments between the Members by reason of Default Loans or offsets as provided in this Agreement.

3 Allocation of Net Income and Net Loss Upon Termination or Sale. All Net Income and Net Loss upon dissolution of the Company or from sale, conversion, disposition or taking of all or substantially all of the Company's property, including, but not limited to the proceeds of any eminent domain proceeding or insurance award (respectively, "Gain on Sale" or "Loss on Sale") shall be allocated as follows:

(a) Loss on Sale shall be allocated between the Members as follows:

(i) First, proportionately to those Members having positive Capital Account balances until all positive Capital Accounts have been reduced to zero; and

(ii) Thereafter, to the Members in proportion to their Percentage Interests.

(b) Gain on Sale to the extent available shall be allocated between the Members as follows:

(i) First, proportionately to those Members having negative Capital Account balances until such negative balances are eliminated;

(ii) Second, to the Members in such amounts and to the extent necessary, to cause their Capital Account balances to be in proportion to their Percentage Interests; and

(iii) Thereafter, to the Members in proportion to their Percentage Interests.

13. Conflicts of Interest. Each Member under¬stands that the other Member may engage in other business acti¬vi¬ties which may compete directly or indirectly with the Company, including, but not limited to, the acquisition of other real property or other business activities in the same geographical area. Each Member hereby consents to such other business acti¬vities and agrees that no Member shall acquire any interest therein by virtue of this Company.

14. Indemnity and Contribution. Any Member who incurs a Company liability without authority to do so shall indemnify, defend and hold harmless the Company and the other Member against the entire amount of such liability.

15. Notices. Any notice required or permitted under this Agreement shall be delivered to the address or sent to the facsimile number set forth below each Member's name on the signature page hereof.

16. Governing Law. This Agreement shall be governed by the internal laws of the State of [state].

17. Agreement Binding Upon Successors and Assigns. This Agreement shall be binding upon the successors and assigns of the Members.

18. Arbitration.

1 Any controversy or claim among the Members arising out of or relating to this Agreement including, but not limited to, a claim based on or arising from an alleged tort, will, at the request of any Member be determined by arbitration. The arbitration shall be conducted in accordance with the Federal Arbitration Act (Title 9, U.S. Code), notwithstanding any choice of law provision in this Agreement, and under the Commercial Rules of the American Arbitration Association. The arbitrator(s) shall give effect to statutes of limitation in determining any claim. Any controversy concerning whether an issue is arbitrable shall be determined by the arbitrator(s). The award rendered by the arbitrator(s) shall be final, and the judgment may be entered in any court having jurisdiction thereof. The institution and maintenance of an action for judicial relief or pursuit of a provisional or ancillary remedy shall not constitute a waiver or the right of any Member, including the plaintiff, to submit the controversy or claim to arbitration if any Member contests such action for judicial relief.

2 In any arbitration proceeding, the arbitrator(s) is(are) authorized to apportion costs and expenses, including investigation, legal and other expense, which will include, if applicable, a reasonable estimate of allocated costs and expenses or in house legal counsel and legal staff. Such costs and expenses are to be awarded only after the conclusion of the arbitration and will not be advanced during the course of such arbitration.

19. Amendments. Except as otherwise provided by law, this Agreement may be amended in any respect with the written consent of both Members.

20. Counterparts. This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Delivery of any executed counterpart of a signature page to this Agreement by facsimile shall be effective as delivery of an executed original counterpart of this Agreement.

21. Pronouns and Paragraph Headings. As required by the context, all pronouns shall be deemed to refer to and include masculine, feminine, neuter, singular, and plural. Paragraph headings shall be inserted solely for the convenience of the Members and shall not be considered a part of this Agreement for interpretation or construction.

22. Legal Representation - Conflicts of Interest. Each party hereto recognizes and acknowledges that each such party may have an actual or potential adverse interest or conflict of interest in relationship to the other parties hereto and that because of such, the law firm of [name of firm involved in partnership] (including its partners, employees, agents and successors) (collectively, "Counsel") may have an actual or potential conflict of interest by representing more than one of the parties hereto, or arising from another representation of a party. All the parties acknowledge that Counsel is representing the Company with respect to this Agreement and the other parties acknowledge that they have been advised to seek independent counsel. Each party to this Agreement also agrees that in the event of a situation arising wherein a party hereto is in an adverse position to another party with respect to this Agreement or otherwise, Counsel may, at its sole and absolute discretion, represent one or more of the parties hereto or the Company and may decline to represent one or more of such parties or the Company.

MEMBERS:


________________________________ Dated: ______________
[name]


________________________________ Dated: ______________
[name]


________________________________ Dated: ______________
[name]


________________________________ Dated: ______________
[name]