Operating Agreement CRE Investment Fund by ltedprosser

VIEWS: 9 PAGES: 45

Operating Agreement CRE Investment Fund- Manager Managed comprehensive agreement intended for use by a commercial real estate investment fund, suitable for private placement offering.
Pages: 49

More Info
									     OPERATING AGREEMENT OF
       (COMPANY NAME), LLC
A NORTH CAROLINA LIMITED LIABILITY
            COMPANY
      EFFECTIVE AS OF THE ____ DAY OF ___________, 20___(YEAR).



                                 SECTION 1 DEFINITIONS

       Definitions. The following terms used in this Operating Agreement shall have
the following meanings (unless otherwise expressly provided herein):

              1.1 “Act” shall mean the North Carolina Limited Liability Company Act, as
contained in North Carolina General Statute Section 57C-1-01, et al., as the same may be
modified or amended from time to time.

               1.2 “Affiliate” shall mean (i) any partner of a Member or Manager; (ii) any
member of the immediate family of any such partner or of a Member or Manager; (iii) any
shareholder, officer or director of a Member or any member of their respective immediate
families; any Person, firm or Entity which, directly or indirectly, controls, is controlled by, or is
under common control with a Member; (iv) any shareholder, officer or director of such partner or
any member of their respective families; or (v) any officer, director or shareholder of a Member
or any member of their respective immediate families in a joint venture, limited liability
company, partnership or other form of business association. As used in this definition, the term
“control” shall mean the ownership of ten percent (10%) or more of the beneficial interest in the
firm or Entity referred to, and the term “immediate family” shall mean the spouse, ancestors,
lineal descendants, brothers and sisters of the Person in question, including those adopted.

              1.3 “Articles of Organization” shall mean the Articles of Organization of the
Company as filed with the North Carolina Secretary of State as the same may be amended from
time to time.

               1.4 “Buy-Sell Closing” shall have the meaning assigned to it in Section 10.6.

               1.5 “Buy-Sell Event” shall have the meaning assigned to it in Section 10.1.

               1.6 “Buy-Sell Notice” shall have the meaning assigned to it in Section 10.2.



                                                 1

                                         Company Name
             1.7 “Capital Account” shall mean, with respect to any Member, the Capital
Account maintained for such Person in accordance with the following provisions:

                      (i) To each Person’s Capital Account there shall be credited such
                             Person’s Capital Contributions, such Person’s distributive
                             share of Profits, and any items in the nature of income or
                             gain that are specially allocated pursuant to Section 9.6
                             hereof, and the amount of any Company liabilities that are
                             assumed by such Person or that are secured by any Company
                             property distributed to such Person.

                      (ii) To each Person’s Capital Account there shall be debited the
                             amount of cash and the Gross Asset Value of any Company
                             property distributed to such Person pursuant to any provision
                             of this Operating Agreement, such Person’s distributive
                             share of losses, and any items in the nature of expenses or
                             losses that are specially allocated pursuant to Section 9.6
                             hereof, and the amount of any liabilities of such Person that
                             are assumed by the Company or that are secured by any
                             property contributed by such Person to the Company.

                      (iii) In the event any interest in the Company is transferred in
                              accordance with the terms of this Operating Agreement, the
                              transferee shall succeed to the Capital Account of the
                              transferor to the extent it relates to the transferred interest.

                      (iv) In determining the amount of any liability for purposes of
                             subparagraph (i) and (ii) above, there shall be taken into
                             account Code Section 752(c) and any other applicable
                             provisions of the Code and Regulations.

   The foregoing provisions and the other provisions of this Operating Agreement relating to the
maintenance of Capital Accounts are intended to comply with Regulation Section 1.704-1(b) and
shall be interpreted and applied in a manner consistent with such Regulations. In the event the
Manager shall determine that it is prudent to modify the manner in which the Capital Accounts,
or any debits or credits thereto (including without limitation, debits or credits relating to
liabilities that are secured by contributed or distributed property or that are assumed by the
Company or the Members), are computed in order to comply with such Regulations, the
Manager may make such modification, provided (i) it is not likely to have a material effect on
the amounts distributed to any Members pursuant to Section 9.2, 10.3, 14.2 or any other
provision of this Operating Agreement upon the dissolution of the Company; and (ii) it shall not
cause any net change in the percentage of Profit/Loss Interests held by any Member. The
Manager also shall (i) make any adjustments that are necessary or appropriate to maintain
equality between the Capital Accounts of the Members and the amount of Company capital
reflected on the Company’s balance sheet, as computed for book purposes, to the extent required
by the Code and Regulations and (ii) make any appropriate modifications in the event
                                               2

                                       Company Name
unanticipated events (for example, the acquisition by the Company of oil or gas properties)
might otherwise cause this Operating Agreement not to comply with Treasury Regulation
Section 1.704-1(b), and (iii) make any adjustments that are necessary or appropriate to account
for charitable contributions of Company property.
               1.8 “Capital Contribution” shall mean, with respect to any Member, the amount
of contributions of cash or property (valued for this purpose at its initial Gross Asset Value)
(including, without limitation, the Member’s Initial Capital Contribution) made to the Company
by a Member or its predecessor in interest.

              1.9 “Cash Flow” for a Fiscal Year shall mean all cash received in such Fiscal
Year by the Company (other than Members’ Capital Contributions and Distributable Sale
Proceeds), plus any cash that becomes available from reserves, after deducting therefrom the
following items for such Fiscal Year:

                     I.      The sum of all cash operating expenses of the Company, as
                             determined in accordance with sound accounting principles
                             and procedures, including, without limitation, interest on all
                             Company indebtedness;

                     II.     All amounts paid by the Company for capital expenditures
                             that are not deductible on a current basis including, without
                             limitation, amounts paid for construction costs of
                             improvements and infrastructure;

                     III.    To the extent not covered in (i) and (ii) above, any and all
                             obligations and expenses of the Company under any agreement
                             entered into by the Company;

                     IV.     All payments of principal, interest and other fees and
                             expenses on indebtedness of the Company for borrowed
                             money; and

                     V.      An amount that the Manager or lender(s) shall determine to
                             be a reasonable reserve for needs not otherwise provided for,
                             including, without limitation, expenses incurred that are n ot
                             paid or presently payable, working capital, and capital
                             expenditures the Manager deems to be in the best interests of
                             the Company.

               1.10 “Class A Member” shall mean any Person that is a Class A Member of the
Company (whether a Class A Member designated on the attached Exhibit A or a subsequently
admitted or substituted Member) at the time of reference thereto.

               1.11 “Class B Member” shall mean any Person that is a Class B Member of the
Company (whether a Class B Member designated on the attached Exhibit A or a subsequently
admitted or substituted Member) at the time of reference thereof.
                                              3

                                      Company Name
               1.12 “Closing” shall mean the execution of this Agreement and delivery of Initial
Capital Contributions by the initial Members of the Company.

               1.13 “Company” shall refer to (Name).

               1.14 “Company Minimum Gain” shall have the meaning set forth in Sections
1.704-2(b)(2) and 1.704-2(d) of the Regulations.

               1.15 “Counsel” shall have the meaning assigned to it in Section 13.17.

                1.16 “Deficit Capital Account” shall mean with respect to any Member, the deficit
balance, if any, in such Person’s Capital Account as of the end of the relevant Fiscal Year, after
giving effect to the following adjustments:

                       (i) credit to such Capital Account any amounts which such Person
                              is obligated to restore or is deemed to be obligated to restore
                              pursuant to the penultimate sentences of Regulations
                              Sections 1.704-2(g)(1) and 1.704-2(i)(5); and

                       (ii) debit to such Capital Account the items described in Sections
                              1.704-l(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704-
                              1(b)(2)(ii)(d)(6) of the Regulations.

  The foregoing definition of Deficit Capital Account is intended to comply with the provisions
of Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted consistently therewith.
               1.17 “Depreciation” shall mean, for each Fiscal Year or other period, an amount
equal to the depreciation, amortization, or other cost recovery deduction allowable under the
Code with respect to an asset for such year or other period, except that if the Gross Asset Value
of an asset differs from its adjusted basis for federal income tax purposes at the beginning of
such year or other period, Depreciation shall be an amount which bears the same ratio to such
beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost
recovery deduction for such year or other period bears to such beginning adjusted tax basis;
provided, however, that if the federal income tax depreciation, amortization or other cost
recovery deduction for such year is zero, Depreciation shall be determined with reference to such
beginning Gross Asset Value using any reasonable method selected by the Manager.

               1.18 “Distributable Sale Proceeds” shall mean the amount of cash receipts
received in a transaction described in, and remaining after payment of the amounts listed in,
Section 10.1, to be distributed to the Members in accordance with Section 10.3.

                1.19 “Domestic Proceeding” shall mean the filing of a petition or suit for divorce
or equitable distribution that is not dismissed within sixty (60) days.

                1.20 “Entity” shall mean any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business trust, cooperative, association or any
foreign trust, or foreign business organization.

                                                 4

                                         Company Name
                 1.21 “Fiscal Year” shall mean the Company’s fiscal year, which shall be the
calendar year.

                 1.22 “Funding Deficits” shall have the meaning assigned to it in Section
5.2(l)(iii).

                1.23 “Gross Asset Value” shall mean, with respect to any asset, the asset’s
adjusted basis for federal income tax purposes, except as follows:

                        (i) the initial Gross Asset Value of any asset contributed by a
                               Member to the Company shall be the gross fair market value
                               of such asset, as determined by the contributing Member and
                               the Company;

                        (ii) the Gross Asset Values of all Company assets shall be adjusted
                                to equal their respective gross fair market values, as
                                determined by the Manager, as of the following times: (i) the
                                acquisition of an additional interest in the Company by an y
                                new or existing Member in exchange for more than a de
                                minimis Capital Contribution; (ii) the distribution by the
                                Company to a Member of more than a de minimis amount of
                                Company property as consideration for an interest in the
                                Company; and (iii) the liquidation of the Company within
                                the meaning of Regulation 1.704-1(b)(2)(ii)(g); provided,
                                however, that the adjustments pursuant to clauses (i) and (ii)
                                above shall be made only if the Manager reasonably
                                determines that such adjustments are necessary or
                                appropriate to reflect the relative economic interests of the
                                Members in the Company;

                        (iii) the Gross Asset Value of any Company asset distributed to any
                                Members shall be the gross fair market value of such asset
                                on the date of distribution; and

                        (iv) the Gross Asset Values of Company assets shall be increased
                               (or decreased) to reflect any adjustments to the adjusted
                               basis of such assets pursuant to Code Section 734(b) or Code
                               Section 743(b), but only to the extent that such adjustments
                               are taken into account in determining Capital Accounts
                               pursuant to Regulation 1.704-1(b)(2)(iv)(m) and Section
                               9.6(f) of this Operating Agreement.

               1.24 “Improvements” shall mean the (a) buildings, (b) landscaping, parking,
sidewalks and (c) all supporting infrastructure of the Property, including but not limited to: (i)
roads on the Property; and (ii) utilities (sewer, water, electricity, gas, telephone, fiber optic lines,
storm water, drainage, signage etc.).

                                                   5

                                          Company Name
            1.25 “Initial Capital Contributions” shall mean the contributions to the capital of
the Company made by the Members as described in Section 8.1 and as shown on Exhibit A
attached.

                1.26 “Initial Return Base” with respect to any Member as of any particular date
means the positive difference, if any, of the sum of all cash amounts contributed by the Member
to the capital of the Company as the Member’s Initial Capital Contribution pursuant to Section
8.1 minus the aggregate cumulative amount of all items distributed to the Member pursuant to
Sections 10.3(a), 10.3(b), and 14.2(e) through that date.

              1.27 “IRC” or “Code” shall mean the Internal Revenue Code of 1986, or
corresponding provisions of subsequent superseding federal revenue laws, as amended.

                1.28 “Majority in Interest” and “Majority Vote”. A “Majority in Interest shall
mean a combination of any Members who, in the aggregate, own more than fifty percent (50%)
of the Units of Membership Interest owned by all Members as of such time. Within a class, a
“Majority in Interest” shall mean a combination of any Members who, in the aggregate, own
more than fifty percent (50%) of the Units of Membership Interest owned by all Members of
such class. A “Majority Vote” upon a measure shall occur if (a) a Majority of Members in each
class votes in favor of such measure, or (b) more than one half of all Class A Units are voted in
favor of a measure and a Majority in Interest (including such Units) of the Company is voted in
favor of the measure1.29 “Manager” shall mean L. Ted Prosser and shall also mean any Person
who becomes the Manager pursuant to the provisions of Section 5.3 of this Operating
Agreement.

              1.30 “Member” shall mean each of the parties who execute a counterpart of this
Operating Agreement as a Member, and each Person who may hereafter become a Member. To
the extent a Manager has purchased Membership Interests in the Company, he shall have all the
rights of a Member with respect to such Membership Interests, and the term “Member” as used
in this Operating Agreement shall include a Manager to the extent he has purchased such
Membership Interests in the Company.

               1.31 “Member Nonrecourse Debt” shall have the meaning set forth in Section
1.704-2(b)(4) of the Regulations.

               1.32 “Member Nonrecourse Debt Minimum Gain” shall mean an amount, with
respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would
result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in
accordance with Section 1.704-2(i)(3) of the Regulations.

              1.33 “Member Nonrecourse Deductions” shall have the meaning set forth in
Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Regulations.

                1.34 “Membership Interest” shall mean a Member’s entire interest in the
Company and the right to participate in any decision or action of or by the Members granted
pursuant to this Operating Agreement and the Act.

                                               6

                                       Company Name
                1.35 “Nonrecourse Deductions” shall have the meaning set forth in Section 1.704-
2(b)(1) of the Regulations.

                1.36 “Nonrecourse Liability” shall have the meaning set forth in Section 1.704-
2(b)(3) of the Regulations.

                1.37 “Offering Memorandum” shall mean the confidential private offering
memorandum dated the ____ day of __________, 20____(Year) distributed to each Member
prior to the date of this Operating Agreement.

              1.38 “Operating Agreement” shall mean this Operating Agreement as originally
executed and as amended from time to time.

               1.39 “Person” shall mean any individual or Entity, and their respective heirs,
executors, legal representatives, successors, and assigns when the context so permits.

               1.40 “Profits” and “Losses” shall mean, for each Fiscal Year or other period, an
amount equal to the Company’s taxable income or loss for such year or period, determined in
accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss or
deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included
in taxable income or loss), with the following adjustments:

                      (i) any income of the Company that is exempt from federal income
                             tax and not otherwise taken into account in computing
                             Profits or Losses shall be added to such taxable income or
                             loss;

                      (ii) any expenditures of the Company described in Code Section
                             705(a)(2)(B) or treated as Code Section 705(a)(2)(B)
                             expenditures pursuant to Regulation Section 1.704-
                             1(b)(2)(iv)(i), and not otherwise taken into account in
                             computing Profits or Losses shall be subtracted from such
                             taxable income or loss;

                      (iii) in the event the Gross Asset Value of any Company asset is
                              adjusted pursuant to Section 1.1(ee)(ii) or Section
                              1.1(ee)(iv) hereof, the amount of such adjustment shall be
                              taken into account as gain or loss from the disposition of
                              such asset for purposes of computing Profits or Losses;

                      (iv) gain or loss resulting from any disposition of Company
                            property with respect to which gain or loss is recognized for
                            federal income tax purposes shall be computed by reference
                            to the Gross Asset Value of the property disposed of,
                            notwithstanding that the adjusted tax basis of such property
                            differs from its Gross Asset Value;

                                               7

                                       Company Name
                       (v) in lieu of the depreciation, amortization, and other cost
                             recovery deductions taken into account in computing such
                             taxable income or loss, there shall be taken into account
                             Depreciation for such Fiscal Year or other period; and

                       (vi) any items which are specially allocated pursuant to Secti on 9.6
                              hereof shall not be taken into account in computing Profits
                              or Losses.

              1.41 “Profit/Loss Interest” shall mean the percentage interest attributed to each
Member of Profits and Losses of the Company as shown on as determined from time to time,
based upon the number of Units held by the Member, relative to the total number of Units
outstanding. The Profits/Loss Interest may be adjusted based upon the right of Class B Members
to receive a Preferred Return, as determined in the reasonable judgment of the Manager and
accountants employed on behalf of the Company. If and to the extent that a provision calls for a
change in the Profit/Loss Interest of a Member, a corresponding reallocation of Units shall be
implied and shall automatically occur.

              1.42 “Project” shall refer to the ownership, development, and management of the
Property and the Improvements thereupon (including, without limitation, any joint ventures
formed by the Company for the ownership, development or management of the Property and the
Improvements thereupon).

               1.43 “Property” shall mean the real property and improvements, comprised
primarily of commercial buildings, purchased at any time by the Company, or any replacement
thereof, together with all tenements, hereditaments, easements, rights-of-ways, appurtenances,
passages, water rights, water courses, waste disposal rights, riparian rights, drainage rights and
other rights, liberties and privileges thereon or in any way now or hereafter appertaining,
including all the right, title and interest of the current owners of the parcels comprising the
Property in an to all public and private streets, roads, avenues, alleys, passageways, water rights,
in front of, adjoining or abutting the Property or any portion thereof, less any portion thereof
which may be sold from time to time. A description of attributes that the Manager will seek to
meet in obtaining Property is described in attached property summary ________________-
which is shown on Exhibit B attached hereto and incorporated herein by reference

               1.44 “Purchase Option” shall have the meaning assigned to it in Section 10.3.

               1.45 “Purchase Option Assignee” shall have the meaning assigned to it in Section
10.4.

               1.46 “Purchasing Members” shall have the meaning assigned to it in Section 10.3.

               1.47 “Regulation” or “Regulations” shall include proposed, temporary, and final
regulations promulgated by the U. S. Department of Treasury under the IRC in effect as of the
date of filing the Articles of Organization and the corresponding sections of any regulations
subsequently issued that amend or supersede those regulations.

                                                 8

                                        Company Name
               1.48 “Regulatory Allocations” shall have the meaning assigned to it in Section
9.7.

               1.49 “Securities Acts” shall have the meaning assigned to it in Section 13.16(a)(i).

               1.50 “Subsequent Contributions” shall have the meaning assigned to it in Section
5.2(x).

               1.51 “Subsequent Contribution Return Base” with respect to any Member as of
any particular date means the positive difference, if any, of the sum of all Subsequent
Contributions contributed by the Member to the capital of the Company pursuant to Section 8.2
through that date, minus the aggregate cumulative amount of all items distributed to the Member
pursuant to Sections 9.2(a), 10.2(a) , and 14.2(d) through that date.

               1.52 “Subsidiary” shall mean any partially or wholly-owned subsidiary
corporation, limited liability company or other entity of the Company.

               1.53 “Tax Matters Partner” or “TMP” shall mean the person designated as tax
matters partner pursuant to Section 9.16.

              1.54 “Units of Membership Interest” or “Units” the Units which represent the
amount of each Member’s Membership Interest.

               1.55 “Withdrawing Member” shall have the meaning assigned to it in Section
10.2.



                    SECTION 2 FORMATION OF THE COM PANY

       2.1 Formation. The Company was formed on the ___ day of
_______________, 20_____(Year), upon the filing with the North Carolina
Secretary of State of the Articles of Organization of the Company. In consideration
of the mutual premises and covenants contained herein and other goo d and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree that the rights and obligations of the parties and the
administration and termination of the Company shall be governed by this Operating
Agreement, the Articles of Organization and the Act.

          2.2 Name. The name of the Company is (Company), LLC.

      2.3 Principal Place of Business. The address of the principal place of
business of the Company within the State of North Carolina shall be (Address), or
such other place as the Manager shall designate. The Company may locate its places
of business and registered office at any other place or places as the Manager may
from time to time deem advisable.


                                                9

                                        Company Name
       2.4 Registered Office and Registration Agent. The Company’s initial
registered office shall be at the office of its registered agent at (Address), and the
name of its initial registered agent at such address shall be (Name). The registered
office and registered agent may be changed from time to time by filing t he address
of the new registered office and/or the name of the new registered agent with the
North Carolina Secretary of State pursuant to the Act.

       2.5 Term. The term of the Company shall be perpetual, unless the Company is
earlier dissolved in accordance with either the provisions of this Operating
Agreement or the Act.



                        SECTION 3 BUS INESS OF COMPANY

       3.1 Permitted Business. The business of the Company shall be:

              (i) (INSERT Detail Description of what business actions, activities and duties are)

              (ii) to do all things reasonably incidental thereto, including encumbering,
mortgaging, selling, operating or managing the Project;

            (iii) to exercise all other powers necessary of or reasonably connected with the
Company’s business that may be legally exercised by limited liability companies under the Act;
and

              (iv) to engage in all activities necessary, convenient, or incident to any of the
foregoing.

All of the foregoing shall be conducted or undertaken in accordance with all of the terms and
conditions of, and subject to the limitations set forth in, this Operating Agreement.

                                  SECTION 4 MEMBERS

       4.1 Names and Addresses of Members. The names and addresses of the
Members are as shown on Exhibit A attached hereto and incorporated herein by
reference. Exhibit A shall be updated and amended from time to time to show
changes in the membership.



              SECTION 5 RIGHTS AND DUTIES OF THE MANAGER

       5.1 Management.


                                               10

                                       Company Name
      (i) The business and affairs of the Company shall be managed by its
Manager. The Company shall have one (1) Manager, who is n ot required to be a
resident of the State of North Carolina or a Member of the Company. The name and
address of the initial Manager is as follows:

               Name                                      Address
               (Name)                                    (Address)
               (ii) The assets, affairs and operations of the Company shall be managed by the
Manager. The Manager shall have full and complete authority, power and discretion to manage
and control the business of the Company, to make all decisions regarding those matters and to
perform any and all other acts or activities customary to or incident to the management of the
Company’s business, except only as to those acts and things as to which approval by the
Members is expressly required by the Articles of Organization, this Operating Agreement, the
Act or other applicable law. All references herein to any action to be taken by the Company shall
mean action taken in the name of the Company and on its behalf by the Manager.

      5.2 Certain Powers of Manager. Without limiting the generality of Section
5.1 above, the Manager shall have power and author ity, on behalf of the Company,
to:

               (i) enter upon, and take possession of, any property belonging to the Company,
and collect any rents, issues, profits or income of any property of the Company;

             (ii) pay any and all taxes, charges and assessments that may be levied, assessed or
imposed upon any of the property of the Company;

               (iii) construct any Improvements on the Property it deems advisable;

              (iv) cause to be made any necessary repairs or alterations of improved Company
property as may be reasonably necessary in the ordinary course of the business of the Company;

               (v) obtain insurance for Company property and business and file proof of any
losses payable under the insurance and execute all instruments relating to the claims adjustment
process, including receipts, releases or discharges;

               (vi) demand, sue for, collect, recover and receive all goods, claims, debts, money,
interest and demands owing the Company and institute any action, suit or other legal proceeding
for the recovery of any land, buildings or property which the Company may be entitled to
possess;

              (vii) make, execute, endorse, accept, collect and deliver any and all bills of
exchange, checks, drafts, notes and trade acceptances, and open and pay into and draw from a
bank account or accounts of the Company;



                                               11

                                       Company Name
               (viii) pay all sums of money that may hereafter be owing by the Company upon
any bill of exchange, check, draft, note or trade acceptance made, executed, endorsed, accepted
or delivered by or for the Company;

                (ix) negotiate and execute any financing arrangements deemed necessary or
desirable by the Manager to meet the capital or operating needs of the Company in its
development, leasing, construction and management of the Property (including, without
limitation, financing arrangements for the construction and development of the Property and
Improvements on any portion or portions of the Property and to meet cash flow short falls);

                 (x) make calls for additional Capital Contributions (“Subsequent Contributions”)
from the Members in order to carry out the purposes of the Company so long as the Manager
shall first obtain the approval of a Majority in Interest of the Class B Members before it makes a
call for a Subsequent Contribution to such Class B Members, including, without limitation:

                       (i) funding to prevent a default under any bank or other loan to the
                              Company;

                       (ii) funding for property ownership (including, without limitation,
                               calls for Subsequent Contributions to make up any shortfall
                               in equity requirements for permanent financing on existing
                               Improvements), marketing, administrative, construction and
                               development, or other operating expenditures of the
                               Company including, without limitation, additional funds
                               needed (collectively, “Funding Deficits”); provided,
                               however, that (1) the Manager shall first attempt to have the
                               Company borrow sufficient funds to meet the Funding
                               Deficits from third parties on terms and conditions
                               satisfactory to the Manager; and (2) the call is for the
                               purpose of raising funds in excess of the $15,000,000 loan
                               proceeds from the initial financing of the Property.

              (xi) defend, settle, adjust, submit to arbitration and compromise all claims or
proceedings brought against the Company by any person, firm, association or corporation;

                (xii) subject to the provision of Section 5.2(f), file any proof of claim or otherwise
participate in any proceeding, under the Bankruptcy Code or any law of any state or country, in
connection with any claim, debt, money or demand due to the Company, and receive any
dividend or distribution to be made to the Company in that proceeding;

               (xiii) hire property managers, clerical help, accountants, attorneys, clerks,
workmen, landsmen and others, and to remove them and appoint others in their place, and to pay
and allow to the persons so employed such salaries, wages or enumerations as the Manager shall
determine;



                                                 12

                                         Company Name
               (xiv) subject to the provisions of Sections 5.2(f) and (i), constitute and appoint in
his place and stead, and as a substitute, one or more attorneys-in-fact for the Company with full
power of revocation;

               (xvi) pay the operating expenses of the Company as they become due;

               (xv) keep the books of account for the Company;

             (xvi) negotiate the terms of, and execute any documentation related to, any lease
agreement deemed necessary or desirable for the Company by the Manager;

             (xvii) subject to Section 6.3, negotiate the terms of, and execute any
documentation related to, the sale of part or all of the Property as the Manager shall determine;

               (xviii) create, manage and administer one or more Subsidiaries, and to contribute,
assign or otherwise transfer any property, contracts, liabilities or any other asset, right or
obligation of the Company to any Subsidiary, and to do any and all things that the Manager is
authorized, empowered and/or directed to do for the Company through any Subsidiary, as the
Manager shall determine;

              (xix) contribute some or all of the Property, or interests therein, to a qualified
       organization (as defined in Code Section 170(h));

             (xx) take any actions contemplated by the Offering Memorandum; and
             (xxi) do and perform all other acts as may be necessary or appropriate to the
       conduct of the Company’s business.

        The Manager may, in his discretion, delegate any or all of the duties and authority to
persons whom the Manager expects will carry out such duties and properly execute such
authority.

        5.3 Term and Resignation. The Manager has been appointed as the Manager
until its resignation or removal. the Manager may, in his or its discretion, appoint a
successor Manager, who shall assume the position of Manager upon the death,
removal, retirement or resignation of the Manager. The Manager agrees that he shall
not resign or retire except upon thirty (30) days’ prior written notice to the
Members. A Manager may be removed upon (a) a material br each of fiduciary duty
to the Company or the conviction of a felony related to management of the company
or to management of real estate, together with (b ) the vote of a Majority in Interest
of the Class B Members. If the Manager dies, resigns, retires, or is removed, and
no successor Manager is appointed as provided above, the Members shall, by
Majority vote elect a Person to serve as a Manager to replace any Manager no
longer able to serve in such capacity due to such Manager’s resignation or
disqualification by a Majority Vote of the Members. A Manager who resigns or
retires may rescind such decision at any time until his successor has assumed the
position.

                                                13

                                        Company Name
      5.4 Duties of Manager. The Manager shall be charged with the full
responsibility for managing and promoting the Company’s purpose and business.
The Manager shall devote his diligent efforts to the business and affairs of the
Company, including such time as shall be required, in the reasonable opinion of the
Manager, for the proper conduct of the busin ess of the Company. The Manager is
not expected to devote his full time to the Company.

       5.5 Other Activities of Manager. The Members acknowledge that the services
of the manager to the Company are not exclusive and that Manager is presently, or
may become in the future, the manager of other companies, or associated in some
other manner with other businesses. The Manager may engage in all such other
business ventures, and any other business of any nature or description,
independently or with others. Such business ventures may include real estate
ownership and management of properties similar to the Property of the Company,
and it is further acknowledged that such other properties may be in the same market
and nominally compete with the Property of the Compan y. The Manager and its
employees and Affiliates may invest in and manage real estate and other real estate
projects, without limitation. In determining whether to offer real estate to the
Company, the Manager may subjectively consider subjective factors, such as the fit
of such real estate with investments of the Company, the capital available in the
Company, the degree of diversification within real estate markets , and the needs of
other entities. Neither the Company nor any of the Members shall have any r ights
by virtue of this Operating Agreement in or to such independent ventures or
investments or to the income or profits derived therefrom.

       5.6 Bank Accounts. The Manager may, from time to time, open bank accounts
in the name of the Company, and the Man ager shall be the sole signatory thereon.

       5.7 Reliance on Authority of Manager. No Person dealing with the Manager
or the Company shall be required to determine the authority of the Manager to make
any undertaking on behalf of the Company or to determine a ny fact or circumstance
bearing upon the existence of such authority. No purchaser of any property or
interest owned by the Company shall be required to determine the sole and
exclusive authority of the Manager to execute and deliver, on behalf of the
Company, any and all documents and instruments in connection therewith or to see
to the application or distribution of revenues or proceeds paid or credited in
connection therewith.

      5.8 Liability of the Manager. To the maximum extent that North Carolina law
in effect from time to time permits limitation of the liability of managers, no
manager shall be liable to the Company or its members for money damages.
No amendment of this Operating Agreement shall affect in any respect the
applicability of the preceding sentence with respect to any act or failure to act
which occurred before such amendment.



                                        14

                                  Company Name
       5.9 Indemnification. To the maximum extent permitted by North Carolina law
in effect from time to time, the Company shall indemnify and, without requiring a
preliminary determination of the ultimate entitlement to indemnification, shall pay
or reimburse expenses in advance of final disposition of a proceeding to any
manager or former manager who is made a party to the proceeding by reason of its
service in that capacity. The Company may also provide such indemnification to
any person who is an employee or agent of the Company or a manager.

      5.10 Compensation and Commission. The Manager or its Affiliates or
employees may receive compensation from the Company from time to time for
services rendered in the administration of the Company.

       5.11 No Management By Non-Manager Members. Except as expressly
authorized in this Operating Agreement, the Members (excluding the Manager) shall
take no part in, or at any time interfere in any manner with, the management,
conduct or control of the Company’s business and operations and shall have no
right or authority to act for or by the Company in any manner whatsoever. Except as
otherwise provided in the Act, the rights and powers of the M embers shall not
extend beyond those set forth in this Operating Agreement and any attempt to
participate in the control of the Company in a manner contrary to the rights or
powers granted herein shall be null and void and without force and effect. The
exercise by a Member of any of the rights granted him hereunder shall not be
deemed to be taking part in the control of the business of the Company and shall not
constitute a violation hereof. Unless authorized to do so by this Operating
Agreement or by the Manager, no Member (except the Manager), attorney-in-fact,
employee, or other agent of the Company shall have any power or authority to bind
the Company in any way, to pledge its credit o r to render it liable pecuniar y for any
purpose.

      5.12 Expenses of Manager. The Company will reimburse the Manager for all
expenses incurred by the Manager in connection with its service to the Company.
Nothing contained in this Section 5.12 is intended to affect the Profit/Loss Interest
of any Manager who is also a Member or the amounts that may be payable to the
Manager by reason of its respective Profit/Loss Interest or the amounts that may be
owed the Manager for any loan made by Manager to the Company.

       5.13 Waiver or Determination of Conflicts.

               The Members acknowledge that the Manager may cause the Company to enter
into agreements with the Manager and/or its Affiliates and that the Manager and/or its Affiliates
may receive fees for services rendered thereunder. Unless the further Agreements are unfair to
the Company, the Members waive any conflict associated with the fact that the Manager may
cause the Company to enter into such further Agreements and that the Manager and/or its
Affiliates may receive fees thereunder.



                                               15

                                       Company Name
                b.    The Manager shall have no obligation to account to the Company or hold
as trustee for it any profit or benefit derived (with or without the informed consent of the
members) by the Manager from any transaction connected with the formation, conduct or
liquidation of the Company or from any use by the Manager of its property.

                c.      In the event that the Manager desires a conclusive determination as to the
fairness of a transaction or action in which the Manager may have a conflict of interest, he may,
after submitting all relevant facts of the transaction or action, rely upon the approval or
ratification of any three (3) Class B Members who are not related to the Manager within three
degrees by blood or marriage and who are not themselves interested in the transaction. The
decision of such three (3) Class B members shall be final and binding upon the Company, and its
Members.

       5.14 Manager Meetings. The Manager (or Managers, if there is ever more
than one Manager) of the Company may hold meetings, both regular and special, at
any place within or without the State of North Carolina, at any interval and at such
time and place as may be scheduled by the Manager. Unless required by the Act,
notice is not required for any meeting, whether special or scheduled. When any
notice is required to be given to any Manag er, a waiver of the notice in writing
signed by the Person entitled to the notice, whether before, at or after the time
stated therein, shall be equivalent to the giving of the notice. The Manager shall
not be required to produce written minutes or resolu tions of meetings of the
Managers.

       5.15 Action Without a Meeting. Any action which under any provision of the
Act or this Operating Agreement is to be taken at a meeting of the Manager (or
Managers, if there is ever more than one Manager) may be taken with out a meeting
by written consent signed by the Manager (or all Managers who would be entitled to
vote upon such action at a meeting, if there is ever more than one Manager). Such
written consent shall be kept with the records of the Company.



             SECTION 6 RIGHTS AND OBLIGATIONS OF MEMBERS

       6.1 Limitation of Liability. Each Member’s liability shall be limited as set
forth in this Operating Agreement, the Act, and other applicable law.

      6.2 Company Debt Liability. A Member shall not be personally liable for any
debts or losses of the Company beyond the Member’s respective Capital
Contributions and any obligation of the Class B Member under Article 8 below to
make Capital Contributions, except as provided in Section 6. 7.

       6.3 Approval of Sale of All Assets. The sale, exchange, or other disposition
of all, or substantially all, of the Company’s assets (other than in the ordinary
course of the Company’s business) which is to occur as part of a single transaction

                                               16

                                       Company Name
or a plan involving a series of transactions shall requir e the approval of a Majority
Vote of the Members, unless the approval of a greater percentage of Membership
Interests is required under the Act.

       6.4 Priority and Return of Capital. Except as may be expressly provided in
Article 9, no Member shall have priority over any other Member, either for the
return of Capital Contributions or for Profits, Losses, or distributions; provided that
this section shall not apply to loans (as distinguished from Capital Contributions)
which a Member has made to the Company.

       6.5 Liability of a Member to the Company. A Member who rightfully receives
the return on whole or in part of its contribution (as defined in N.C.G.S. Section
57C-4-02 of the Act) is nevertheless liable to the Company only to the extent now
or hereafter provided by the Act. A Member who receives a distribution made by
the Company which is either in violation of this Operating Agreement, or made
when the Company’s liabilities exceed its assets (after giving effect to the
distribution) is liable to the Company for a period of six (6) years after the
distribution for the amount of the distribution.

      6.6    The Units of Membership Interest shall be divided into two (2) classes.
(a) Class A Members. ____Units of Class A Membership have been subscribed. The holders of
such Units shall be the Class A Members, subject to the provisions below.
             (i)     Voting. It is anticipated that the Class A Members shall have one vote for
             each Unit held. Class A Members shall vote upon matters as a separate class. See
             definition of “Majority Vote.”
             (ii)    Class A Member Guarantees and Special Obligations. The Members
             acknowledge the Company’s intention to enter into financing arrangements for
             the purposes of acquisition, construction and development of the Property and
             Improvements, if any, to be constructed on the Property, as the Manager may
             deem necessary or advisable from time to time, subject to the requirements, if
             any, set forth in this Agreement. In the event that the Manager determines that the
             Company will undertake construction or development and such financing
             arrangement has a requirement of guarantees, such guarantees will be provided by
             the Class A Member (e.g., the Class A Member, or the principals of the Class A
             Member). The Class A Member or principal of the Class A Member may charge
             a guarantee fee of one percent (1%) per annum of the indebtedness, payable
             prospectively upon the guarantee being made and on each anniversary thereafter.
             (iii) Subordination of Return. The distributions to Class A Members are
             subordinated to the Preferred Return of Class B Members.
             (iv)   No Additional Class A Units. No additional Class A Units shall be issued
             without the consent of a Majority in Interest of the Class B Members.




                                             17

                                     Company Name
(b)   Class B Units The Company may offer Class B Units at such amounts per Units as the
Manager may determine:


              (i)     Voting. It is anticipated that the Class B Members shall have one vote for
              each Unit held. Class B Members shall vote upon matters as a separate class. See
              definition of “Majority Vote.”
              (ii)    Preferred Return. Each Class B Member shall be entitled to receive
              distributions of up to ten percent (10%) (cumulative, noncompounded) upon his or
              her Subsequent Contribution Return Base before other Members receive
              distributions; the Class B Members shall further be entitled to receive distributions
              of up to ten percent (10%) (cumulative, noncompounded) upon their Initial Return
              Base prior to other Members receiving distributions, except upon Subsequent
              Contributions. The return described in the preceding sentence is referred to as
              “Preferred Return.” Subsequently, after sufficient funds are distributed to other
              members to provide equal distributions on a per Unit basis, all Class A Units and
              Class B Units shall share equally in Cash Flow.
              (iii) No Liability for Unpaid Returns. Neither the Company, the Managers nor
              any Member shall be liable for any unpaid returns provided under this Section,
              unless and to the extent that payments are made upon Class A Units in violation
              of the terms of this Agreement.
      6.7     Voting Rights. Except as expressly provided herein, the vote, approval,
agreement or consent of the Members shall not be required for any action by the Manager or the
Company.

        6.8   Removal of Members. A Member may be removed by the Manager at any time.
A Member so removed shall be treated as a Withdrawing Member, provided that any amount due
   to the member upon withdrawal shall be paid within thirty (30) days of the amount being
                                        determined.

                       SECTION 7 MEETINGS OF MEMBERS

       7.1 Meetings. Meetings of the Members, for any purpose or purposes, unless
otherwise required by the Act, may be called by the Manager or by any Member or
Members holding at least twenty-five percent (25%) of the outstanding Units. The
call shall state the nature of the business to be transa cted.

       7.2 Place and Manner of Meetings. The Members may designate any place,
either within or outside the State of North Carolina, as the place of meeting for any
meeting of the Members. If no designation is made, or if a special meeting be
otherwise called, the place of meeting shall be the then principal executive office of
the Company in the State of North Carolina. Members may participate in an annual,
special or other meeting by (or conduct the meeting through) the use of a telephone
or other means of communication by which all Members participating may
simultaneously hear each other during the meeting.
                                               18

                                       Company Name
       7.3 Notice of Meetings. Except as provided in Section 7.4 below, written
notice stating the place, day, and hour of the meeting and the purpose or purpo ses
for which the meeting is called shall be delivered no fewer than ten (10) nor more
than fifty (50) working days before the date of the meeting, either personally, by
facsimile transmission, if possible or by mail, by or at the direction of the Manager
or Person calling the meeting, to each Member entitled to vote at the meeting.

       7.4 Meeting of All Members. If all of the Members shall meet at any time and
place, either within or outside the State of North Carolina, and consent to the
holding of a meeting at that time and place, the meeting shall be valid without call
or notice, and at the meeting lawful action may be taken.

       7.5 Record Date. For the purpose of determining Members entitled to notice
of or to vote at any meeting of Members or any adjournment of the meeting, or
Members entitled to receive payment of any distribution, or to make a determination
of Members for any other purpose, the date on which notice of the meeting is
mailed or the date on which the resolution declaring the distribution is ad opted, as
the case may be, shall be the record date for the determination of Members. When a
determination of Members entitled to vote at any meeting of Members has been
made as provided in this section, the determination shall apply to any adjournment
of the meeting.

       7.6 Quorum. Members holding at least a Majority in Interest, represented in
person or by proxy, shall constitute a quorum at any meeting of Members. In the
absence of a quorum at any meeting of Members, a majority of the Units so
represented may adjourn the meeting from time to time for a period not to exceed
sixty (60) days without further notice. However, if the adjournment is for more than
sixty (60) days without further notice, or if after the adjournment a new record date
is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given
to each Member of record entitled to vote at the meeting. At an adjourned meeting
at which a quorum shall be present or represented, any business may be transacted
which might have been transacted at the meeting as originally noticed. The
Members present at a duly organized meeting may continue to transact business
until adjournment, notwithstanding the withdrawal during the meeting of that
number of Units whose absence would cause less than a quorum.

       7.7 Manner of Acting. If a quorum is present, an action by a Majority Vote
shall be the act of the Members, unless the vote of a greater or lesser proportion or
number is otherwise required by the Act, by the Articles of Organization, or by thi s
Operating Agreement. Unless otherwise expressly provided in this Operating
Agreement or required under applicable law, Members who have an interest
(economic or otherwise) in the outcome of any particular matter upon which the
Members vote or consent may vote to consent upon any such matter and their
Profit/Loss Interest, vote or consent, as the case may be, shall be counted in the
determination of whether the requisite matter was approved by the Members.


                                         19

                                  Company Name
      7.8 Proxies. At all meetings of Members, a Member may vote in person or by
proxy executed in writing by the Member or by a duly authorized attorney -in-fact.
The proxy shall be filed with the Manager of the Company before or at the time of
the meeting. No proxy shall be valid after eleven (11) months from the date of its
execution, unless otherwise provided in the proxy.

      7.9 Action by Members Without a Meeting. Action required or permitted to be
taken at a meeting of Members may be taken without a meeting if the action is
evidenced by one or more written consents describing the action taken, signed by
Members having sufficient Units to comprise a Majority Vote if all Units of
Membership Interest in the Company were voted. Notice of an Action taken by the
Members without a meeting shall be sent to all Member s within ten (10) days of the
action being taken. No action without a meeting shall be taken without written
consent of the Manager.

       7.10 Waiver of Notice. When any notice is required to be given to any
Member, a waiver of the notice in writing signed by the Person entitled to the
notice, whether before, at, or after the time stated therein, shall be equivalent to the
giving of the notice.

                           SECTION 8
      CONTRIBUTIONS TO THE COMPANY AND CAPITAL ACCOUNTS

       8.1 Members’ Capital Contributions. Each Member shall contribute in cash
and/or property in such amount as set forth in the appended Exhibit A as its share of
the Initial Capital Contributions of the Company. Notwithstanding anything to the
contrary herein, all Capital Contributions shall be net of liabilities, including
transfer taxes. The Manager may determine the value of any property contributed
for Class B Units.

       8.2 Subsequent Capital Contribution s.

              (i) Subsequent Contributions. If the Company (e.g., pursuant to the Manager’s
authority under Section 5.2(j)) makes a call for Subsequent Contributions then the Members
agree, upon 45 days’ written notice, to make Subsequent Contributions to the Company
necessary to satisfy such capital calls. The amount requested from each Member shall be in
proportion to such Member’s respective number of Units in the Company (the Member’s
“Additional Obligation”), as such Units may change from time to time during the term of this
Operating Agreement.

               (ii) Failure to Contribute Additional Capital. If any Member (the “Defaulting
Member”) fails to meet its Additional Obligation as required under Section 8.2(a) above, then the
Manager shall provide written notice (the “Shortfall Notice”) to each of the remaining Members
of their right to make Subsequent Contributions to meet the shortfall in such Member’s
Additional Obligation. This right will be allocated among the Members who elect to contribute
(the “Contributing Members”) in the proportion they mutually agree upon, or, in the absence of
                                               20

                                       Company Name
agreement, in the ratio that each of the Contributing Member’s number of Units bears to the
aggregate number of Units of all Contributing Members as of the date of the Shortfall Notice.
The Contributing Members must give written notice to the Company of their election to exercise
their right to make additional contributions under this Section 8.2(b) within ten (10) days
following delivery of the Shortfall Notice, and must make such contribution within twenty (20)
days following delivery of the Shortfall Notice.

                (iii) Adjustment of Profit/Loss Interests for Subsequent Contributions. As of each
additional contribution of capital to the Company, the Profit/Loss Interests of the Members (i.e.
Units) shall be adjusted to reflect percentage interests equal to the relative total aggregate Capital
Contributions of all of the Members (i.e., without any penalty for failure to make a capital
contribution other than an adjustment of Profit/Loss Interests based upon a dollar-for-dollar
adjustment to the Members' total aggregate Capital Contributions). All adjustments to a
Member’s Profit/Loss Interest in the Company shall be permanent, shall not be compounded
(i.e., no more than one adjustment shall be made to a Member’s Profit/Loss Interest for each
failure to make an Additional Capital Contribution) and shall not otherwise be altered except as
provided in this Operating Agreement or with the mutual consent of all of the Members hereto.
The Manager is authorized and required to execute an amendment to this Operating Agreement
evidencing such adjustment in the Profit/Loss Interests of the Members, but such adjustment
shall be effective whether or not such an amendment is executed.

               (iv) Adjustment of Profit/Loss Interests for Subsequent Contributions. As of each
additional contribution of capital to the Company, the Profit/Loss Interests of the Members shall
be adjusted to reflect percentage interests equal to the relative total aggregate Capital
Contributions of all of the Members. All adjustments to a Member’s Profit/Loss Interest in the
Company shall be permanent and shall not otherwise be altered except as provided in this
Operating Agreement or with the mutual consent of all of the Members hereto. The Manager is
authorized and required to execute an amendment to this Operating Agreement evidencing such
adjustment in the Profit/Loss Interests of the Members, but such adjustment shall be effective
whether or not such an amendment is executed.

 SECTION 9 ALLOCATIONS, INCOME TAX, DISTRIBUTIONS, ELECTIONS
                         AND REPORTS

      9.1 Profits and Losses. Except as otherwise provided herein, Profits and
Losses shall be allocated as follows:

             (i) The Company’s Profits, if any, for each Fiscal Year shall be allocated among
the Members for both financial accounting and income tax purposes in the following order of
priority:

                      (a) First, to the Members in an amount up to, but not greater than,
               an amount equal to the excess of the aggregate Losses theretofore
               allocated to those Members pursuant to Section 9.1(b)(i) below, over the
               aggregate amount of Profits theretofore allocated to those Members
               pursuant to this Section 9.1(a)(i), in proportion to, and in the inverse order
                                                 21

                                         Company Name
              of, the manner in which Losses were allocated under Section 9.1(b)(i)
              (and for this purpose attempting to match income character, i.e., capital
              gain to capital loss and ordinary income to ordinary loss); and

                     (b) Second, to the Class B Members up to the amount of Preferred
              Return due for Subsequent Contributions;

                    (c) Third, to the Class A Members up to the amount of ten percent
              (10%) of their Subsequent Contributions;

                    (d) Fourth, to the Class B Members up to the amount of Preferred
              Return due for Initial Contributions;

                     (e) Fifth to the Class A Members up to the Amount per Unit
              allocated to the Class B Members pursuant to Clause (d) above;

                     (f) Sixth to all of the Members based upon an equal distribution
              for each Unit held.

             (ii) The Company’s Losses, if any, for each Fiscal Year shall be allocated among
the Members for both financial accounting and income tax purposes in the following order of
priority:

                     (a) First, to the Members in proportion to the positive balances of
                            their Capital Accounts, until their Capital Accounts are
                            reduced to $0; and

                     (b) Second, any remaining Losses shall be allocated to the
                           Members in proportion to their Profit/Loss 
								
To top