Exhibit 10.3


 


HAMILTON
PARK TOWERS, LLC


 


LIMITED
LIABILITY COMPANY AGREEMENT


 


This Limited Liability Company
Agreement (the “Agreement”) of Hamilton Park Towers, LLC, a Delaware limited
liability company (as amended from time to time, the “LLC”) is entered into as
of the           day of October,
2009, by (a) its sole member, HPT Associates, LLC, a Delaware limited
liability company, (b) its managers, Harold Brown and NewReal, Inc.,
a Massachusetts corporation and (c) those individuals and/or entities
listed on Schedule A as “Independent Manager” and “Special Member”.


 


WHEREAS, the LLC has been
formed as a limited liability company under the Delaware Limited Liability
Company Act, 6 Del. C. § 18-01 et seq. (as
amended from time to time,  the “Act”) by the filing on the
date hereof of a Certificate of Formation (the “Certificate”) with the office
of the Secretary of State of the State of Delaware; and


 


WHEREAS, the parties hereto
wish to set out fully their respective rights, obligations and duties with
respect to the LLC and its business, management and operations.


 


NOW, THEREFORE, in
consideration of the mutual agreements contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:


 


1.             Name.  The name of the limited liability company
shall be “Hamilton Park Towers, LLC”. 
Sally E. Michael is hereby designated as an “authorized person” within
the meaning of the Act, and has executed, delivered and filed the Certificate
of Formation of the LLC with the Secretary of State of the Sate of
Delaware.  Upon the filing of the
Certificate of Formation with the Secretary of State of the State of Delaware,
her powers as an “authorized person” ceased, and the Member thereupon became
the designated “authorized person” and shall continue as designated “authorized
person” within the meaning of the Act. 
The Member or an Officer shall execute, deliver and file any other
certificates (and any amendments and/or restatements thereof) necessary for the
LLC to qualify to do business in any other jurisdiction in which the LLC may
wish to conduct business.  The existence
of the LLC as a separate legal entity shall continue until cancellation of the
Certificate of Formation as provided in the Act.


 


2.             Purpose.  The sole purpose of the LLC is to acquire,
own, hold, maintain, and operate that property located at 175 Freeman Street,
Brookline, Massachusetts (the “Property”), together with such other activities
as may be necessary or advisable in connection with the ownership of the
Property.  The LLC shall not engage in
any business, and it shall have no purpose, unrelated to the Property and shall
not acquire any real property or own assets other than those related to the
Property and/or otherwise in furtherance of the limited purposes of the LLC.


 


3.             LLC
Address.  The address of the
principal office of the LLC is c/o The Hamilton Company, Inc., 39 Brighton
Avenue, Boston, Massachusetts 02134.


 


4.             Registered
Office and Registered Agent.  The
registered office of the LLC in the State


 


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of Delaware is
c/o National Registered Agents, Inc., 160 Greentree Drive, Suite 101,
Dover, DE 19904.  The name of the
registered agent of the LLC at such address is National Registered Agents, Inc.


 


5.             Member.  The Member was admitted to the LLC as member
of the LLC upon its execution of counterpart signature page to this
Agreement.  The name and address of the
sole Member of the LLC is as follows:


 


HPT Associates, LLC


c/o The Hamilton Company, Inc.


39 Brighton Avenue


Boston, Massachusetts 02134


 


6.             Powers.  Subject to the terms of Section 19
below, the LLC shall have the power and authority to do any and all acts
necessary or convenient to or in furtherance of the purposes described in Article 2
hereof, including all power and authority, statutory or otherwise, possessed
by, or which may be conferred upon, limited liability companies under the Act
and under the laws of the State of Delaware.


 


7.             Management.


 


7.01         Designation of Managers.  Harold Brown and NewReal, Inc. are the
managers of the LLC.  In the event of the
withdrawal of either Manager, another person or entity (who may but need not be
the Member) may be added or substituted as the Manager by the Member.


 


7.02         Management of the LLC.  Subject to the provisions of this Agreement,
the overall management and control of the business and affairs of the LLC shall
be vested in the Managers.  Any Manager
may delegate his, her or its authority to another Manager as to any particular
matter, or as to all matters for a specified period of time by a writing duly
executed by such delegating Manager.


 


7.03         Limitation on Powers. 
Anything in this Agreement to the contrary notwithstanding, a Managers
shall not, without the consent of all of the other Managers, if applicable,
cause or permit the LLC to:


 


(a)           make any loans to a Manager or its Affiliates;


 


(b)                                 sell,
encumber or otherwise dispose of all or substantially all of the properties of
the LLC (a sale or disposition will be deemed to be “all or substantially all
of the properties of the LLC” if the sale or disposition includes the Property
or if the total value of the properties sold or disposed of in such transaction
and during the twelve months preceding such transaction is 66-2/3% or more in
value of the LLC’s total assets as of the end of the most recently completed
LLC fiscal year);


 


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(c)           to the fullest extent permitted by law, dissolve, wind-up,
or liquidate the LLC;


 


(d)                                 merge,
consolidate or acquire substantially all the assets of another person or
entity; or


 


(e)           change the nature of the business conducted by the LLC.


 


7.04         Binding the LLC. The signature of a Manager on any
agreement, contract, instrument or other document shall be sufficient to bind
the LLC in respect thereof, and conclusively evidence the authority of such
Manager and the LLC with respect thereto, and no third party need look to any
other evidence or require the joinder or consent of any other party.  The LLC, and the Member, or any Manager on
behalf of the LLC, may enter into and perform the Loan Documents and all
documents, agreements, certificates, or financing statements contemplated
thereby or related thereto, all without any further act, vote or approval of
any Member, Manager or other Person notwithstanding any other provision of this
Agreement, the Act or applicable law, rule or regulation.  The foregoing authorization shall not be
deemed a restriction on the powers of the Member or any Manager to enter into
other agreements on behalf of the LLC


 


7.05         Compensation of Managers. The LLC may compensate the
Managers for the Managers’ services to the LLC.


 


7.06         Contracts with Members. Subject to the terms of Section 19
below, the LLC may engage in business with, or enter into one or more
agreements, leases, contracts or other arrangements for the furnishing to or by
the LLC of goods, services or space with the Member or an affiliate of a
Member, and may pay compensation in connection with such business, goods,
services or space, provided in each case the amounts payable thereunder are
reasonably comparable to those that would be payable to unaffiliated persons
under similar agreements, and, if the Manager determines in good faith that
such amounts are so comparable, such determination shall be conclusive absent
manifest error.


 


7.07         Exculpation and Indemnification; Fiduciary Duty.


 


(a)                                  Neither
the Member nor the Managers, nor any of their respective affiliates, shall have
any liability to the LLC or to each other for any loss suffered by the LLC that
arises out of any action or inaction of the Member, the Managers or their
affiliates, if such course of conduct did not constitute the willful misconduct
of the Member, the Managers or any such affiliate.


 


(b)                                 To
the fullest extent permitted by law, the Member, the Managers and their
respective Affiliates shall be indemnified by the LLC against any and all
losses, judgments, liabilities, expenses (including attorneys’ fees) and
amounts paid in settlement of any claims sustained by it with respect to any
authorized actions taken by the Member, the Managers or any such affiliate on
behalf of the LLC.   Any indemnification
to be provided hereunder shall be provided even if the person to be indemnified
is no longer a Member, Managers or an affiliate of a Member or Manager.  Any indemnity under this Section 7.07
shall be paid from, and only to the extent of, LLC assets, and


 


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neither the Member nor the Managers
or any of their respective affiliates shall have any personal liability on
account thereof.


 


7.08         Other Activities. 
Notwithstanding any other duty existing at law or in equity, the Member,
the Managers and any of their respective affiliates may engage in and possess
interests in other business ventures and investment opportunities of every kind
and description, independently or with others, including serving as directors,
officers, stockholders, managers, members and general or limited partners of corporations,
partnerships or other LLCs with purposes similar to or the same as those of the
LLC. Neither the LLC nor any other party hereto shall have any rights in or to
such ventures or opportunities or the income or profits therefrom.


 


8.             Reliance
by Third Parties.  Any person or
entity dealing with the LLC may rely upon a certificate signed by the Manager
as to:


 


(a)                                the
persons or entities authorized to execute and deliver any instrument or
document of or on behalf of the LLC, and


 


(b)                               the
persons or entities authorized to take any action or refrain from taking any
action as to any matter whatsoever involving the LLC.


 


9.             Dissolution
and Special Member.


 


9.01         Existence.


 


(a)                                  The LLC shall be
dissolved, and its affairs shall be wound up upon the first to occur of the
following: (i) the termination of the legal existence of the last
remaining member of the LLC or the occurrence of any other event which
terminates the continued membership of the last remaining member of the LLC in
the LLC unless the LLC is continued without dissolution in a manner permitted
by this Agreement or the Act or (ii) the entry of a decree of judicial
dissolution under Section 18-802 of the Act.  Upon the occurrence of any event that causes
the last remaining member of the LLC to cease to be a member of the LLC or that
causes the Member to cease to be a member of the LLC (other than (i) upon
an assignment by the Member of all of its limited liability company interest in
the LLC and the admission of the transferee pursuant to Section 14,
or (ii) the resignation of the Member and the admission of an additional
member of the LLC pursuant to Section 14), to the fullest extent
permitted by law, the personal representative of such member is hereby
authorized to, and shall, within 90 days after the occurrence of the event that
terminated the continued membership of such member in the LLC, agree in writing
(i) to continue the LLC and (ii) to the admission of the personal
representative or its nominee or designee, as the case may be, as a substitute
member of the LLC, effective as of the occurrence of the event that terminated
the continued membership of the last remaining member of the LLC or the Member
in the LLC.


 


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(b)                                 Notwithstanding any other
provision of this Agreement, the Bankruptcy of the Member or a Special Member
shall not cause the Member or Special Member, respectively, to cease to be a
member of the LLC and upon the occurrence of such an event, the LLC shall
continue without dissolution.


 


(c)                                  In
the event of dissolution, the LLC shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the LLC
in an orderly manner), and the assets of the LLC shall be applied in the
manner, and in the order of priority, set forth in Section 18-804 of the
Act.


 


(d)                                 The
LLC shall terminate when (i) all of the assets of the LLC, after payment
of or due provision for all debts, liabilities and obligations of the LLC shall
have been distributed to the Member in the manner provided for in this
Agreement and (ii) the Certificate of Formation shall have been canceled
in the manner required by the Act.


 


9.02         Intentionally Omitted.


 


9.03         Special Member.  Notwithstanding any provision in this
Agreement to the contrary, upon the occurrence of any event that causes the
Member to cease to be the member of the LLC (other than (i) upon an
assignment by the Member of all of its limited liability company interest in
the LLC and the admission of the transferee pursuant to Section 14,
or (ii) the resignation of the Member and the admission of an additional
member of the LLC pursuant to Section 14), the person identified on
the signature page of this Agreement as an Independent Manager or, if such
person is unable to serve,  Sally E.
Michael, without any action of any person or entity and simultaneously with the
Member’s ceasing to be a member of the LLC, shall automatically be admitted to
the LLC as a Special Member, and shall continue the LLC without dissolution.


 


The Special Member may
not resign from the LLC or transfer its rights as Special Member unless a
successor Special Member has been admitted to the LLC as Special Member by
executing a counterpart to this Agreement; provided, however, the Special
Member shall automatically cease to be a member of the LLC upon the admission
to the LLC of a Substitute Member.  The
Special Member shall be a member of the LLC that has no interest in the
profits, losses and capital of the LLC and has no right to receive any
distributions of LLC assets.  Pursuant to
Section 18-301 of the Act, the Special Member shall not be required to
make any capital contributions to the LLC and shall not receive a limited
liability company interest in the LLC.


 


Except as required by any
mandatory provision of the Act, Special Member, in its capacity as Special
Member, shall not have the right to vote on, approve or otherwise consent to
any action by, or matter relating to, the LLC, including, without limitation,
the merger, consolidation or conversion of the LLC; provided, however, such
prohibition shall not limit the obligations of the Special Member, in its
capacity as Independent Manager, to vote on such matters required by this
Agreement.


 


For purposes of this Agreement,
the Special Member shall be a member of the LLC that becomes a member in
accordance with this Article 9 and shall only have the rights and
duties


 


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expressly set forth in this Agreement. 
In order to implement the admission to the LLC of the Special Member,
the Special Members have executed a counterpart to this Agreement.  Prior to its admission to the LLC as Special
Member, neither Special Member shall be a member of the LLC or have any interest
(economic or otherwise) in the LLC (other than as an Independent Manager).  The person identitified on the signature page as
the Independent Manager is hereby designated to act as the initial Special
Member.  Notwithstanding any other
provision of this Agreement, the Bankruptcy (as hereinafter defined) of the
Member or Special Member shall not cause the Member or Special Member to cease
to be a member of the LLC and upon the occurrence of any such an event, the LLC
shall be continued without dissolution. 
Notwithstanding anything to the contrary contained in this Agreement,
each of the Member and Special Member waives any right it might have to agree
in writing to dissolve the LLC upon the Bankruptcy of the Member or Special
Member, or the occurrence of an event that causes Member or Special Member to
cease to be a member of the LLC.  As used
herein, “Bankruptcy” means, with respect to any person or entity, (a) if
such person or entity: (i) makes an assignment for the benefit of
creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged
bankrupt or insolvent, or has entered against it an order for relief, in any
bankruptcy or insolvency proceedings, (iv) files a petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment,
liquidation or similar relief under any statute, law or regulation, (v) files
an answer or other pleading admitting or failing to contest the material
allegations of a petition filed against it in any proceeding of this nature, (vi) seeks,
consents to or acquiesces in the appointment of a trustee, receiver or
liquidator of such person or entity or of all or any substantial part of its
properties, or (b) one hundred and twenty (120) days after the
commencement of any proceeding against such person or entity seeking
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, if the proceeding has not been
dismissed, or if within ninety (90) days after the appointment without such
person’s or entity’s consent or acquiescence of a trustee, receiver or
liquidator of such person or entity or of all or any substantial part of its
properties, the appointment is not vacated or stayed, or within ninety (90)
days after the expiration of any such stay, the appointment is not vacated.  The foregoing definition of “Bankruptcy” is
intended to replace and shall supersede and replace the definition of “Bankruptcy”
set forth in Sections 18-101(1) and 18-304 of the Act.


 


10.           Capital
Contributions.   The Member has made
an initial capital contribution to the LLC in the amount set forth on Schedule
A.  The Member may make, but shall
not be required to make, any additional capital contributions to the LLC.


 


11.           Additional
Contributions.  The Member may make,
but shall not be required to make, any additional capital contributions to the
LLC.


 


12.           Allocation
of Profits and Losses.  All items of
LLC income, gain, profit, loss and deduction shall be allocated to the Member.


 


13.           Distributions.  Distributions shall be made to the Member at
the times and in the aggregate amounts determined by the Manager.  Notwithstanding any provision to the contrary
contained in this Agreement, the LLC shall not be required to make a
distribution to the Member on account of its interest in the LLC if such
distribution would violate Section 18-607 of the Act or any other
applicable law.


 


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14.           Transfers
and Assignments.  The Member may
assign its limited liability company interest in the LLC to any person or
entity, which person or entity shall become a Member upon the execution a
counterpart of this Agreement.  The
Member may conditionally or collaterally assign its limited liability company
interest in the LLC to any lender of funds to the LLC and/or the Member which
assignee shall become a Member upon activation of such assignee’s rights under
the instrument of assignment in accordance therewith and in compliance
herewith.


 


If the Member transfers all of
its limited liability company interest in the LLC pursuant to this Section 14,
the transferee shall be admitted to the LLC as a member of the LLC upon its
execution of an instrument signifying its agreement to be bound by the terms
and conditions of this Agreement, which instrument may be a counterpart
signature page to this Agreement. 
Such admission shall be deemed effective immediately prior to the
transfer and, immediately following such admission, the transferor Member shall
cease to be a member of the LLC. 
Notwithstanding anything in this Agreement to the contrary, any
successor to the Member by merger or consolidation in compliance with the Loan
Documents shall, without further act, be the Member hereunder, and such merger
or consolidation shall not constitute an assignment for purposes of this
Agreement and the LLC shall continue without dissolution.


 


15.           Resignation.  Each Manager may resign his or its office
with the LLC.  Upon such resignation, the
vacancy shall be filled by the Member.


 


16.           Amendments.  This Agreement may be amended or restated
from time to time by written instrument executed by the Member.


 


17.           Liability
of Member.  Except as otherwise
expressly provided by the Act, the debts, obligations and liabilities of the
LLC, whether arising in contract, tort or otherwise, shall be the debts,
obligations and liabilities solely of the LLC, and neither the Member nor the
Special Members nor any Manager shall be obligated personally for any such
debt, obligation or liability of the LLC solely by reason of being a Member,
Special Member or Manager of the LLC


 


18.           Governing
Law.  This Agreement shall be
governed by, and construed under, the laws of the State of Delaware, all rights
and remedies being governed by said laws (without regard to conflict of law
principles).


 


19.           Lender Requirements.  Notwithstanding anything in this Agreement to
the contrary, unless and until that certain loan (the “Loan”) from
Federal Home Loan Mortgage Corporation, through its servicer, Wachovia
Multifamily Capital, Inc. (together with its successors and assigns, the “Lender”)
to the LLC evidenced and secured by certain loan documents (“Loan Documents”)
including, without limitation, a mortgage (the “Mortgage”) encumbering
the Property, has been paid in full in accordance with the terms and provisions
of such Loan Documents, the following provisions shall apply:


 


The LLC:


 


(a)           shall not engage in
any business or activity, other than the ownership, operation and maintenance
of the Property and activities incidental thereto;


 


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(b)           shall not acquire,
own, hold, lease, operate, manage, maintain, develop or improve any assets
other than the Property and such Personalty as may be necessary for the
operation of the Property and shall conduct and operate its business as
presently conducted and operated;


 


(c)           shall preserve its
existence as an entity duly formed, validly existing and in good standing (if
applicable) under the laws of the jurisdiction of its formation or organization
and shall do all things necessary to observe organizational formalities;


 


(d)           shall not merge or
consolidate with any other Person;


 


(e)           to the fullest extent
permitted by law, shall not take any action to dissolve, wind-up, terminate or
liquidate in whole or in part; to sell, transfer or otherwise dispose of all or
substantially all of its assets; to change its legal structure; transfer or
permit the direct or indirect transfer of any limited liability company or
other equity interests, as applicable, other than Transfers permitted under the
Loan Documents; issue additional limited liability company or other equity
interests, as applicable; or seek to accomplish any of the foregoing;


 


(f)            the LLC, and any
other Person on behalf of the LLC, shall not, without the prior written consent
of the Member and all of the Managers, including the Independent Manager (as
defined below):  (i) file any
insolvency, or reorganization case or proceeding, to institute proceedings to
have the LLC or the Member be adjudicated bankrupt or insolvent, (ii) institute
proceedings under any applicable insolvency law, (iii) seek any relief
under any law relating to relief from debts or the protection of debtors, (iv) consent
to the filing or institution of bankruptcy or insolvency proceedings against
the LLC or the Member, (v) file a petition seeking, or consent to,
reorganization or relief with respect to the LLC or the Member under any
applicable federal or state law relating to bankruptcy or insolvency, (vi) seek
or consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator, custodian, or any similar official for the LLC or a substantial
part of its property or for the Member or a substantial part of its property, (vii) make
any assignment for the benefit of creditors of the LLC the Member, (viii) admit
in writing the LLC’s or the Member’s inability to pay its debts generally as
they become due, (ix) take any other action which, under the terms of
certificate of formation, limited liability company agreement or any other
organizational document of the LLC or the Member, requires a consent of all of
the Members or Managers of the LLC unless at the time of such action there
shall be at least one (1) Independent Manager (as defined below) then
serving in such capacity, or (x) take action in furtherance of any of the
foregoing;


 


(g)           shall not amend or
restate its organizational documents if such change would modify the
requirements set forth in this Section 19;


 


(h)           shall not own any subsidiary or make
any investment in, any other Person;


 


(i)            shall not commingle its assets with
the assets of any other Person and shall hold all of its assets in its own
name;


 


(j)            shall not incur any debt, secured or
unsecured, direct or contingent (including, without limitation, guaranteeing
any obligation), other than, (i) the Indebtedness and (ii) customary


 


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unsecured trade payables incurred
in the ordinary course of owning and operating the Property provided the same
are not evidenced by a promissory note, do not exceed, in the aggregate, at any
time a maximum amount of two percent (2%) of the original principal amount of
the Indebtedness and are paid within sixty (60) days of the date incurred;


 


(k)           shall maintain its records, books of
account, bank accounts, financial statements, accounting records and other
entity documents separate and apart from those of any other Person and shall
not list its assets as assets on the financial statement of any other Person;
provided, however, that the LLC’s assets may be included in a consolidated
financial statement of its Affiliate provided that (i) appropriate
notation shall be made on such consolidated financial statements to indicate
the separateness of the LLC from such Affiliate and to indicate that the LLC’s
assets and credit are not available to satisfy the debts and other obligations
of such Affiliate or any other Person and (ii) such assets shall also be
listed on the LLC’s own separate balance sheet;


 


(l)            except for capital contributions or
capital distributions permitted under the terms and conditions of its
organizational documents, shall only enter into any contract or agreement with
any Member or Affiliate of the LLC or any guarantor, or any general partner,
member, principal or Affiliate thereof, upon terms and conditions that are
commercially reasonable and substantially similar to those that would be available
on an arm’s-length basis with third parties;


 


(m)          shall not maintain its assets in such
a manner that will be costly or difficult to segregate, ascertain or identify
its individual assets from those of any other Person;


 


(n)           shall not assume or guaranty
(excluding any guaranty that has been executed and delivered in connection with
the Note) the debts or obligations of any other Person, hold itself out to be
responsible for the debts of another Person, pledge its assets to secure the
obligations of any other Person or otherwise pledge its assets for the benefit
of any other Person, or hold out its credit as being available to satisfy the
obligations of any other Person;


 


(o)           shall not make or permit to remain
outstanding any loans or advances to any other Person except for those
investments permitted under the Loan Documents and shall not buy or hold
evidence of indebtedness issued by any other Person (other than cash or
investment-grade securities);


 


(p)           shall file its own tax returns
separate from those of any other Person, except to the extent that the LLC is
treated as a “disregarded entity” for tax purposes and is not required to file
tax returns under applicable law, and shall pay any taxes required to be paid
under applicable law;


 


(q)           shall hold itself out to the public
as a legal entity separate and distinct from any other Person and conduct its
business solely in its own name, shall correct any known misunderstanding
regarding its separate identity and shall not identify itself or any of its Affiliates
as a division or department of any other Person;


 


(r)            shall maintain adequate capital for
the normal obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations and shall


 


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pay its debts and liabilities
from its own assets as the same shall become due;


 


(s)           shall pay (or cause the Property
Manager to pay on behalf of the LLC from the LLC’s funds) its own liabilities
(including, without limitation, salaries of its own employees) from its own
funds;


 


(t)            shall not acquire obligations or
securities of its Members or Affiliates, as applicable;


 


(u)           except as contemplated or permitted
by the property management agreement with respect to the Property Manager,
shall not permit any Affiliate or constituent party independent access to its
bank accounts;


 


(v)           shall maintain a sufficient number of
employees (if any) in light of its contemplated business operations and pay the
salaries of its own employees, if any, only from its own funds;


 


(w)          The LLC shall (i) have two (2) special
members who are natural persons and (ii) have at least one (1) Independent
Manager and (iii) otherwise comply with all Rating Agencies criteria for
single member limited liability companies (including, without limitation, the
delivery of Delaware single member limited liability company opinions
acceptable in all respects to Lender and to the Rating Agencies).


 


(x)            to the fullest extent permitted by
law, shall conduct its business so that the assumptions made with respect to
the LLC in the nonconsolidation opinion provided to Lender shall be true and
correct in all respects.  In connection
with the foregoing, the LLC hereby covenants and agrees that it will comply
with or cause the compliance with, (i) all of the facts and assumptions
(whether regarding the LLC or any other Person) set forth in the
nonconsolidation opinion provided to Lender, (ii) all the representations,
warranties and covenants in this Section 19, and (ii) all the
organizational documents of the LLC.


 


Failure of the LLC, or the Member or Manager on behalf of the LLC, to
comply with any of the foregoing covenants or any other covenants contained in
this Agreement shall not affect the status of the LLC as a separate legal
entity or the limited liability of the Member or the Managers.


 


“Independent Manager” means a natural
person who is not at the time of initial appointment as a manager or at any
time while serving as a manager of the LLC or the Member and has not been at
any time during the five (5) years preceding such initial appointment (i) a
stockholder, director (with the exception of serving as an Independent Manager
of the LLC or the Member), officer, trustee, employee, partner, member,
attorney or counsel of the LLC or the Member, or any Affiliate of either of
them, (ii) a creditor, customer, supplier, or other Person who derives any
of its purchases or revenues from its activities with the LLC or the Member or
any Affiliate of either of them, (iii) a Person Controlling or under
common Control with any Person excluded from serving as Independent Manager
under (i) or (ii) or (iv) a member of the immediate family by
blood or marriage of any Person excluded from serving as Independent Manager
under (i)


 


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or (ii).  The Independent Manager shall be appointed by
the Manager.  To the fullest extent
permitted by law, including Section 18-1101(c) of the Act, the
Independent Manager shall consider the interests of the LLC, together with the
interests of the LLC’s creditors, in acting or otherwise voting on the matters
referred to in Paragraph 19(f) above.


 


An Independent
Manager may resign and, at any time and from time to time, the Manager may by
written notice to an Independent Manager discharge an Independent Manager and
appoint a successor Independent Manager for any reason, with or without cause;
provided, however, no resignation, withdrawal, dissociation or removal of an
Independent Manager, and no appointment of a successor Independent Manager,
shall be effective until the successor Independent Manager shall have accepted
his or her appointment by a written instrument.


 


The Managers
hereby appoint Melvin Herman as the initial Independent Manager and Melvin Herman
has executed counterparts to this Agreement as evidence of his acceptance of
such appointment.  All right, power and
authority of the Independent Manager shall be limited to the extent necessary
to exercise those rights and perform those duties specifically set forth in
Paragraphs 9.03 and 19(f) of this Agreement.  An Independent Manager (a) shall not be
a member of the LLC for any purposes whatsoever except under the circumstances
described in Paragraph 9.03 above, (b) shall take no action for or on behalf
of the LLC, or have any rights with respect to the LLC (including voting or
consent rights), other than those described in this Paragraph 19(f) above,
(c) shall have no liability to the LLC or the Members other than for
actual damages resulting from a breach of this Paragraph 19 or from negligence
or bad faith, (d) shall cease to be Independent Manager automatically upon
the earlier to occur of (i) the time at which this Paragraph 19 shall
cease to apply and (ii) the date on which such Independent Manager
receives written notice from the Manager discharging such Independent Manager
and appointing a successor Independent Manager and (e) shall be entitled
to compensation for serving as the Independent Manager under this Agreement and
indemnification for serving as the Independent Managers to the extent so
provided in writing.   The Independent
Manager shall not enter into a voting agreement with any creditor of the
LLC.  The Independent Manager shall be a “manager
within the meaning of Section 18-101(10) of the Act.


 


Any other capitalized term not defined in this Section 19 shall
have the meaning set forth in the Mortgage.


 


20.           Definitions


 


“Act” has the meaning set forth in the preamble to this
Agreement.


 


“Agreement” means this Limited Liability Company Agreement of
the LLC, together with the schedules attached hereto, as amended, restated or
supplemented or otherwise modified from time to time.


 


“Manager” means the person selected to be the manager of the LLC
from time to time by the Member.  A
Manager is hereby designated as a “manager” of the LLC within the meaning of Section 18-101(10) of
the Act.  The term “Manager” shall not
include any Independent Manager.


 


“Member” means HPT Associates, LLC, as the initial member of the
LLC, and includes any Person admitted as an additional member of the LLC or a
substitute member of the LLC pursuant to


 


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the provisions of this Agreement, each in its capacity as a member of
the LLC; provided, however, the term “Member” shall not include the Special
Members.


 


“Person” means any individual, corporation, partnership, joint
venture, limited liability company, limited liability partnership, association,
joint stock company, trust, unincorporated organization, or other organization,
whether or not a legal entity, and any governmental authority.


 


“Special Member” means, upon such person’s admission to the LLC
as a member of the LLC pursuant to Section 9.03, a person acting as
Independent Manager or Sally E. Michael, in such person’s capacity as a member
of the LLC.  A Special Member shall only
have the rights and duties expressly set forth in this Agreement.


 


[PAGE ENDS
HERE; SIGNATURES FOLLOW]


 


12

















 


IN WITNESS WHEREOF, the undersigned,
intending to be legally bound hereby, has duly executed this Limited Liability
Company Agreement as of the day and year first above written.


 


	
   

  	
  MEMBER

  
	
   

  	
   

  
	
   

  	
  HPT ASSOCIATES, LLC, a Delaware limited

  
	
   

  	
  liability company

  
	
   

  	
   

  
	
   

  	
  By:

  	
  NewReal, Inc., its Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Ronald Brown, President

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Harold Brown, Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MANAGERS

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Harold Brown

  
	
   

  	
   

  
	
   

  	
  NEWREAL, INC., a Massachusetts corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Ronald Brown, President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEPENDENT MANAGER

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Melvin Herman

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SPECIAL MEMBERS

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Melvin Herman

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Sally E. Michael

  
										



 


13

















 


SCHEDULE A


 


Hamilton
Park Towers, LLC


 


Initial
Capital Contributions and Percentage Interests


 


As of              
       , 2009


 


	
  Member

  	
   

  	
  Amount of Initial

  Capital Contribution

  	
   

  	
  Percentage Interest

  	
   

  
	
  HPT
  Associates, LLC

  	
   

  	
  $

  	
   

  	
   

  	
  100

  	
  %

  
							



 


Independent Manager:


Melvin Herman


 


Special Members:


Melvin Herman


Sally E. Michaels


 


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