First Amended and Restated Operating Agreement

Amended and Restated Operating Agreement

(Increasing One Member’s Ownership Interest)

Amended and Restated Operating Agreement

Of

(Name of LLC), LLC

THIS Amended and Restated Operating Agreement (Agreement) is entered into this (date), by and between the following persons, hereinafter called Members or Parties:

1. (Name of Member)

2. (Name of Member)

For and in consideration of the mutual covenants contained in this agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

ARTICLE I

FORMATION OF LIMITED LIABILITY COMPANY

1. Formation of LLC. The Parties have formed a (Name of State) Limited liability Company named (hereinafter sometimes called the LLC). The operation of the LLC shall be governed by the terms of this Agreement and the provisions of the Limited Liability Company Act (Citation of Limited Liability Code in State’s Code), hereinafter referred to as the Act.

2. Certificate of Formation. The Members Acting through (Name of Signatories to Certificate of Formation) filed a Certificate of Formation, (the Certificate) for record in the office of the Secretary of State on the (date), thereby creating the LLC.

3. Business. The business of the LLC shall be:

A. (Describe)

B. To conduct or promote any lawful businesses or purposes within (Name of State) or any other jurisdiction which a Limited liability company is legally allowed to conduct or promote.

ARTICLE II

MEMBERS

7. Initial Members. The initial members of the LLC, their initial capital contributions and their percentage interest in the LLC are:

Initial Members Percentage Interest in LLC Capital Contribution

(If applicable, in addition, has advanced the LLC the amount of which the LLC shall pay back on or before said amount to bear interest at the rate of for the date of said Loan).

8. Additional Members. New members may be admitted only upon the consent of two-thirds majority of the Members and upon compliance with the provisions of this Agreement.

ARTICLE III

MANAGEMENT

9. Management. The management of the LLC shall be vested in the Members without an appointed manager. The members shall have the power and authority to bind the LLC in all transactions and business dealings of any kind except as otherwise provided in this Agreement.

ARTICLE IV

CONTRIBUTIONS, PROFITS, LOSSES, AND DISTRIBUTIONS

10. Interest of Members. Each Member shall own a percentage interest (sometimes referred to as a share) in the LLC. The Member’s percentage interest shall be based on the amount of cash or other property that the Member has initially contributed to the LLC and that percentage interest shall control the Member’s share of the profits, losses, and distributions from the LLC.

11. Contributions. The initial contributions and initial percentage interest of the Members are as set out in this Agreement.

12. Record of Contributions/Percentage Interests. This Agreement, any Amendment to this Agreement and all Resolutions of the Members of the LLC shall constitute the record of the Members of the LLC and of their respective interest therein.

13. Profits and Losses. The profits and losses and all other tax attributes of the LLC shall be allocated among the Members on the basis of the Members' percentage interests in the LLC.

14. Distributions. Distributions of cash or other assets of the LLC (other than in dissolution of the LLC) shall be made in the total amounts and at the times as determined by a majority of the Members. Any such distributions shall be allocated among the Members on the basis of the Members' percentage interests in the LLC.

15. Change in Interests. If during any year there is a change in a Member's percentage interest, the Member's share of profits and losses and distributions in that year shall be determined under a method which takes into account the varying interests during the year.

ARTICLE V

VOTING; CONSENT TO ACTION

16. Voting by Members. Members shall be entitled to vote on all matters which provide for a vote of the Members in accordance with each Member’s percentage interest. A majority of the Members, based upon their percentage ownership, is required for any Action, other than the day to day management of the LLC.

17. Meetings - Written Consent. Action of the Members may be accomplished with or without a meeting. If a meeting is held, evidence of the Action shall be by Minutes or Resolution reflecting the Action of the Meeting, signed by a majority of the Members. Action without a meeting may be evidenced by a written consent signed by a majority of the Members.

18. Meetings. Meetings of the Members may be called by any Member owning 25% or more of the LLC.

19. Majority Defined. As used throughout this agreement the term Majority of the Members shall mean a majority of the ownership interest of the LLC as determined by the records of the LLC on the date of the Action.

ARTICLE VI

MEMBERS INTEREST TERMINATED

20. Termination of Membership. A Member’s interest in the LLC shall cease upon the occurrence of one or more of the following events:

A. A Member provided notice of withdrawal to the LLC thirty (30) days in advance of the withdrawal date. Withdrawal by a Member is not a breach of this Agreement.

B. A Member assigns all of his/her interest to a qualified third party.

C. A Member dies.

D. There is an entry of an order by a court of competent jurisdiction adjudicating the Member incompetent to manage his/her person or his/her estate.

E. In the case of an estate that is a Member, the distribution by the Fiduciary of the estate's entire interest in the LLC.

F. A Member, without the consent of a majority of the Members:

1. Makes an assignment for the benefit of creditors;

2. Files a voluntary petition in bankruptcy;

3. Is adjudicated a bankrupt or insolvent;

4. Files a petition or answer seeking for himself or herself any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law or regulation;

5. Files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against him in any proceeding of the nature described in this paragraph;

6. Seeks, consents to, or acquiesces in the appointment of a trustee, receiver, or liquidator of the Member or of all or any substantial part of his properties; or

7. If any creditor permitted by law to do so should commence foreclosure or take any other Action to seize or sell any Member's interest in the LLC.

G. If within one hundred twenty (120) days after the commencement of any Action against a Member seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or regulation, the Action has not been dismissed and/or has not been consented to by a majority of the members.

H. If within ninety (90) days after the appointment, without a member’s consent or acquiescence, of a trustee, receiver, or liquidator of the Member or of all or any substantial part of the member’s properties, said appointment is not vacated or within ninety (90) days after the expiration of any stay, the appointment is not vacated and/or has not been consented to by a majority of the members.

I. Any of the events provided in applicable code provisions that are not inconsistent with the dissociation events identified above.

21. Effect of Disassociation

Any dissociated Member shall not be entitled to receive the fair value of his LLC interest solely by virtue of his or her disassociation. A disassociated Member that still owns an interest in the LLC shall be entitled to continue to receive such profits and losses, to receive such distribution or distributions, and to receive such allocations of income, gain, loss, deduction, credit or similar items to which he would have been entitled if still a Member. For all other purposes, a disassociated Member shall no longer be considered a Member and shall have no rights of a Member.

ARTICLE VII

RESTRICTIONS ON TRANSFERABILITY OF LLC INTEREST; SET PRICE FOR LLC INTEREST

22. LLC Interest. The LLC interest is personal property. A Member has no interest in property owned by the LLC. All transfers of interest must comply with (Citation of Limited Liability Code in State’s Code) and any other applicable laws.

23. Encumbrance. A Member can encumber his LLC interest by a security interest or other form of collateral only with the consent of a majority of the other Members. Such consent shall only be given if the proceeds of the encumbrance are contributed to the LLC to respond to a cash call of the LLC.

24. Sale of Interest. A Member can sell his LLC interest only as follows:

A. If a Member desires to sell his/her interest, in whole or in part, he/she shall give written notice to the LLC of his desire to sell all or part of his/her interest and must first offer the interest to the LLC. The LLC shall have the option to buy the offered interest at the then existing Set Price as provided in this Agreement. The LLC shall have thirty (30) days from the receipt of the assigning Member's notice to give the assigning Member written notice of its intention to buy all, some, or none of the offered interest. The decision to buy shall be made by a majority of the other Members. Closing on the sale shall occur within sixty (60) days from the date that the LLC gives written notice of its intention to buy. The purchase price shall be paid in cash at closing.

B. To the extent the LLC does not buy the offered interest of the selling Member, the other Members shall have the option to buy the offered interest at the Set Price on a pro rata basis based on the Members' percentage interests at that time. Members shall have fifteen (15) days from the date the LLC gives its written notice to the selling Member to give the selling Member notice in writing of their intention to buy all, some, or none of the offered interest. Closing on the sales shall occur within sixty (60) days from the date that the Members give written notice of their intention to buy. The purchase price from each purchasing Member shall be paid in cash at closing.

C. To the extent the LLC or the Members do not buy the offered interest, the selling Member can then assign the interest to a legally qualified non-member. The selling Member must close on the assignment within ninety (90) days of the date that he gave notice to the LLC. If he does not close by that time, he must again give the notice and options to the LLC and the LLC Members before he/she sells the interest.

D. The selling Member must close on the assignment within ninety (90) days of the date that he/she gave notice to the LLC. If he/she does not close by that time, he/she must again give the notice and options to the LLC and the LLC Members before he/she sells the interest.

E. A non-member purchaser of a member’s interest cannot exercise any rights of a Member unless a majority of the non-selling Members consent to him becoming a Member. The non-member purchaser will be entitled, however, to share in such profits and losses, to receive such distributions, and to receive such allocation of income, gain, loss, deduction, credit or similar items to which the selling member would be entitled, to the extent of the interest assigned, and will be subject to calls for contributions under the terms of this Agreement. The purchaser, by purchasing the selling member’s interest, agrees to be subject to all the terms of this Agreement as if he/she were a Member.

25. Set Price. The Set Price for purposes of this Agreement shall be the price fixed by consent of a majority of the Members. The Set Price shall be memorialized and made a part of the LLC records. The initial Set Price for each Member's interest is the amount of the Member's contribution to the LLC as provided above, as updated in accordance with the terms hereof. Any future changes in the Set Price by the Members shall be based upon net equity in the assets of the LLC (fair market value of the assets less outstanding indebtedness), considering the most recent appraisal obtained by the LLC for its assets, as may be adjusted by the Members in their discretion. The initial Set Price shall be adjusted upon demand by a Member but not more than once a year unless all Members consent. This basis for determining the Set Price shall remain in effect until changed by consent of a majority of the Members. The Members will consider revising the basis for determining the Set Price at least annually.

ARTICLE VIII

OBLIGATION TO SELL ON DISSOCIATION EVENT CONCERNING A MEMBER

26. Disassociation. Except as otherwise provided, upon the occurrence of a disassociation event with respect to a Member, the LLC and the remaining Members shall have the option to purchase the dissociated Member's interest at the Set Price in the same manner as provided in ARTICLE VII and as if the dissociated Member had notified the LLC of his desire to sell all of his/her LLC interest. The date the LLC received the notice as provided in ARTICLE VII triggering the options shall be deemed to be the date that the LLC receives Actual notice of the disassociation event.

ARTICLE IX

DISSOLUTION

27. Termination of LLC. The LLC will be dissolved and its affairs must be wound up only upon the written consent of a majority of the Members.

28. Final Distributions. Upon the winding up of the LLC, the assets must be distributed as follows: (a) to the LLC creditors; (b) to Members in satisfaction of liabilities

for distributions; and (c) to Members first for the return of their contributions and secondly respecting their LLC interest, in the proportions in which the Members share in profits and losses.

ARTICLE X

TAX MATTERS

29. Capital Accounts. Capital accounts shall be maintained consistent with Internal Revenue Code § 704 and the regulations hereunder.

30. Partnership Election. The Members elect that the LLC be taxed as a partnership and not as an association taxable as a corporation.

ARTICLE XI

RECORDS AND INFORMATION

31. Records and Inspection. The LLC shall maintain at its place of business the Certificate of Formation, any amendments thereto, this Agreement, and all other LLC records required to be kept by the Act, and the same shall be subject to inspection and copying at the reasonable request, and the expense, of any Member.

32. Obtaining Additional Information. Subject to reasonable standards, each Member may obtain from the LLC from time to time upon reasonable demand for any purpose reasonably related to the Member's interest as a Member in the LLC: (1) information regarding the state of the business and financial condition of the LLC; (2) promptly after becoming available, a copy of the LLC's federal, state, and local income tax returns for each year; and (3) other information regarding the affairs of the LLC as is just and reasonable.

ARTICLE XII

MISCELLANEOUS PROVISIONS

33. Amendment. Except as otherwise provided in this Agreement, any amendment to this Agreement may be proposed by a Member. Unless waived by the Members, the proposing Member shall submit to the Members any such proposed amendment together with an opinion of counsel as to the legality of such amendment and the recommendation of the Member as to its adoption. A proposed amendment shall become effective at such time as it has been approved in writing by a majority of the Members. This Agreement may not be amended nor may any rights hereunder be waived except by an instrument in writing signed by the party sought to be charged with such amendment or waiver, except as otherwise provided in this Agreement.

34. Applicable Law. To the extent permitted by law, this Agreement shall be construed in accordance with and governed by the laws of the State of .

35. Pronouns, etc. References to a Member, including by use of a pronoun, shall be deemed to include masculine, feminine, singular, plural, individuals, partnerships or corporations where applicable.

36. Counterparts. This instrument may be executed in any number of counterparts each of which shall be considered an original.

37. Specific Performance. Each Member agrees with the other Members that the other Members would be irreparably damaged if any of the provisions of this Agreement are not performed in accordance with their specific terms and that monetary damages would not provide an adequate remedy in such event. Accordingly, it is agreed that, in addition to any other remedy to which the non-breaching Members may be entitled, at law or in equity, the non-breaching Members shall be entitled to injunctive relief to prevent breaches of this Agreement and, specifically, to enforce the terms and provisions of this Agreement in any Action instituted in any court of the United States or any state thereof having subject matter jurisdiction thereof.

38. Further Action. Each Member, upon the request of the LLC, agrees to perform all further Acts and to execute, acknowledge and deliver any documents which may be necessary, appropriate, or desirable to carry out the provisions of this Agreement.

39. Method of Notices. All written notices required or permitted by this Agreement shall be hand delivered or sent by certified mail, postage prepaid, addressed to the LLC at its place of business or to a Member as set forth on the Member's signature page of this Agreement (except that any Member may from time to time give notice changing his address for that purpose), and shall be effective when personally delivered or, if mailed, on the date set forth on the receipt of registered or certified mail.

40. Facsimiles. For purposes of this Agreement, any copy, facsimile, telecommunication or other reliable reproduction of a writing, transmission or signature may be substituted or used in lieu of the original writing, transmission or signature for any and all purposes for which the original writing, transmission or signature could be used, provided that such copy, facsimile telecommunication or other reproduction shall have been confirmed received by the sending Party.

41. Computation of Time. In computing any period of time under this Agreement, the day of the Act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be The last day of the period so computed shall be included, unless it is a Saturday, Sunday or legal holiday, in which event the period shall run until the end of the next day which is not a Saturday, Sunday or legal holiday.

42. As used herein and unless the context otherwise requires, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine and neuter, and vice versa.

Members: