Exhibit 10.2


 


LIMITED LIABILITY COMPANY
OPERATING AGREEMENT


OF


HBC HOLDINGS, LLC


 


This Limited Liability Company
Operating Agreement is entered into, and shall be effective, as of
the 13th day of April, 2009 (the “Effective Date”), by and
among (i) the Persons who are identified as the initial
Members of the Company on Exhibit A attached hereto and who have
executed this Agreement as of the Effective Date, (ii) each other Person
who, at any time after the Effective Date, (x) is
admitted to the Company as a Member in accordance with the terms of this
Agreement, (y) is identified as a Member on Exhibit A
to this Agreement (as the same shall be amended from time to time after the
Effective Date by the Manager), and (z) executes
a counterpart of this Agreement as a Member, and (iii) Harold Brown, as
the initial Manager, pursuant to the provisions of the Massachusetts Limited Liability Company Act, on the
following terms and conditions:


 


Article I


THE COMPANY


 


1.1           Formation. 
The Company was formed as a Massachusetts limited liability company on
the Effective Date.  The Members hereby
agree to continue the Company as a limited liability company under and pursuant
to the provisions of the Act and upon the terms and conditions set forth in
this Agreement.  Simultaneously with the
formation of the Company, Harold Brown was admitted to the Company as its
initial Member.  The rights and
liabilities of the Members shall be as provided under the Act, the Certificate,
and this Agreement.


 


1.2           Name. 
The name of the Company shall be “HBC Holdings, LLC,” and all business
of the Company shall be conducted in such name. 
The Board of Managers may change the name of the Company upon at least
ten (10) Business Days notice to the Members.


 


1.3           Purpose; Powers.


 


(a)           The purposes of the
Company are, directly or through one or more subsidiaries and other Affiliates,
(i) to acquire, develop, renovate, rehabilitate, improve, lease (in whole
or in part), own, operate, manage, hold for investment, finance, mortgage, sell
(in whole or in part), exchange, or otherwise dispose of, and deal with real
estate located anywhere in the United States, (ii) to acquire,
own, manage, administer, protect, conserve, and sell or otherwise dispose of
Permitted Working Capital Assets,  (iii) to make such additional
investments and engage in such additional business or investment activities or
endeavors as the Members may unanimously approve, and (iv) to engage in
any and all activities related or incidental to the purposes set forth in
clauses (i), (ii), and (iii) of this Section 1.3(a).


 


(b)           The Company shall
have the power to do any and all acts necessary, appropriate, proper,
advisable, incidental, or convenient to or in furtherance of the purposes of
the Company set forth in Section 1.3(a) and shall have, without
limitation, any and all powers that may be exercised on behalf of the Company
by the Board of Managers pursuant to Article V hereof.


 

















 


1.4           Principal
Place of Business; Registered Office.  The principal place of business of the
Company shall be at 39 Brighton Avenue, Allston, Massachusetts 02134.  The Board of Managers may change the
principal place of business of the Company to any other place within or without
the Commonwealth of Massachusetts upon at least ten (10) Business Days
notice to the Members.  The registered
office of the Company in the Commonwealth of Massachusetts is initially located
at 39 Brighton Avenue, Allston, Massachusetts 02134.


 


1.5           Term. 
The term of the Company commenced on the Effective Date, which is the
date that the Certificate of Organization described in Section 12 of the
Act (the “Certificate”) was filed in the office of the Secretary of State of
the Commonwealth of Massachusetts in accordance with the Act.  The term of the Company shall not be
perpetual, but shall continue until the winding up and liquidation of the
Company and the completion of its business following a Dissolution Event, as
provided in Article XI hereof.


 


1.6           Filings;
Agent for Service of Process.


 


(a)           The
Certificate was filed in the office of the Secretary of State of the
Commonwealth of Massachusetts, in accordance with the Act, on the Effective
Date. The Board of Managers shall take any and all other actions reasonably
necessary to perfect and maintain the status of the Company as a limited liability
company under the laws of the Commonwealth of Massachusetts, including the
preparation and filing of such amendments to the Certificate and such other
assumed name certificates, documents, instruments, and publications as may from
time to time be required by law.


 


(b)           The Members and the
Managers shall execute and cause to be filed original or amended certificates,
and shall take any and all other actions as may be reasonably necessary, in
order to perfect and maintain the status of the Company as a limited liability
company or similar type of entity under the laws of any other state or
jurisdiction in which the Company engages in business.


 


(c)           The registered agent
for service of process on the Company in the Commonwealth of Massachusetts
shall be Sally E. Michael, Esquire, Dionne & Gass LLP, 131 Dartmouth
Street, Suite 501, Boston, Massachusetts 02116, or any successor as
appointed by the Board of Managers in accordance with the Act.


 


(d)           Upon the dissolution
and completion of the winding up and liquidation of the Company in accordance
with Article XI hereof, the Board of Managers shall
promptly execute and cause to be filed certificates of cancellation or
dissolution in accordance with the Act and the laws of any other state or
jurisdiction in which the Company has filed certificates.


 


1.7           Title to Property.  All real and personal property owned by the
Company shall be owned by the Company as an entity and no Member shall have any
ownership interest in such property in such Member’s individual name or right.  Each Member’s interest in the Company shall
be personal property for all purposes. 
The Company shall hold all of its real and personal property in the name
of the Company and not in the name of any Member.


 


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1.8           Payments of Individual Obligations.  The Company’s credit and assets shall be used
solely for the benefit of the Company, and no asset of the Company shall be
transferred or encumbered for or in payment of any individual obligation of any
Member.


 


1.9           Independent Activities; Transactions With Affiliates.


 


(a)           Each Manager shall
be required to devote such time to the business and affairs of the Company as
may be necessary to manage and operate the Company.  Except as provided in Section 1.9(d) hereof,
each Manager shall be free to serve any other Person or enterprise in any
capacity that such Manager may deem appropriate in such Manager’s discretion.


 


(b)           Insofar as permitted
by applicable law neither this Agreement nor any activity undertaken pursuant
hereto shall prevent any Member or Manager, or any Affiliate of any Member or
Manager, from engaging in whatever activities such Person may choose, whether
the same are competitive with the Company or otherwise, and any such activities
may be undertaken without having or incurring any obligation to offer any
interest in such activities to the Company or any Member.  Neither this Agreement nor any activity
undertaken pursuant hereto shall require any Member or Manager to permit the
Company or any Member, Manager, or Affiliate of any Member or Manager, to
participate in any such activities, and as a material part of the consideration
for the execution of this Agreement by each Member, each Member hereby waives,
relinquishes, and renounces any such right or claim of participation.  The Members hereby further acknowledge that
certain conflicts of interest may thus arise and hereby agree that the specific
rights with respect to the Members’ and their Affiliates’ freedom of action
provided in this Section 1.9(b) are sufficient to protect their
respective interests in relation to such possible conflicts and shall be in
lieu of all other possible limitations that might otherwise be implied in fact,
at law, or in equity.


 


(c)           To the extent
permitted by applicable law and except as otherwise provided in this Agreement,
the Board of Managers is hereby authorized, in furtherance of the purposes of
the Company, to cause the Company to purchase property from, sell property to,
borrow money from, or otherwise deal with any Member or Manager, acting on such
Person’s own behalf, or any Affiliate of any Member or Manager, provided,
that, except as otherwise provided in this Agreement (for example, Section 5.8,
dealing with Member or Manager loans) any such purchase, sale, borrowing, or
other transaction shall be made on terms and conditions that are no less
favorable to the Company than if such purchase, sale, or other transaction had
been made with an independent third party.


 


1.10         Definitions.  The following capitalized words and phrases,
when used in this Agreement, have the following meanings:


 


“Accepting Offerees” has
the meaning set forth in Section 9.4(d)(ii) hereof.


 


“Act” means the
Massachusetts Limited Liability Company Act, as set forth in Chapter 156C of
the Massachusetts General Laws, as amended from time to time (or any
corresponding provisions of succeeding law).


 


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“Adjusted Capital
Account Deficit” means, with respect to any Member, the deficit
balance, if any, in such Member’s Capital Account as of the end of the relevant
Allocation Year, after giving effect to the following adjustments:


 


(i)            There shall be credited to such
Capital Account any amounts that such Member is deemed to be obligated to
restore pursuant to the penultimate sentences in Sections 1.704-2(g)(1) and
1.704-2(i)(5) of the Regulations; and


 


(ii)           There shall be debited to such
Capital Account the items described in Sections 1.704-1(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 Adjusted Capital Account Deficit 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.


 


“Affiliate” means, with
respect to any Person, (i) any Person directly or indirectly controlling,
controlled by, or under common control with such Person, (ii) any officer,
director, general partner, member, manager, or trustee of such Person, or (iii) any
Person who is an officer, director, general partner, member, manager, or
trustee of any Person described in clause (i) or clause (ii) of this
sentence.  For purposes of this
definition, the terms “controlling,” “controlled by,” and “under common control
with” shall mean the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise, or the power to
elect at least fifty percent (50%) of the directors, managers, general
partners, or Persons exercising similar authority with respect to such Person.


 


“Agreement” means this
Limited Liability Company Operating Agreement, including each exhibit and
schedule attached hereto, as amended from time to time.  Words such as “herein,” “hereinafter,” “hereof,”
“hereto,” and “hereunder,” refer to this Agreement as a whole, unless the
context otherwise requires.  All
references in this Agreement to “Section” or “Sections” are to a section or
sections of this Agreement unless otherwise specified.


 


“Allocation Year” means (i) the
period commencing on the Effective Date and ending on December 31, 2009, (ii) any
subsequent 12-month period commencing on January 1 and ending on December 31,
or (iii) any portion of any period described in clause (i) or clause (ii) for
which the Company is required to allocate Profits, Losses, and other items of
Company income, gain, loss, or deduction pursuant to Article III.


 


“Bankruptcy” means, with
respect to any Person, the occurrence of any one of the events set forth in §2(1) of
the Act.


 


“Board of Managers” has the meaning set forth in Section 5.1
hereof.


 


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“Business Day” means any
day that is not a Saturday, Sunday, or any other day on which commercial banks
in Boston, Massachusetts are authorized or obligated by law or executive order
to be closed.


 


“Capital Account” means,
with respect to any Member, the Capital Account maintained for such Member in
accordance with the following provisions:


 


(i)            To each Member’s
Capital Account there shall be credited (A) such Member’s Capital
Contributions, (B) such Member’s distributive share of Profits and any
items in the nature of income or gain that are specially allocated to such
Member pursuant to Section 3.2 or Section 3.3 hereof, and (C) the
amount of any Company liabilities that are assumed by such Member or that are
secured by any Property distributed to such Member.


 


(ii)           To
each Member’s Capital Account there shall be debited (A) the amount of
money and the Gross Asset Value of any Property (other than money) distributed
to such Member pursuant to any provision of this Agreement, (B) such
Member’s distributive share of Losses and any items in the nature of expenses
or losses that are specially allocated to such Member pursuant to Section 3.2
or Section 3.3 hereof, and (C) the amount of any liabilities of such
Member that are assumed by the Company or that are secured by any property
contributed by such Member to the Company.


 


(iii)          In
the event that Shares are transferred in accordance with the terms of this
Agreement, the transferee shall succeed to the Capital Account of the
transferor to the extent that such Capital Account relates to the transferred
Shares.


 


(iv)          In
determining the amount of any liability for purposes of subsections (i) and
(ii) of this definition, 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 Agreement relating to the
maintenance of Capital Accounts are intended to comply with Regulations Section 1.704-1(b),
and shall be interpreted and applied in a manner consistent with such
Regulations.  In the event the Board of
Managers shall determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto, are computed in order to
comply with such Regulations, the Board of Managers may make such modification;
provided, that it is not likely to have a material effect on the amounts
distributable to any Member pursuant to Article XI upon the
dissolution of the Company.  The Board of
Managers shall also (i) make any adjustments that are necessary or
appropriate to maintain equality between the Capital Accounts of the Members
and the amount of capital reflected on the Company’s balance sheet, as computed
for book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(q), and (ii) make any appropriate
modifications in the event unanticipated events might otherwise cause this
Agreement not to comply with Regulations Section 1.704-1(b).


 


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“Capital Contributions”
means, with respect to any Member, the amount of money and the initial Gross
Asset Value of any property (other than money) contributed to the Company with
respect to the Shares held by such Member.


 


“Cash Equivalents” means cash and any of the
following: (i) readily marketable direct obligations of the Government of
the United States or any agency or instrumentality thereof, or obligations
unconditionally guaranteed by the full faith and credit of the Government of
the United States, and (ii) insured certificates of deposit of, or time or
demand deposits with, any commercial bank that is a member of the Federal
Reserve System; provided, however, that all instruments described
in this definition other than cash shall have a maturity of not longer than
ninety (90) days.


 


“Certificate” means the
Certificate of Organization filed with the Secretary of State of the
Commonwealth of Massachusetts pursuant to the Act to form the Company, as
originally executed and as amended, modified, supplemented, or restated from
time to time, as the context may require.


 


“Certificate of Cancellation”
means a Certificate of Cancellation filed with the Secretary of State of the
Commonwealth of Massachusetts in accordance with Section 14 of the Act, in
order to dissolve the Company.


 


“Code” means the Internal
Revenue Code of 1986, as amended from time to time (or any corresponding
provisions of succeeding law).


 


“Company” means the
limited liability company formed pursuant to the Certificate and this Agreement
and the limited liability company continuing the business of the Company in the
event of the dissolution of the Company as herein provided.


 


“Company Minimum Gain” has
the same meaning as is given to the term “partnership minimum gain” in Sections
1.704-2(b)(2) and 1.704-2(d) of the Regulations.


 


“Consent of the Members”
means, with respect to any matter submitted to the Members for their consent or
approval, the written consent or approval of Members holding, at the time of
such consent or approval, more than fifty percent (50%) of the issued and
outstanding Shares.


 


“Debt” means, with respect to any Person, (i) any
indebtedness for borrowed money or the deferred purchase price of property as
evidenced by a note, bond, or other instrument, (ii) obligations as lessee
under any capital lease, (iii) obligations secured by any mortgage,
pledge, security interest, encumbrance, lien, or charge of any kind existing on
any asset owned or held by such Person, whether or not such Person has assumed
or become liable for the obligations secured thereby, (iv) accounts
payable, and (v) obligations under direct or indirect guarantees of
(including obligations, contingent or otherwise, to assure a creditor against
loss in respect of) indebtedness or obligations of the kinds referred to in
clauses (i), (ii), (iii), and (iv) of this definition, provided, that Debt shall not include obligations
in respect of any accounts payable that are incurred in the ordinary course of
such Person’s business and are not delinquent or are being contested in good
faith by appropriate proceedings.


 


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“Depreciation” means, for
each Allocation Year, an amount equal to the depreciation, amortization, or
other cost recovery deduction allowable for federal income tax purposes with
respect to an asset for such Allocation Year, 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 Allocation Year, Depreciation
shall be an amount that bears the same ratio to such beginning Gross Asset
Value as the federal income tax depreciation, amortization, or other cost
recovery deduction for such Allocation Year bears to such beginning adjusted
tax basis; provided, however, that if the adjusted basis for
federal income tax purposes of an asset at the beginning of such Allocation
Year is zero, Depreciation shall be determined with reference to such beginning
Gross Asset Value using any reasonable method selected by the Board of
Managers.


 


“Dissolution Event” has
the meaning set forth in Section 11.1 hereof.


 


“Effective Date” has the
meaning set forth in the first paragraph of this Agreement.


 


“Environmental Claim”
means any administrative, regulatory, or judicial action, suit, demand, demand
letter, claim, lien, notice of noncompliance or violation, notice of liability
or potential liability, investigation, or proceeding relating in any way to any
Environmental Law, Environmental Permit, or Hazardous Substances, or arising
from actual or alleged injury or threat of injury to natural resources, health,
safety, or the environment, including, without limitation, (a) by
governmental or regulatory authorities for enforcement, cleanup, removal,
response, remediation, or other actions or damages, and (b) by any third
party for damages, contribution, indemnification, cost recovery, compensation,
or injunctive relief.


 


“Environmental Law” means
any federal, state, or local statute, law, code, ordinance, rule, regulation,
guideline, policy, or rule of common law, now or hereafter in effect and
in each case as amended, and any judicial or administrative interpretation
thereof (including any judicial or administrative order, consent decree, or
judgment), relating to the environment, health, safety, or Hazardous
Substances.


 


“Environmental Permit”
means any permit, approval, identification number, license, or other authorization
required under any applicable Environmental Law.


 


“Expenses” means any and
all judgments, damages, or penalties with respect to, or amounts paid in
settlement of, claims (including, but not limited to, claims alleging
negligence, strict or absolute liability, liability in tort, and liabilities
arising out of violations of laws or regulatory requirements of any kind),
actions, or suits; and any and all taxes (including, without limitation, taxes
on any indemnification payments and interest, additions to tax, and penalties),
liabilities, obligations, costs, expenses, and disbursements (including,
without limitation, reasonable legal fees and expenses).


 


“Family” has the meaning
set forth in Section 9.2 hereof.


 


“Firm Offer” has the
meaning set forth in Section 9.4(b) hereof.


 


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“Fiscal Quarter”
means (i) the period commencing on the Effective Date and ending on the
last day of the calendar quarter in which the Effective Date occurs, or (ii) any
subsequent three (3) month period commencing on January 1, April 1,
July 1, or October 1 and ending on the earlier to occur of (A) the
following March 31, June 30, September 30, or December 31,
respectively, or (B) the date on which all of the Property is distributed
pursuant to Section 11.2 hereof and the Certificate has been canceled
pursuant to the Act.


 


“Fiscal Year” means (i) the
period commencing on the Effective Date and ending on December 31, 2009,
and (ii) any subsequent 12-month period commencing on January 1 and
ending on the earlier to occur of (A) the following December 31, or (B) the
date on which all of the Property is distributed pursuant to Section 11.2
and the Certificate has been canceled pursuant to the Act.


 


“Gross Asset Value” means,
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 Board of Managers.


 


(ii)           The
Gross Asset Values of all Company assets shall be adjusted to equal their
respective gross fair market values (taking Code Section 7701(g) into
account), as determined by the Board of Managers, as of the following
times:  (A) the acquisition of an
additional interest in the Company by any existing Member in exchange for more
than a de minimis Capital
Contribution or the performance of substantial services for the Company; (B) the
acquisition of an interest in the Company by any new Member in exchange for
more than a de minimis Capital
Contribution or the performance of substantial services for the Company; (C) the
distribution by the Company to any Member of more than a de minimis amount of Property as
consideration for an interest in the Company; and (D) the liquidation of
the Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); provided, that an adjustment
described in clause (A), clause (B), or clause (C) of this subparagraph (ii) shall
be made only if the Board of Managers reasonably determines that such
adjustment is necessary to reflect the relative economic interests of the
Members in the Company.


 


(iii)          The
Gross Asset Value of any Company asset distributed to any Member (other than as
consideration for an interest in the Company) shall be adjusted to equal the
gross fair market value (taking Code Section 7701(g) into account) of
such asset on the date of distribution as determined by the distributee and the
Board of Managers.


 


(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 Regulations Section 1.704-1(b)(2)(iv)(m) and subparagraph (vi) of the definition of “Profits”
and “Losses” set forth in this Section 1.10, or Section 3.3(g) hereof;
provided, however, that Gross Asset


 


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Values shall not be adjusted pursuant to this subparagraph (iv) to
the extent the Board of Managers determines that an adjustment pursuant to
subparagraph (ii) of this definition is required in connection with a
transaction that would otherwise result in an adjustment pursuant to this
subparagraph (iv).


 


If the Gross Asset
Value of an asset has been determined or adjusted pursuant to subparagraph (i),
(ii), or (iv) of this definition, such Gross Asset Value shall thereafter
be adjusted by the Depreciation taken into account with respect to such asset
for purposes of computing Profits and Losses.


 


“Hazardous Substances”
means (i) any chemicals, materials, or substances defined or included in
the definition of “hazardous substances,” “hazardous materials,” “hazardous
wastes,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic
substances,” “toxic pollutants,” “pollutants,” “contaminants,” or words of
similar import, under any applicable Environmental Law, (ii) any petroleum
or petroleum products, by-products or breakdown products, including crude oil
or any fraction thereof, natural or synthetic natural gas, radioactive
materials, asbestos in any form that is friable, urea formaldehyde foam
insulation and radon, and (iii) any other chemical, material, or substance
exposure to which is prohibited, limited, or regulated by any governmental
authority or under any Environmental Law.


 


“Losses” has the meaning
set forth in the definition of “Profits” and “Losses.”


 


“Manager” means, as of any
time, each Person then serving on the Board of Managers of the Company. “Managers” means, as of any time, all of
such Persons.


 


“Member” means any Person (i) whose
name is set forth as a Member on Exhibit A attached hereto or who
has become a substituted Member pursuant to the terms of this Agreement, and (ii) who
holds one or more Shares.  “Members” shall mean all such Persons.


 


“Member Nonrecourse Debt”
has the same meaning as is given to the term “partner nonrecourse debt” in Section 1.704-2(b)(4) of
the Regulations.


 


“Member Nonrecourse Debt Minimum Gain”
means 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.


 


“Member Nonrecourse Deductions”
has the same meaning as is given to the term “partner nonrecourse deductions”
in Sections 1.704-2(i)(1) and 1.704-2(i)(2) of the Regulations.


 


“Net Cash Available for Distribution” means,
for any Fiscal Quarter, the amount by which the total of the cash on hand and
in the Company’s bank accounts as of the end of such Fiscal Quarter is in
excess of the projected cash requirements of the Company for the immediately
succeeding Fiscal Quarter. The cash requirements of the Company for any Fiscal
Quarter shall include, but not be limited to, the amounts that the Board of
Managers reasonably expects will be required to be expended by the Company
during such Fiscal Quarter for capital


 


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calls that may be made on
the Company by other entities, taxes, debt service, and other operating and
capital expenses and contingencies of the Company, all as determined by the
Board of Managers, in its sole and absolute discretion. Net Cash Available for
Distribution shall not be reduced by depreciation, amortization, cost recovery
deductions, or similar allowances.


 


“Nonrecourse Deductions”
has the meaning set forth in Section 1.704-2(b)(1) of the
Regulations.


 


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


 


“Offered Shares” has the meaning set forth
in Section 9.4 hereof.


 


“Offerees” has the meaning set forth in Section 9.4(b) hereof.


 


“Offer Notice” has the meaning set forth in Section 9.4(b) hereof.


 


“Offer Period” has the meaning set forth in Section 9.4(c) hereof.


 


“Offer Price” has the
meaning set forth in Section 9.4(a) hereof.


 


“Permitted Transfer”  has the meaning set forth in Section 9.2
hereof.


 


“Permitted Working Capital Assets” means any
of the following: (i) Securities, (ii) Cash Equivalents, and (iii) any
other readily liquid assets approved by the Consent of the Members.


 


“Person” means any
individual, partnership (whether general or limited), limited liability
company, corporation, association, business trust, trust, estate, association,
custodian, nominee, or other entity, in its own or any representative capacity.


 


“Profits” and “Losses” mean, for each Allocation Year, an
amount equal to the Company’s taxable income or loss for such Allocation Year,
determined in accordance with Code Section 703(a) (for this purpose,
all items of income, gain, loss, deduction, or credit required to be stated
separately pursuant to Code Section 703(a)(1) shall be included in
taxable income or loss), with the following adjustments (without duplication):


 


(i)            Any income of the Company that is
exempt from federal income tax and not otherwise taken into account in
computing Profits or Losses pursuant to this definition of “Profits” and “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
Regulations Section 1.704-1(b)(2)(iv)(i),
and not otherwise taken into account in computing Profits or Losses pursuant to
this definition of “Profits” and “Losses,” shall be subtracted from such
taxable income or loss;


 


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(iii)          In
the event the Gross Asset Value of any Company asset is adjusted pursuant to
subparagraph (ii) or subparagraph (iii) of the definition of “Gross
Asset Value” set forth in this Section 1.10, the amount of such adjustment
shall be treated as an item of gain (if the adjustment increases the Gross
Asset Value of the asset) or an item of loss (if the adjustment decreases the
Gross Asset Value of the asset) from the disposition of such asset and shall be
taken into account for purposes of computing Profits or Losses;


 


(iv)          Gain or loss resulting from any
disposition of 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;


 


(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 Allocation Year, computed in
accordance with the definition of Depreciation;


 


(vi)          To the extent an adjustment to the
adjusted tax basis of any Company asset pursuant to Code Section 734(b) is
required, pursuant to Regulations Section 1.704-(b)(2)(iv)(m)(4),
to be taken into account in determining Capital Accounts as a result of a
distribution other than in liquidation of a Member’s interest in the Company,
the amount of such adjustment shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the adjustment
decreases such basis) from the disposition of such asset and shall be taken
into account for purposes of computing Profits or Losses; and


 


(vii)         Notwithstanding
any other provision of this definition, any items that are specially allocated
pursuant to Section 3.2 or Section 3.3 hereof shall not be taken into
account in computing Profits or Losses.


 


The amounts of the
items of Company income, gain, loss, or deduction available to be specially
allocated pursuant to Sections 3.2 and 3.3 shall be determined by applying rules analogous
to those set forth in subparagraphs (i) through (vi) of this
definition.


 


“Property” means all real
and personal property acquired and owned by the Company (including cash) and
any improvements thereto, and shall include both tangible and intangible
property.


 


“Purchase Offer” has the meaning set forth
in Section 9.4(a) hereof.


 


“Purchaser” has the
meaning set forth in Section 9.4(a) hereof.


 


“Reconstitution Period”
has the meaning set forth in Section 11.1(b) hereof.


 


11

















 


“Regulations” means the
Income Tax Regulations, including Temporary Regulations, promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).


 


“Regulatory Allocations”
has the meaning set forth in Section 3.3 hereof.


 


“Retirement” means, as to
any Member, the occurrence of any event or the taking of any action that causes
such Person to cease to be a Member, as set forth in Article X.


 


“Securities” means securities and other
financial instruments issued by United States and foreign entities, including,
without limitation, (i) capital stock; (ii) mortgage-backed securities;
(iii) shares of beneficial interest; (iv) partnership interests,
limited liability company interests, and similar financial instruments; (v) bonds,
notes, debentures (whether subordinated, convertible, or otherwise); (vi) interest
rate, currency, commodity, equity, and other derivative products, including,
without limitation, (A) futures contracts (and options thereon) relating
to stock indices, currencies, United States government securities and
securities of foreign governments, other financial instruments and all other
commodities, (B) swaps, options, rights, warrants, caps, collars, floors,
forward rate agreements, and repurchase and reverse repurchase agreements, (C) spot
and forward currency transactions, and (D) agreements relating to or securing
such transactions; (vii) mutual funds and money market funds; (viii) obligations
of the United States, any state thereof, foreign governments and
instrumentalities of any of them; (ix) commercial paper, certificates of
deposit, banker’s acceptances, trust receipts, letters of credit, and money
market instruments; and (x) other obligations and instruments or evidences
of indebtedness of whatever kind or nature; in each case, of any Person and
whether or not publicly traded or readily marketable.


 


“Seller” has the meaning
set forth in Section 9.4 hereof.


 


“Share” or “Shares” means the limited liability company
interests of the Company authorized by Section 2.2 of this Agreement.


 


“Tax Distributions” has
the meaning set forth in Section 4.2(a) hereof.


 


“Tax Matters Member” has the meaning set
forth in Section 7.3(a) hereof.


 


“Transfer” means (i) as a noun, any
voluntary or involuntary (including pursuant to judicial order (including a
qualified domestic relations order), legal process, execution, attachment or
enforcement of any pledge, trust, or other security interest) transfer, sale,
exchange, assignment, pledge, hypothecation, other encumbrance, gift, bequest,
grant of a security interest, or any other alienation or disposition, and (ii) as
a verb, voluntarily or involuntarily (including pursuant to judicial order
(including a qualified domestic relations order), legal process, execution,
attachment, or enforcement of any pledge, trust, or other security interest) to
transfer, sell, exchange, assign, pledge, hypothecate, encumber, give,
bequeath, grant a security interest in, or otherwise alienate or dispose of.
The term includes any such action whether taken directly by the transferor or
indirectly by, for, or on behalf of the transferor by any other Person,
including by an executor, personal representative, receiver, trustee,
custodian, administrator, or similar official.


 


12

















 


Article II


MEMBERS’ CAPITAL CONTRIBUTIONS


 


2.1           Members and Capital Accounts. The name,
address, and Capital Contributions of, and the number of Shares held by, each
Member shall be set forth on Exhibit A attached hereto.  Exhibit A shall be amended by the
Board of Managers from time to time to reflect changes, if any, in the information
set forth therein.  (Any amendment to Exhibit A
made by the Board of Managers in accordance with this Agreement shall not be
deemed an amendment of this Agreement for purposes of Section 8.1
hereof.)  A separate Capital Account
shall be maintained for each Member, including any Member who shall, after the
Effective Date, acquire an interest in the Company.


 


2.2           Shares.  The limited liability company interests of
the Company are represented by Shares. 
The total number of Shares that the Company shall have the authority to
issue is one million (1,000,000). The Board of Managers is hereby authorized,
on behalf of the Company, to issue authorized but unissued Shares to such
Persons and for such Capital Contributions (which may be in cash, property or
services rendered, or a promissory note or other obligation to contribute cash
or property or to perform services, or any combination of the foregoing) as the
Board of Managers, in its sole and absolute discretion, shall determine.  Each Person to whom Shares are issued shall
be admitted to the Company as a Member upon such Person’s execution of this
Agreement in such manner as the Board of Managers shall determine.


 


2.3           Other Matters.


 


(a)           Except as otherwise
provided in this Agreement, no Member shall demand or receive a return of all
or any portion of such Member’s Capital Contributions or withdraw from the
Company without the consent of all of the Members.  Under circumstances requiring a return of any
Capital Contributions, no Member shall have the right to receive property other
than cash except as may be specifically provided herein.


 


(b)           No Member shall
receive any interest, salary, or drawing with respect to such Member’s Capital
Contributions or such Member’s Capital Account or for services rendered on behalf
of the Company or otherwise in such Member’s capacity as a Member, except as
otherwise provided in this Agreement.


 


(c)           No Member or Manager
shall be liable for the debts, liabilities, contracts, or any other obligations
of the Company, whether arising in contract, tort or otherwise, solely by
reason of being a Member or acting as a Manager hereunder.  Except as otherwise provided by this
Agreement, any other agreements among the Members, or mandatory provisions of
applicable state law, a Member shall be liable only to make such Member’s
Capital Contributions and shall not be required to restore a deficit balance in
such Member’s Capital Account or to lend any funds to the Company or, after
such Member’s Capital Contributions have been made, to make any additional
capital contributions to the Company.


 


13

















 


(d)           No Manager or Member
shall have any personal liability for the repayment of the Capital
Contributions of any Member.


 


2.4           Investment
Representations.


 


(a)           In
acquiring Shares in the Company, each Member represents and warrants to the
Board of Managers that such Member is acquiring such Shares for such Member’s
own account for investment and not with a view to the sale or distribution of
such Shares, in whole or in part.  Each
Member recognizes that investments such as that contemplated by the Company are
speculative and involve substantial risk. 
Each Member further represents and warrants that the Board of Managers
has not made any guaranty or representation upon which such Member has relied
concerning the possibility or probability of economic profit or loss as a
result of such Member’s acquisition of Shares in the Company.


 


(b)           Each
Member understands and acknowledges that (i) the Shares have not been
registered under the Securities Act of 1933, as amended, in reliance upon an
exemption from such registration; (ii) such Member may not sell, offer for
sale, transfer, pledge, or hypothecate such Member’s Shares, in whole or in
part, in the absence of an effective registration statement covering such
Shares under said Act unless, in the opinion of counsel reasonably acceptable
to the Board of Managers, such sale, offer of sale, transfer, pledge, or
hypothecation is exempt from registration under said Act; (iii) neither
the Company nor the Board of Managers has any obligation to register Shares for
sale or to assist in establishing an exemption from registration for any
proposed sale; and (iv) the foregoing restrictions on transfer (as well as
those set forth in Article IX of this Agreement) may severely
affect the liquidity of such Member’s investment.


 


Article III


ALLOCATIONS


 


3.1.          Profits and Losses.
After giving effect to the special allocations set forth in Sections 3.2 and
3.3, Profits and Losses for each Allocation Year shall be allocated among the
Members in proportion to the number of Shares held by each Member.


 


3.2           Special Allocations.  The following special allocations shall be
made in the following order:


 


(a)           Minimum Gain Chargeback. Except as otherwise provided in Regulations Section 1.704-2(f),
notwithstanding any other provision of this Article III (other than
Section 3.4(a)), if there is a net decrease in Company Minimum Gain during
any Allocation Year, each Member shall be specially allocated items of Company
income and gain for such Allocation Year (and, if necessary, subsequent
Allocation Years) in an amount equal to such Member’s share of the net decrease
in Company Minimum Gain, determined in accordance with Regulations Section 1.704-2(g).
Allocations pursuant to the previous sentence shall be made in proportion to
the respective amounts required to be allocated to each Member pursuant
thereto. The items to be so allocated shall be determined in accordance with
Regulations Sections 1.704-2(f)(6) and 1.704-2(j)(2). This


 


14

















 


Section 3.2(a) is intended to comply with the minimum gain
chargeback requirement in Regulations Section 1.704-2(f) and shall be
interpreted consistently therewith.


 


(b)           Member Minimum Gain Chargeback. Except as otherwise provided in
Regulations Section 1.704-2(i)(4), notwithstanding any other provision of
this Article III (other than Section 3.4(a)), if there is a
net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member
Nonrecourse Debt during any Allocation Year, each Member who has a share of the
Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse
Debt, determined in accordance with Regulations Section 1.704-2(i)(5),
shall be specially allocated items of Company income and gain for such
Allocation Year (and, if necessary, subsequent Allocation Years) in an amount
equal to such Member’s share of the net decrease in Member Nonrecourse Debt,
determined in accordance with Regulations Section 1.704-2(i)(4).
Allocations pursuant to the previous sentence shall be made in proportion to
the respective amounts required to be allocated to each Member pursuant
thereto. The items to be so allocated shall be determined in accordance with
Regulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 3.2(b) is
intended to comply with the minimum gain chargeback requirement in Regulations Section 1.704-2(i)(4) and
shall be interpreted consistently therewith.


 


(c)           Qualified Income Offset. 
In the event any Member unexpectedly receives any adjustments,
allocations, or distributions described in Regulations Section 1.704-1(b)(2)(ii)(d)(4),
Section 1.704-1(b)(2)(ii)(d)(5), or Section 1.704-1(b)(2)(ii)(d)(6),
items of Company income and gain shall be specially allocated to such Member in
an amount and manner sufficient to eliminate, to the extent required by the
Regulations, the Adjusted Capital Account Deficit of such Member as quickly as
possible, provided, that an allocation pursuant to this Section 3.2(c) shall
be made only if and to the extent that such Member would have an Adjusted
Capital Account Deficit after all other allocations provided for in this Article III
have been tentatively made as if this Section 3.2(c) were not in the
Agreement.


 


(d)           Gross Income Allocation. 
In the event any Member has a deficit Capital Account at the end of any
Allocation Year that is in excess of the amount such Member is obligated to
restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and
1.704-2(i)(5), such Member shall be specially allocated items of Company income
and gain in the amount of such excess as quickly as possible, provided,
that an allocation pursuant to this Section 3.2(d) shall be made only
if and to the extent that such Member would have a deficit Capital Account in
excess of such amount after all other allocations provided for in this Article III
have been made as if Section 3.2(c) and this Section 3.2(d) were
not in the Agreement.


 


(e)           Nonrecourse Deductions. Nonrecourse Deductions for any
Allocation Year shall be specially allocated to the Members in proportion to
the number of Shares held by each Member.


 


(f)            Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for
any Allocation Year shall be specially allocated to the Member who bears


 


15

















 


the economic risk of loss
with respect to the Member Nonrecourse Debt to which such Member Nonrecourse
Deductions are attributable in accordance with Regulations Section 1.704-2(i)(1).


 


(g)           Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis
of any Company asset pursuant to Code Section 734(b) or Section 743(b) is
required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Section 1.704-1(b)(2)(iv)(m)(4),
to be taken into account in determining Capital Accounts as the result of a
distribution to a Member in complete liquidation of such Member’s interest in
the Company, the amount of such adjustment to the Capital Accounts shall be treated
as an item of gain (if the adjustment increases the basis of the asset) or as
an item of loss (if the adjustment decreases such basis), and such gain or loss
shall be specially allocated to the Members in accordance with their interests
in the Company in the event Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Member to
whom such distribution was made in the event Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.


 


3.3           Curative Allocations.  The allocations set forth in Section 3.2
(the “Regulatory Allocations”) are intended to comply with certain requirements
of the Regulations.  It is the intent of
the Members that, to the extent possible, all Regulatory Allocations shall be
offset either with other Regulatory Allocations or with special allocations of
other items of Company income, gain, loss, or deduction pursuant to this Section 3.3.  Therefore, notwithstanding any other
provision of this Article III (other than the Regulatory
Allocations), the Board of Managers shall make such offsetting special
allocations of Company income, gain, loss, or deduction in whatever manner the
Board of Managers determines appropriate so that, after such offsetting
allocations are made, each Member’s Capital Account balance is, to the extent
possible, equal to the Capital Account balance such Member would have had if
the Regulatory Allocations were not part of this Agreement and all Company
items were allocated pursuant to Section 3.1 hereof.  In exercising its discretion under this Section 3.3,
the Board of Managers shall take into account future Regulatory Allocations
under Sections 3.2(a) and 3.2(b) that, although not yet made, are
likely to offset other Regulatory Allocations previously made under Sections
3.2(c) and 3.2(d).


 


3.4           Other Allocation Rules.


 


(a)           For purposes of
determining the Profits, Losses, or any other items allocable to any period,
Profits, Losses, and any such other items shall be determined on a daily,
monthly, or other basis, as determined by the Board of Managers using any
permissible method under Code Section 706 and the Regulations thereunder.


 


(b)           Profits, Losses, and
any other items of income, gain, loss, or deduction shall be allocated to the
Members pursuant to this Article III as of the last day of each
Allocation Year; provided, that Profits, Losses, and such other items
shall also be allocated at such times as the Gross Asset Values of Property are
adjusted pursuant to subparagraph (ii) of the definition of “Gross Asset
Value” set forth in Section 1.10 hereof, as if each such time were the
last day of an Allocation Year.


 


16

















 


(c)           If the interest of a Member in the Company is changed
during an Allocation Year for any reason other than the transfer of all or a
portion of such interest, then such Member’s share of each item of Company
income, gain, loss, deduction, or credit shall be determined for federal income
tax purposes by taking into account such Member’s varying interests during such
Allocation Year using any convention or method permitted by the Code or the
Regulations.


 


(d)           The Members are
aware of the income tax consequences of the allocations made by this Article III
and hereby agree to be bound by the provisions of this Article III
in reporting their shares of Company income and loss for income tax purposes.


 


(e)           Solely for purposes
of determining a Member’s proportionate share of the “excess nonrecourse
liabilities” of the Company within the meaning of Regulations Section 1.752-3(a)(3),
the Members’ interests in Company profits are in proportion to the number of
Shares held by each Member.


 


(f)            In
the event that the Company has taxable income that is characterized as ordinary
income under the recapture provisions of the Code, each Member’s distributive
share of taxable gain or loss from the sale of Company assets shall (to the
extent possible) include a proportionate share of this recapture income equal
to such Member’s share of prior cumulative depreciation deductions with respect
to the assets that gave rise to the recapture income.


 


3.5           Tax Allocations: 
Code Section 704(c). 
Except as otherwise provided in this Section 3.5, each item of
income, gain, loss and deduction of the Company for federal income tax purposes
shall be allocated among the Members in the same manner as such item is
allocated for book purposes under this Article III.  In accordance with Code Section 704(c) and
the Regulations thereunder, income, gain, loss, and deduction with respect to
any property contributed to the capital of the Company shall, solely for tax
purposes, be allocated among the Members so as to take account of any variation
between the adjusted basis of such property to the Company for federal income
tax purposes and its initial Gross Asset Value (computed in accordance with
subsection (i) of the definition of “Gross Asset Value” set forth in Section 1.10
hereof) using the “traditional method” pursuant to the Regulations under Code Section 704(c).


 


In the event the Gross Asset Value of any Company asset is adjusted
pursuant to subsection (ii) of the definition of “Gross Asset Value” set
forth in Section 1.10 hereof, subsequent allocations of income, gain,
loss, and deduction with respect to such asset shall take account of any
variation between the adjusted basis of such asset for federal income tax
purposes and its Gross Asset Value in the same manner as under Code Section 704(c) and
the Regulations thereunder.


 


Any elections or other decisions relating to such allocations shall be
made by the Board of Managers in any manner that reasonably reflects the
purpose and intention of this Agreement. 
Allocations pursuant to this Section 3.5 are solely for purposes of
federal, state, and local taxes and shall not affect, or in any way be taken
into account in computing, any Member’s Capital Account or share of Profits,
Losses, other items, or distributions pursuant to any provision of this
Agreement.


 


17

















 


Article IV


DISTRIBUTIONS


 


4.1           Net Cash Available for Distribution.  Net Cash Available for Distribution shall be
determined by the Board of Managers for each Fiscal Quarter as of the end of
such Fiscal Quarter. Except as otherwise provided in Article XI,
the Board of Managers may, in its sole and absolute discretion, distribute any
portion or all, or none, of the Net Cash Available for Distribution, if any,
for each Fiscal Quarter to the Members in proportion to the number of Shares
held by each Member.


 


4.2           Tax
Distributions.


 


(a)           Notwithstanding anything to the
contrary contained in this Article, with respect to any taxable year of the
Company during which the Company does not liquidate or sell all or
substantially all of its assets, the Board of Managers shall use all reasonable
efforts to distribute to each Member (a “Tax Distribution”), on a timely basis,
an amount of cash that shall be sufficient to cause each Member to have
received with respect to such taxable year distributions at least equal to 40%
of the “increase in the cumulative amount of federal taxable income” (as
defined below) allocated to such Member, less any item of partner-level
deduction attributable to such Member as result of an election made under Section 754
of the Code; provided, that (i) in order to take into account
changes in federal, state or local tax laws and regulations, the Board of
Managers may increase or decrease such percentage; and (ii) the Board of
Managers may apply different or separate percentages to different classes of
income. Distributions made pursuant to this Section 4.2 shall be taken
into account as distributions made pursuant to Section 4.1 hereof.


 


(b)           Distributions pursuant to this Section 4.2
shall be made during the taxable year to which such distributions relate for
the purpose of funding the federal and state estimated tax liabilities of the
Members based on the taxable income of the Company during the periods with
respect to which estimated tax payments are due, and shall be made not less
than five (5) days before the due date of each estimated tax payment by an
individual taxpayer.


 


(c)           For purposes of this Section 4.2,
the “increase in the cumulative amount of federal taxable income” for any
taxable year with respect to any Member shall be the excess of (i) the
aggregate allocations of taxable income to such Member for all taxable years of
the Company including such current taxable year, less the aggregate allocations
of taxable loss to such Member for all taxable years of the Company including
such current taxable year, over (ii) the aggregate allocations of taxable
income to such Member for all taxable years of the Company excluding such
current taxable year, less the aggregate allocations of taxable loss to such
Member for all taxable years of the Company excluding such current taxable
year.


 


4.3           Amounts Withheld.  All amounts withheld pursuant to the Code or
any provision of any state or local tax law with respect to any payment,
distribution, or allocation to the Company or the Members shall be treated as
amounts paid or distributed, as the case may be, to the Members with respect to
whom such amounts were withheld pursuant to this Section 4.3 for all
purposes under this Agreement.  The
Company is authorized to withhold from payments and distributions, or with
respect to allocations, to the Members, and to pay over to any federal, state
or local


 


18

















 


government, any amounts required to be so withheld
pursuant to the Code or any provisions of any other federal, state or local
law, and shall allocate any such amounts to the Members with respect to whom
such amounts were withheld.


 


4.4           Limitations
on Distributions.


 


(a)           The Company shall make no distributions
to the Members except as provided in this Article IV and Article XI
hereof or as agreed to by all of the Members.


 


(b)           A Member may not receive a distribution from the Company
to the extent that, after giving effect to the distribution, all liabilities of
the Company, other than liabilities to the Members on account of their Capital
Contributions, would exceed the fair value of the Company’s assets.


 


(c)           Notwithstanding
any provision to the contrary contained in this Agreement, the Company shall
not be required to make a distribution to any Member on account of such Member’s
interest in the Company if such distribution would violate the Act or any other
applicable law.


 


Article V


MANAGEMENT


 


5.1           Managers; Board of Managers.


 


(a)           The
management of the Company shall be vested in the Managers.  The Managers shall comprise a “Board
of Managers,” which Board of Managers shall function in the same manner as a
board of directors of a Massachusetts corporation. Managers need not be a Member of the Company.   All actions by the Company
that, if the Company were a corporation, would require approval of a board of
directors under Massachusetts law or for which, if the Company were a
corporation, it would be customary, using good practice, to obtain such
approval, shall require the approval of the Board of Managers.  Each Manager shall have one (1) vote.  Except as otherwise provided in this
Agreement, the Board of Managers shall act by the affirmative vote of a
majority of the total number of Managers.


 


(b)           The
initial number of Managers on the Board of Managers shall be one.  As of the Effective Date, the Manager of the
Company is Harold Brown.  The number of
Managers may be increased or decreased (but not below one) from time to time by
the Consent of the Members.


 


(c)           Each Manager shall
serve as such until the first to occur of such Person’s death, permanent and
total disability, dissolution, termination, Bankruptcy, or resignation or
removal as a Manager.  For purposes of
this Section 5.1, a Manager shall be regarded as permanently and totally
disabled if such Manager is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment
that can be expected to result in death or that has lasted or can reasonably be
expected to last for a continuous period of not less than six (6) months.  A Manager may resign as such by giving
written notice to the remaining Managers or, if there is no remaining Manager,
to the Members.  Such resignation shall
take effect at the time or upon the event specified therein or, if none is
specified, upon receipt.  Unless


 


19

















 


otherwise
specified in the resignation, its acceptance shall not be necessary to make it
effective.  A Manager may be removed at
any time, with or without cause, by the Consent of the Members; provided,
however, that in no event shall the Members have the power or authority
to remove Harold Brown as a Manager.


 


(d)           In the event of a
vacancy in the office of Manager by reason of the death, permanent and total
disability, Bankruptcy, or resignation of Harold Brown, the Members shall, by
the Consent of the Members, elect a Manager to fill such vacancy.  In the event of any further vacancy in the
office of Manager by reason of the death, permanent and total disability,
dissolution, termination, Bankruptcy, or resignation or removal of a Manager,
the Members shall, by the Consent of the Members, either (i) elect a
Manager to fill such vacancy, or (ii) if there is at least one other
Manager then serving, decrease the number of Managers by one in order to
eliminate such vacancy.


 


(e)           In the event of a
vacancy in the office of Manager by reason of an increase in the number of
Managers, the Members shall, by the Consent of the Members, elect a Manager to
fill such vacancy.


 


(f)            Each
Manager shall perform his duties as a Manager in good faith, in a manner he
reasonably believes to be in the best interests of the Company, and with such
care as an ordinarily prudent individual in a like position would use under
similar circumstances. So long as a Manager so performs his duties, such
Manager shall not have any liability by reason of being or having been a
Manager of the Company.


 


(g)           A
Manager shall not be liable under a judgment, decree or order of court, or in
any other manner, for any debt, obligation, or liability of the Company.


 


5.2.          Meetings of the Board of Managers.


 


(a)           The
Board of Managers shall hold regular meetings not less frequently than once
every Fiscal Year and shall establish meeting times, dates, and places, and
requisite notice requirements (not shorter than those provided in Section 5.2(b)),
and adopt rules or procedures consistent with the terms of this Agreement.
Unless otherwise approved by the Board of Managers, each regular meeting of the
Board of Managers will be held at the Company’s principal place of business. At
such meetings the Board of Managers shall transact such business as may
properly be brought before the meeting, whether or not notice of such meeting
referenced the action taken at such meeting.


 


(b)           Special
meetings of the Board of Managers may be called by any Manager. Notice of each
such meeting shall be given to each Manager by telephone, electronic mail,
facsimile transmission, or similar method (in each case, notice shall be given
at least seventy-two (72) hours before the time of the meeting), or by
first-class mail (in which case notice shall be given at least five (5) days
before the meeting), unless a longer notice period is established by the Board
of Managers. Each such notice shall state (i) the time, date, place (which
shall be at the principal office of the Company unless otherwise agreed to by
all of the Managers), or other means of conducting such meeting, and (ii) the
purpose of the meeting to be so held. No actions


 


20
















 


other than those
specified in the notice may be considered at any special meeting unless
unanimously approved by the Managers.


 


(c)           Any Manager may waive notice of any
meeting in writing before, at, or after such meeting. The attendance of a
Manager at a meeting shall constitute a waiver of notice of such meeting,
except when a Manager attends a meeting for the express purpose of objecting to
the transaction of any business because the meeting was not properly called.


 


(d)           Any
action required or permitted to be taken at a meeting of the Board of Managers
may be taken at a meeting held by means of conference telephone or other
communications equipment by means of which each Person participating in the
meeting can hear each other Person participating in such meeting. Participation
in such a meeting shall constitute presence in person at such meeting.


 


(e)           Notwithstanding
anything to the contrary contained in this Section 5.2, the Board of
Managers may take without a meeting any action that may be taken by the Board
of Managers under this Agreement if such action is approved by the written
consent of a majority of the total number of Managers.


 


5.3           Authority of the Board of Managers.  Subject to the limitations and restrictions
set forth in this Agreement (including, without limitation, those set forth in
this Article V), the Board of Managers shall have the sole and
exclusive right to manage, control, and direct the business and affairs of the
Company and, in so doing, shall have the right to exercise all of the powers
that may be possessed by the Company under the Act or otherwise, including,
without limitation, the right to exercise the following powers in the name and
on behalf of the Company:


 


(i)            Conduct
the Company’s business, carry on its operations, and have and exercise the
powers granted by the Act in any state, territory, district, or possession of
the United States as may be necessary or convenient to effect any or all of the
purposes for which the Company is organized;


 


(ii)           Acquire
by purchase, lease, or otherwise any real or personal property that may be
necessary, convenient, desirable, appropriate, or incidental to the
accomplishment of the purposes of the Company;


 


(iii)          Operate,
maintain, finance, improve, construct, own, grant options with respect to,
sell, convey, assign, mortgage, and lease any real estate and any personal
property necessary, convenient, or incidental to the accomplishment of the
purposes of the Company;


 


(iv)          Execute
any and all agreements, contracts, documents, certifications, and instruments
necessary or convenient in connection with the management and operation of the
business and affairs of the Company, including executing amendments to this
Agreement and the Certificate, in accordance with the terms of this Agreement,
both as Managers and, if required, as attorney-in-fact for the Members pursuant
to any power of attorney granted by the Members to the Managers;


 


21

















 


(v)           Borrow
money and issue evidences of indebtedness necessary, convenient, or incidental
to the accomplishment of the purposes of the Company, and secure the same by
mortgage, pledge, or other lien on any Property;


 


(vi)          Execute,
in furtherance of any or all of the purposes of the Company, any deed, lease,
mortgage, deed of trust, mortgage note, promissory note, bill of sale,
contract, or other instrument purporting to convey or encumber any or all of
the Property;


 


(vii)         Prepay
in whole or in part, refinance, recast, increase, modify, or extend any
liabilities affecting the Property and in connection therewith execute any
extensions or renewals of encumbrances on any or all of the Property;


 


(viii)        Care
for and distribute funds to the Members by way of cash income, return of
capital, or otherwise, all in accordance with the provisions of this Agreement,
and perform all matters in furtherance of the objectives of the Company or this
Agreement;


 


(ix)           Contract
on behalf of the Company for the employment and services of employees and/or
independent contractors, such as property managers, property maintenance
companies, contractors, lawyers, and accountants, and delegate to such Persons
the duty to manage, supervise, or otherwise deal with any of the assets or
operations of the Company;


 


(x)            Engage in any kind
of activity and perform and carry out contracts of any kind (including
contracts of insurance covering risks to Property) necessary or incidental to,
or in connection with, the accomplishment of the purposes of the Company, as
may be lawfully carried on or performed by a limited liability company under
the laws of each state or other jurisdiction in which the Company is then
formed or qualified;


 


(xi)           Take,
or refrain from taking, all actions, not expressly proscribed or limited by
this Agreement, as may be necessary or appropriate to accomplish the purposes
of the Company; and


 


(xii)          Institute,
prosecute, defend, settle, compromise, and dismiss lawsuits or other judicial
or administrative proceedings brought on or in behalf of, or against, the
Company or the Members in connection with activities arising out of, connected
with, or incidental to this Agreement, and to engage counsel or others in
connection therewith.


 


5.4           Right to Rely on Managers.


 


(a)           Any Person dealing
with the Company may rely (without duty of further inquiry) upon a certificate
signed by any Manager as to:


 


(i)            The
identity of any Member or Manager;


 


22

















 


(ii)           The
existence or nonexistence of any fact or facts that constitute a condition
precedent to acts by the Company or that are in any other manner germane to the
affairs of the Company;


 


(iii)          The
Persons who are authorized to execute and deliver any instrument or document of
the Company; or


 


(iv)          Any
act or failure to act by the Company or any other matter whatsoever involving
the Company, any Manager, or any Member.


 


(b)           The signature of any
Manager shall be necessary and sufficient to convey title to any real or
personal property owned by the Company or to execute any promissory notes,
trust deeds, mortgages, or other instruments of hypothecation, and all of the
Members agree that a copy of this Agreement may be shown to the appropriate
parties in order to confirm the same, and further agree that the signature of
any Manager shall be sufficient to execute any document necessary to effectuate
this or any other provision of this Agreement. 
All of the Members do hereby appoint any Manager as their
attorney-in-fact for the execution of any or all of the documents described in
this Section 5.4(b).


 


(c)           Each Manager is an
agent of the Company for the purpose of its business and affairs.  The act of any Manager, including, but not
limited to, the execution in the name of the Company of any instrument, for
apparently carrying on in the usual way the business or affairs of the Company
shall be binding upon the Company unless (i) such Manager in fact has no
authority to act for the Company in the particular matter, and (ii) the
Person with whom such Manager is dealing has knowledge of the fact that such
Manager has no such authority.


 


5.5           Restrictions on Authority of the Managers.  Notwithstanding anything to the contrary
contained in this Agreement, the Board of Managers shall have no authority to,
and each Manager hereby covenants and agrees that he shall not, cause or allow
the Company to do any of the following acts without the Consent of the Members:


 


(i)            Engage
in any activity that is not consistent with the purposes of the Company as set
forth in Section 1.3 hereof;


 


(ii)           Do
any act in contravention of this Agreement;


 


(iii)          Possess
or assign rights in the Property of the Company other than for a Company
purpose;


 


(iv)          Admit
any additional Members, other than pursuant to Section 2.2 or Section 9.7
hereof;


 


(v)           Perform
any act that would subject any Member to personal liability for the debts or
obligations of the Company in any jurisdiction;


 


(vi)          File
on behalf of the Company any voluntary petition in Bankruptcy; or


 


23

















 


(vii)         Cause
or permit the Company to liquidate or dissolve.


 


5.6           Duties and Obligations of the Board of Managers.


 


(a)           The Board of
Managers shall cause the Company to conduct its business and affairs separate
and apart from the business and affairs of any Member or Manager, or any
Affiliate of any Member or Manager, including, without limitation, (i) segregating
Company assets and not allowing funds or other assets of the Company to be
commingled with the funds or other assets of, held by, or registered in the
name of any Member or Manager, or any Affiliate of any Member or Manager, (ii) maintaining
books and financial records of the Company separate from the books and
financial records of any Member or Manager and the Affiliates of any Member or
Manager, and observing all Company procedures and formalities, (iii) causing
the Company to pay its liabilities from assets of the Company, and (iv) causing
the Company to conduct its dealings with third parties in its own name and as a
separate and independent entity.


 


(b)           The Board of
Managers shall take all actions that may be necessary or appropriate (i) for
the continuation of the Company’s valid existence as a limited liability
company under the laws of the Commonwealth of Massachusetts and of each other
jurisdiction in which such existence is necessary to protect the limited
liability of the Members or to enable the Company to conduct the business in
which it is engaged, and (ii) for the accomplishment of the Company’s
purposes in accordance with the provisions of this Agreement and applicable
laws and regulations.


 


(c)           The Board of
Managers shall be under a fiduciary duty to conduct the affairs of the Company
in the best interests of the Company and of the Members, including the use of
all of the Property for the exclusive benefit of the Company.


 


(d)           The Board of
Managers shall cause to be provided, or cause the Company to carry, such
insurance as is customary in the business in which the Company is engaged and
in the place or places in which it is so engaged.


 


5.7           Indemnification.


 


(a)           Except as otherwise
provided in Section 5.7(e), the Company, its receiver, or its trustee (in
the case of its receiver or trustee, to the extent of the Property) shall
indemnify each Manager and each Member against, hold each such Person harmless
from, and pay all Expenses incurred by each such Person as a result of any and
all claims and demands whatsoever against each such Person relating to any act
performed or omitted to be performed by such Person in connection with the
Company’s business and affairs. 
Indemnification hereunder shall include, without limitation, payment by
the Company of Expenses incurred in defending a civil or criminal action or
proceeding in advance of the final disposition of such action or proceeding,
but only upon receipt of an undertaking by the Person indemnified to repay such
payment if such Person shall be adjudicated not to be entitled to
indemnification hereunder.  Any such
undertaking may be accepted without reference to the financial ability of the
Person indemnified to make repayment.


 


24

















 


(b)           Except as otherwise
provided in Section 5.7(e), the Company, its receiver, or its trustee (in
the case of its receiver or trustee, to the extent of the Property) shall
indemnify and hold harmless, to the maximum extent permitted by law, each
Manager and each Member from and against any and all liabilities, sums paid in
settlement of claims (if such settlement is consented to by the Board of
Managers), obligations, charges, actions (formal or informal), claims
(including, without limitation, claims for personal injury under any theory or
for real or personal property damage), liens, taxes, administrative
proceedings, losses, damages (including, without limitation, foreseeable,
unforeseeable, consequential, and punitive damages), penalties, fines, court
costs, administrative service fees, response and remediation costs,
stabilization costs, encapsulation costs, treatment, storage or disposal costs,
groundwater monitoring or environmental study, sampling or monitoring costs,
and any other costs and reasonable expenses (including, without limitation,
reasonable attorneys’, experts’, and consultants’ fees and disbursements and
investigating, laboratory, and data review fees) imposed upon or incurred by
the Person indemnified (whether or not indemnified against by any other party)
and arising from and after the Effective Date directly or indirectly out of:


 


(i)            the
past, present, or future treatment, storage, disposal, generation, use,
transport, movement, presence, release, threatened release, spill,
installation, sale, emission, injection, leaching, dumping, escaping, or
seeping of any Hazardous Substances, or material containing or alleged to
contain Hazardous Substances, at or from any past, present, or future
properties or assets of the Company;


 


(ii)           the
violation or alleged violation by the Company or any third party of any
Environmental Laws with regard to the past, present, or future ownership,
operation, use, or occupying of any property or asset of the Company; or


 


(iii)          any
Environmental Claim arising in connection with any business or activities of
the Company.


 


(c)           Except as otherwise
provided in Section 5.7(e), in the event of any action by a Member against
any one or more of the Managers, including a Company derivative suit, the
Company shall indemnify, save harmless, and pay all Expenses of each such
Manager incurred in the defense of such action, but only if such Manager is not
judged liable in such action.


 


(d)           Except as otherwise
provided in Section 5.7(e), the Company shall indemnify, save harmless and
pay all Expenses of any Manager or Member who, for the benefit of the Company
and in accordance with this Agreement, makes any deposit, acquires any option,
or makes any other similar payment or assumes any obligations in connection
with any property proposed to be acquired or leased by the Company and who
suffers any financial loss as the result of such action.


 


(e)           No Manager or Member
shall be indemnified by the Company with respect to any matter as to which such
Person shall have been adjudicated in any proceeding not to have acted in good
faith in the reasonable belief that such Person’s action was in the best
interest of the Company.


 


25

















 


(f)            Notwithstanding
anything to the contrary in any of Sections 5.7(a), 5.7(b), 5.7(c), 5.7(d) and
5.7(e) above, in the event that any provision in any of such Sections is
determined to be invalid in whole or in part, such Section shall be
enforced to the maximum extent permitted by law.


 


5.8           Compensation; Expenses of Manager.


 


(a)           Compensation
and Reimbursement.  Except as
otherwise approved by the Consent of the Members, no Manager shall receive any
salary, fee, or draw for services rendered to or on behalf of the Company, nor
shall any Manager be reimbursed for any expenses incurred by such Manager on
behalf of the Company.


 


(b)           Reimbursement
of Expenses.  Notwithstanding
the foregoing, the Company shall reimburse the Members and Managers for all
expenses incurred and paid by any of them in connection with the conduct of the
Company’s business and affairs, including, but not limited to, expenses of
maintaining an office, telephone, travel, office equipment, and secretarial and
other personnel as may reasonably be attributable to the Company. Such expenses
shall not include any expenses incurred in connection with a Member or Manager’s
exercise of such Person’s rights as a Member or Manager apart from the
authorized conduct of the Company’s business and affairs. The Board of Managers’
determination, in its sole discretion, of (i) which expenses are properly
allocable to, and shall be reimbursed as a result of, the conduct and operation
of the Company’s business and affairs, and (ii) the amount of such
expenses, shall be conclusive on all Persons concerned. Any reimbursement of
expenses under this Section 5.8(b) shall be treated as an expense of
the Company and shall not be deemed to constitute a distribution to any Member
of Profit, Loss, or capital of the Company.


 


5.9           Loans.  Any Member, Manager, or Affiliate of any
Member or Manager may, with the consent of the Board of Managers, lend or
advance money to the Company.  If any
Member shall make a loan to the Company or advance money on its behalf, the
amount of such loan or advance shall not be treated as a contribution to the
capital of the Company but shall be a Debt due from the Company to the lending
Member.  The amount of any loan or
advance by a lending Manager, Member, or Affiliate of a Member or Manager shall
be repayable out of the Company’s cash and shall bear interest at such rate
(not to exceed the maximum rate permitted by law) as shall be determined by the
Board of Managers taking into consideration, without limitation, prevailing
interest rates and the interest rates the lender is required to pay in the
event such lender has itself borrowed funds to loan or advance to the Company,
and the terms and conditions of such loan, including the rate of interest,
shall be no less favorable to the Company than if the lender had been an
independent third party.  None of the
Members, the Managers, or their Affiliates shall be obligated to make any loan
or advance to the Company.


 


Article VI


ROLE OF MEMBERS


 


6.1           Rights or Powers.  No Member (other than a Member who is a
Manager and then only in such Person’s capacity as a Manager) shall have any
right or power to take part in the management or control of the Company or its
business and affairs or to act for or bind the


 


26

















 


Company in any
way.  Notwithstanding the foregoing, the
Members shall have all of the rights and powers specifically set forth in this
Agreement and, to the extent not inconsistent with this Agreement, in the Act.


 


6.2           Voting Rights.  The Members shall have the right to vote only
on those matters set forth in this Agreement or in the Act that are
specifically reserved for their approval or consent.  Each Member shall have one vote for each
Share held by such Member.


 


6.3           Procedure for Consent.  In any circumstances requiring the approval
or consent of the Members as specified in this Agreement, such approval or
consent shall, except as expressly provided to the contrary in this Agreement,
be given or withheld in the sole and absolute discretion of each Member and
conveyed in writing to the Board of Managers not later than thirty (30) days
after such approval or consent is requested by the Board of Managers.  The Board of Managers may require response
within a shorter time, but not less than ten (10) Business Days.  The failure by any Member to respond in any
such time period shall constitute a vote that is consistent with the Board of
Managers’ recommendation with respect to the proposal.  If the Board of Managers receives the Consent
of the Members to such action, the Board of Managers shall be authorized and
empowered to implement such action without further authorization by the
Members.


 


Article VII


BOOKS AND RECORDS


 


7.1.          Accounting, Books and Records.


 


(a)           The
Company shall keep on site (i) at its principal place of business separate
books of account for the Company that shall show a true and accurate record of
all costs and expenses incurred, all charges made, all credits made and
received, and all income derived in connection with the conduct of the Company
and the operation of its business and affairs in accordance with this
Agreement, and (ii) at its registered office in the Commonwealth of
Massachusetts all documents that the Company is required to keep at such
registered office by Section 9 of the Act.


 


(b)           The
Company shall use such method of accounting in preparation of its financial
reports and for tax purposes as shall be determined by the Board of Managers,
in its discretion, and the Company shall keep its books and records
accordingly. Any Member or such Member’s designated representative shall have
the right, during normal business hours, to have reasonable access to, and
inspect and copy, the contents of the books and records of the Company. The
rights granted to a Member pursuant to this Section 7.1(b) are
expressly subject to compliance by such Member with the safety, security, and
confidentiality procedures and guidelines of the Company, as such procedures
and guidelines may be established and modified from time to time by the Board
of Managers.


 


7.2.          Reports.  The Board
of Managers shall be responsible for (i) causing the preparation of such
financial reports of the Company as the Board of Managers may from time to time
determine, and (ii) coordinating the financial matters of the Company with
the Company’s


 


27

















 


accountants.


 


7.3.          Tax Matters.


 


(a)           Tax Elections. The Tax Matters Member shall, without any further
consent of the Members being required (except as specifically required herein),
make any and all elections for federal, state, local, and foreign tax purposes,
including, without limitation, any election, if permitted by applicable law: (i) to
make the election provided for in Code Section 6231(a)(1)(B)(ii); (ii) to
adjust the basis of Property pursuant to Code Sections 754, 734(b), and 743(b),
or comparable provisions of state, local, or foreign law, in connection with
Transfers of Shares and Company distributions; (iii) with the consent of
all of the Members, to extend the statute of limitations for assessment of tax
deficiencies against the Members with respect to adjustments to the Company’s
federal, state, local, or foreign tax returns; and (iv) to the extent
provided in Code Sections 6221 through 6231 and similar provisions of federal,
state, local, or foreign law, to represent the Company and the Members before
taxing authorities or courts of competent jurisdiction in tax matters affecting
the Company or the Members in their capacities as Members, and to file any tax
returns and execute any agreements or other documents relating to or affecting
such tax matters, including agreements or other documents that bind the Members
with respect to such tax matters or otherwise affect the rights of the Company
and the Members. Harold Brown is specifically authorized to act as the “Tax
Matters Member” under the Code and in any similar capacity under state, local,
or foreign law.


 


(b)           Tax Information. Necessary tax information shall be
delivered to each Member as soon as practicable after the end of each Fiscal
Year of the Company.


 


Article VIII


AMENDMENTS


 


8.1           Amendments.


 


(a)           A proposed amendment
to this Agreement shall be adopted and be effective as an amendment to this
Agreement only if it receives the Consent of the Members.


 


(b)           Notwithstanding Section 8.1(a) hereof,
this Agreement shall not be amended without the consent of each Member
adversely affected if such amendment would (i) increase the Capital
Contribution payable by such Member, (ii) modify the limited liability of
such Member, or (iii) alter the interest of such Member in Profits,
Losses, or other items, or in any Company distributions.


 


Article IX


TRANSFERS OF INTERESTS


 


9.1           Restriction on Transfers.


 


(a)           Except as otherwise
permitted by this Agreement, no Member shall Transfer all or any part of such
Member’s Shares without the consent of the Board of Managers, which may be


 


28

















 


given, withheld,
or conditioned in its sole and absolute discretion.  In the event that any Member pledges or
otherwise encumbers any of such Member’s Shares in the Company as security for
the payment of a debt, any such pledge or hypothecation shall be made pursuant
to a pledge or hypothecation agreement that requires the pledgee or secured
party to be bound by all of the terms and conditions of this Article IX.


 


(b)           Notwithstanding
anything to the contrary contained in this Agreement, no Member shall Transfer
any Shares to any Person (regardless of the manner in which such Member
initially acquired such Shares) at any time if such Transfer would constitute a
violation of any federal or state securities or blue sky laws or a breach of
the conditions to any exemption from registration of Shares under any such laws
or a breach of any undertaking or agreement of such Member entered into
pursuant to such laws or in connection with obtaining an exemption thereunder.


 


9.2           Permitted Transfers.  Subject to the conditions and restrictions
set forth in Section 9.3 hereof, a Member may at any time, without the
consent of the Board of Managers, Transfer all or any part of such Member’s
Shares to (a) any other Member, (b) any member of the transferor’s
Family, (c) the transferor’s executor, administrator, guardian,
conservator, trustee, or personal representative to whom such Shares are
transferred at death or involuntarily by operation of law, (d) if the
transferor is a trust, the beneficiaries to whom such Shares are transferred
pursuant to the terms of the governing instrument upon the termination of the
trust, (e) if the transferor is a corporation, general or limited
partnership, or limited liability company, the equity holders to whom such
Shares are transferred upon the dissolution of such entity, or (f) any
Purchaser in accordance with Section 9.4 hereof (any such Transfer being
referred to in this Agreement as a “Permitted Transfer”).  For purposes hereof, a Member’s “Family”
shall include only such Member’s spouse, natural or adoptive lineal ancestors
or descendants, and trusts for the exclusive benefit of any one or more of such
Member and the individual members of such Member’s Family.


 


9.3           Conditions to Permitted Transfers.  A Transfer shall not be treated as a
Permitted Transfer under Section 9.2 hereof unless and until the following
conditions are satisfied:


 


(a)           Except in the case
of a Transfer of Shares at death or involuntarily by operation of law, the
transferor and transferee shall execute and deliver to the Company such
documents and instruments of conveyance as may be necessary or appropriate in
the opinion of counsel to the Company to effect such Transfer and to confirm
the agreement of the transferee to be bound by the provisions of this Article IX.  In the case of a Transfer of Shares at death
or involuntarily by operation of law, the Transfer shall be confirmed by
presentation to the Company of legal evidence of such Transfer, in form and
substance satisfactory to counsel to the Company.  In all cases, the Company shall be reimbursed
by the transferor and/or transferee for all costs and expenses that the Company
reasonably incurs in connection with such Transfer.


 


(b)           Except in the case
of a Transfer at death or involuntarily by operation of law, unless otherwise
approved by the Board of Managers, no Transfer of Shares shall be made except
upon terms that would not, in the opinion of counsel chosen by and mutually
acceptable


 


29

















 


to the Board of
Managers and the transferor Member, result in the termination of the Company
within the meaning of Code Section 708 or cause the Company to cease to be
classified as a “partnership” for federal income tax purposes.


 


(c)           The transferor and
transferee shall furnish the Company with the transferee’s taxpayer
identification number and sufficient information to determine the transferee’s
initial tax basis in the Shares transferred, and any other information
reasonably necessary to permit the Company to file all required federal and
state tax returns and other legally required information statements or returns.  Without limiting the generality of the
foregoing, the Company shall not be required to make any distribution otherwise
provided for in this Agreement with respect to any transferred Shares until it
has received such information.


 


(d)           Except in the case
of a Transfer of Shares at death or involuntarily by operation of law, either (a) such
Shares shall be registered under the Securities Act of 1933, as amended, and
any applicable state securities laws, or (b) the transferor shall provide
an opinion of counsel, which opinion and counsel shall be satisfactory to the
Company, to the effect that such Transfer is exempt from all applicable
registration requirements and that such Transfer will not violate any
applicable laws regulating the Transfer of securities.


 


9.4.          Right of First Refusal. In addition to the other limitations and restrictions
set forth in this Article IX, no Member shall Transfer all or any
portion of such Member’s Shares (the “Offered Shares”) unless such Member (the “Seller”)
first offers to sell the Offered Shares pursuant to the terms of this Section 9.4.


 


(a)           Limitation on Transfers. No Transfer may be made under this Section 9.4
unless the Seller has received a bona fide written offer (the “Purchase Offer”)
from a Person (the “Purchaser”) to purchase the Offered Shares for a purchase
price (the “Offer Price”) denominated and payable in United States dollars at
closing or according to specified terms, with or without interest, which offer
shall be in a writing signed by the Purchaser and shall be irrevocable for a
period ending no sooner than the Business Day following the end of the Offer
Period, as hereinafter defined.


 


(b)           Offer Notice. Prior to making any Transfer that is
subject to the terms of this Section 9.4, the Seller shall give to the
Board of Managers and each other Member a written notice (the “Offer Notice”)
that shall include a copy of the Purchase Offer and an offer (the “Firm Offer”)
to sell the Offered Shares to the Company and to the other Members (the “Offerees”)
for the Offer Price, payable according to the same terms as (or more favorable
terms than) those contained in the Purchase Offer, provided, that the
Firm Offer shall be made without regard to the requirement of any earnest money
or similar deposit required of the Purchaser prior to closing, and without
regard to any security (other than the Offered Shares) to be provided by the
Purchaser for any deferred portion of the Offer Price.


 


(c)           Offer Period. The Firm Offer shall be irrevocable for
a period (the “Offer Period”) ending at 11:59 p.m., local time at the
Company’s principal place of business, on the ninetieth (90th) day following
the day of the Offer Notice.


 


30

















 


(d)           Acceptance of Firm Offer.


 


(i)            Acceptance
by the Company.  At any time during
the first forty-five (45) days of the Offer Period, the Company may accept the
Firm Offer as to all or any portion of the Offered Shares, by giving written
notice of such acceptance to the Seller and each Offeree, which notice shall
indicate the number of the Offered Shares that the Company wishes to
purchase.  (The Company may, in the sole
and absolute discretion of the Board of Managers, assign its right of first
refusal hereunder, in whole or in part, to any Person or Persons, including,
without limitation, any Manager or any Affiliate of the Company.  All subsequent references in this Section 9.4
to the Company shall include each, if any, such assignee.)  In the event that (A) the Company timely
accepts the Firm Offer with respect to all or any portion of the Offered
Shares, and (B) one or more Offerees accept the Firm Offer, pursuant to Section 9.4(d)(ii) below,
with respect to all (if any) of the Offered Shares that the Company does not
elect to purchase, then the Company shall purchase all of the Offered Shares
that it elects to purchase, in accordance with the terms of the Firm Offer, at
a closing held pursuant to Section 9.4(e).


 


(ii)           Acceptance
by the Offerees.  If the
Company does not timely accept the Firm Offer with respect to all of the Offered
Shares, then, at any time during the last forty-five (45) days of the Offer
Period, any Offeree may accept the Firm Offer as to all or any portion of the
Offered Shares that the Company does not elect to purchase, by giving written
notice of such acceptance to the Seller, the Board of Managers and each other
Offeree, which notice shall indicate the maximum number of such Offered Shares
that such Offeree is willing to purchase. In the event that Offerees (“Accepting
Offerees”), in the aggregate, accept the Firm Offer with respect to all of the
Offered Shares that the Company does not elect to purchase, then the Firm Offer
shall be deemed to be accepted and each Accepting Offeree shall be deemed to
have accepted the Firm Offer as to that number of such Offered Shares that
corresponds to the ratio of the number of Offered Shares that such Accepting
Offeree indicated a willingness to purchase to the aggregate number of Offered
Shares that all Accepting Offerees indicated a willingness to purchase. If the
Company and one or more of the Offerees do not accept the Firm Offer as to all
of the Offered Shares during the Offer Period, the Firm Offer shall be deemed
rejected in its entirety.


 


(e)           Closing of Purchase Pursuant to
Firm Offer. In the event that the Firm Offer is accepted (by any one or more of
the Company and the Offerees), the closing of the sale of the Offered Shares to
any one or more of the Company and the Accepting Offerees shall take place
within thirty (30) days after the Firm Offer is accepted or, if later, the date
of closing set forth in the Purchase Offer. The Seller and those Persons
purchasing the Offered Shares pursuant to their acceptance of the Firm Offer
shall execute such documents and instruments as may be necessary or appropriate
to effect the sale of the Offered Shares pursuant to the terms of the Firm
Offer and this Article IX.


 


(f)            Sale Pursuant to Purchase Offer
if Firm Offer Rejected. If the Firm Offer is not accepted in the manner
hereinabove provided, the Seller may sell the Offered Shares to the Purchaser
at any time within sixty (60) days after the last day of the Offer Period, provided,
that


 


31
















 


such sale shall be
made on terms no more favorable to the Purchaser than the terms contained in
the Purchase Offer and, provided, further, that such sale
complies with other terms, conditions, and restrictions of this Agreement that
are not expressly made inapplicable to sales occurring under this Section 9.4.
In the event that the Offered Shares are not sold in strict accordance with the
terms of the preceding sentence, the Offered Shares shall again become and be
subject to all of the conditions and restrictions of this Section 9.4.


 


9.5           Prohibited Transfers.  Any purported Transfer of Shares that is not
a Permitted Transfer and to which the Board of Managers does not give its
consent shall be null and void and of no force or effect whatever; provided,
that, if the Company is required to recognize a Transfer that is not a
Permitted Transfer and that did not receive the consent of the Board of
Managers, the interest in the Company so transferred shall be strictly limited
to the transferor’s rights to allocations and distributions as provided by this
Agreement with respect to the transferred Shares, which allocations and
distributions may be applied (without limiting any other legal or equitable
rights of the Company) to satisfy any debts, obligations, or liabilities for
damages that the transferor or transferee of such Shares may have to the
Company.


 


In the case of a Transfer or attempted Transfer of Shares that is not a
Permitted Transfer and that does not receive the consent of the Board of
Managers, the parties engaging or attempting to engage in such Transfer shall
be liable to indemnify and hold harmless the Company and the Members from all
Expenses that any of such indemnified Persons may incur (including, without
limitation, incremental tax liability and attorneys’ fees and expenses) as a
result of such Transfer or attempted Transfer and efforts to enforce the
indemnity granted hereby.


 


9.6           Rights of Unadmitted Assignees.  A Person who acquires one or more Shares in a
Permitted Transfer or in any other Transfer to which the Board of Managers
consents, but who is not admitted as a substituted Member pursuant to Section 9.7
hereof, shall be entitled only to allocations and distributions with respect to
such Shares in accordance with this Agreement, and shall have no right to any
information or accounting of the affairs of the Company, shall not be entitled
to inspect the books or records of the Company, and shall not have any of the
rights of a Member under the Act or this Agreement.


 


9.7           Admission of Transferees as Members.  Subject to the other provisions of this Article IX,
a transferee of Shares may be admitted to the Company as a substituted Member
only upon satisfaction of the conditions set forth below in this Section 9.7:


 


(a)           The Board of
Managers consents to such admission, which consent may be given or withheld in
the sole and absolute discretion of the Board of Managers;


 


(b)           The
Shares with respect to which the transferee is being admitted were acquired by
means of either a Permitted Transfer or a Transfer that was not a Permitted
Transfer but which received the consent of the Board of Managers;


 


(c)           The transferee
becomes a party to this Agreement as a Member and executes such documents and
instruments as the Board of Managers may reasonably


 


32

















 


request
as necessary or appropriate to confirm such transferee as a Member in the
Company and such transferee’s agreement to be bound by the terms and conditions
hereof;


 


(d)           The
transferee pays or reimburses the Company for all reasonable legal, filing, and
publication costs that the Company incurs in connection with the admission of
the transferee as a Member with respect to the transferred Shares; and


 


(e)           If the transferee is
not an individual of legal majority, the transferee provides the Company with
evidence satisfactory to counsel for the Company of the authority of the
transferee to become a Member and to be bound by the terms and conditions of
this Agreement.


 


9.8           Distributions and Allocations in Respect of
Transferred Interests.  If any
Shares are transferred during any Allocation Year in compliance with the
provisions of this Article IX, Profits, Losses, each item thereof,
and all other items attributable to such Shares for such Allocation Year shall
be divided and allocated between the transferor and the transferee by taking
into account their varying interests during such Allocation Year in accordance
with Code Section 706(d), using any conventions permitted by law and
selected by the Board of Managers.  All
distributions on or before the date of such Transfer shall be made to the
transferor, and all distributions thereafter shall be made to the
transferee.  Solely for purposes of
making such allocations and distributions, the Company shall recognize such
Transfer not later than the end of the calendar month during which it is given
notice of such Transfer; provided, that, if the Company is given notice
of a Transfer at least ten (10) Business Days prior to the Transfer, the
Company shall recognize such Transfer as of the date of such Transfer; and, provided
further, that, if the Company does not receive a notice stating the date
such Shares were transferred, and such other information as the Board of
Managers may reasonably require, within thirty (30) days after the end of the
Allocation Year during which the Transfer occurred, then all of such items
shall be allocated, and all distributions shall be made, to the Person who,
according to the books and records of the Company, was the owner of such transferred
Shares on the last day of the Allocation Year during which the Transfer
occurred.  Neither the Company nor any
Manager shall incur any liability for making allocations and distributions in
accordance with the provisions of this Section 9.8, whether or not the
Company has knowledge of any Transfer of ownership of any Shares.


 


Article X


RETIREMENT


 


10.1         Retirement. 
A Person shall cease to be a Member upon the occurrence of any of the
following events:


 


(a)           The
Transfer of all of such Person’s Shares in the Company by means of a Permitted
Transfer or by means of a Transfer that is not a Permitted Transfer but that
receives the consent of the Board of Managers;


 


(b)           The
Bankruptcy of such Person;


 


33

















 


(c)           If
such Person is an individual, the death of such Person or the entry of an order
by a court of competent jurisdiction adjudicating such Person incompetent to
manage his person or estate;


 


(d)           If
such Person is a trust, the termination of the trust (but not the substitution
of a new trustee);


 


(e)           If
such Person is itself a limited liability company, partnership, or similar
entity, the dissolution and commencement of winding up of such limited
liability company, partnership, or similar entity;


 


(f)            If
such Person is a corporation, the filing of a certificate of its dissolution or
the equivalent under relevant state law or the administrative or judicial
dissolution of such corporation and the lapse of 90 days after notice to the
corporation of such dissolution without reinstatement;


 


(g)           If
such Person is an estate, the distribution by the fiduciary of such estate’s
entire Interest in the Company; or


 


(h)           Such
Person’s resignation in violation of this Agreement.


 


10.2         Status Upon Retirement.  In the event a Person ceases to be a Member,
pursuant to Section 10.1 hereof, without having transferred all of such
Person’s Shares in the Company, then such Person shall be treated as an
unadmitted transferee of Shares with only those rights set forth in Section 9.6
of this Agreement.  No Person who ceases
to be a Member shall be entitled to receive from the Company, solely by reason
of such Person’s Retirement, the fair value of such Person’s Shares in the
Company (or any portion thereof) as of the date of such Person’s Retirement.


 


10.3         Withdrawal. 
No Member shall have the power to withdraw from the Company by voluntary
act.  Any attempted voluntary withdrawal
by a Member shall be null and void and of no force or effect whatever.


 


Article XI


DISSOLUTION
AND WINDING UP


 


11.1         Dissolution Events.


 


(a)           Dissolution.  The Company shall dissolve and commence
winding up and liquidating upon the first to occur of any of the following (“Dissolution
Events”):


 


(i)            December 31,
2109;


 


(ii)           The
dissolution, winding up, and liquidation of the Company is approved by the
Consent of the Members;


 


34

















 


(iii)          The sale or other disposition of all
or substantially all of the Property;


 


(iv)          The occurrence of any other event that
makes carrying on the business and affairs of the Company unlawful, impossible,
or impractical;


 


(v)           Ninety
(90) days after the date on which the Company no longer has at least one
Member, unless at least one new Member is admitted to the Company within such
ninety-day period; or


 


(vi)          The
entry of a decree of judicial dissolution under Section 44 of the Act.


 


The Members hereby
agree that, notwithstanding any provision of the Act, the Company shall not
dissolve prior to the occurrence of a Dissolution Event.  Without limiting the generality of the
preceding sentence, the Company shall not dissolve upon the Retirement of any
Member if there is then at least one other Member.


 


(b)           Reconstitution. 
If it is determined, by a court of competent jurisdiction, that the
Company has dissolved prior to the occurrence of a Dissolution Event, then,
within ninety (90) days after the effective date of such determination (the “Reconstitution
Period”), all of the Members may elect to reconstitute the Company and continue
its business on the same terms and conditions set forth in this Agreement by
forming a new limited liability company on terms identical to those set forth
in this Agreement. Unless such an election is made within the Reconstitution
Period, the Company shall liquidate and wind up its affairs in accordance with Section 11.2
hereof. If such an election is made within the Reconstitution Period, then:


 


(i)            The
reconstituted limited liability company shall continue until the occurrence of
a Dissolution Event as provided in Section 11.1(a);


 


(ii)           Unless
otherwise agreed to by the Consent of the Members, the Certificate and this
Agreement shall automatically constitute the Certificate and operating
agreement of such new limited liability company. All of the assets and
liabilities of the dissolved Company shall be deemed to have been automatically
assigned, assumed, conveyed, and transferred to the new company. No bond,
collateral, assumption, or release of any Member’s or the Company’s liabilities
shall be required; provided, that the right of the Members to select
successor managers and to reconstitute and continue the Company’s business and
affairs shall not exist and may not be exercised unless the Company has
received an opinion of counsel that the exercise of the right would not result
in the loss of limited liability of any Member and neither the Company nor the
reconstituted limited liability company would cease to be treated as a
partnership for federal income tax purposes upon the exercise of such right to
continue.


 


11.2         Winding Up. 
Upon the occurrence of (i) a Dissolution Event, or (ii) the
determination by a court of competent jurisdiction that the Company has
dissolved prior to the occurrence of a Dissolution Event (unless the Company is
reconstituted pursuant to Section 11.1(b) hereof), the Company shall
continue solely for the purposes of winding up its affairs in an orderly
manner, liquidating its assets, and satisfying the claims of its creditors and
Members,


 


35

















 


and neither any Manager nor any Member shall take any
action that is inconsistent with, or not necessary to or appropriate for, the
winding up of the Company’s business and affairs, provided, that all
covenants contained in this Agreement and obligations provided for in this
Agreement shall continue to be fully binding upon the Managers and the Members
until such time as the Property has been distributed pursuant to this Section 11.2
and the Certificate has been canceled pursuant to the Act. The Board of Managers
shall be responsible for overseeing the winding up and dissolution of the
Company, which winding up and dissolution shall be completed within ninety (90)
days of the occurrence of the Dissolution Event or within ninety (90) days
after the last day on which the Company may be reconstituted pursuant to Section 11.1(b) hereof,
as the case may be. The Board of Managers shall take full account of the
Company’s liabilities and Property and shall cause the Property, or the
proceeds from the sale thereof, to the extent sufficient therefor, to be
applied and distributed, to the maximum extent permitted by law, in the
following order:


 


(a)           First, to creditors (including any
Member or Manager who is a creditor, to the extent otherwise permitted by law)
in satisfaction of all of the Company’s Debts and other liabilities (whether by
payment or the making of reasonable provision for payment thereof); and


 


(b)           The balance, if any, to the Members in proportion to the number of Shares
held by each Member; provided, however, that, if a Member’s
Capital Account shall be less than the amount that such Member would receive
pursuant to Section 4.1 hereof, then such Member shall not receive an
amount in excess of such Member’s Capital Account.


 


If any Member has a deficit balance in such Member’s Capital Account
(after giving effect to all contributions, distributions, and allocations for
all Allocation Years, including the Allocation Year during which such
liquidation occurs), such Member shall have no obligation to make any contribution
to the capital of the Company with respect to such deficit, and such deficit
shall not be considered a debt owed to the Company or to any other Person for
any purpose whatsoever.


 


In the discretion of the Board of Managers, a pro rata portion of the
distributions that would otherwise be made to the Members pursuant to this Article XI
may be:


 


(i)            Distributed to a trust established
for the benefit of the Members for the purposes of liquidating Company assets,
collecting amounts owed to the Company, and paying any contingent or unforeseen
liabilities or obligations of the Company. The assets of any such trust shall
be distributed to the Members from time to time, in the reasonable discretion
of the Board of Managers, in the same proportions as the amount distributed to
such trust by the Company would otherwise have been distributed to the Members
pursuant to this Section 11.2; or


 


(ii)           Withheld
to provide a reasonable reserve for Company liabilities (contingent or
otherwise) and to reflect the unrealized portion of any installment


 


36

















 


obligations owed to the Company, provided, that such withheld
amounts shall be distributed to the Members as soon as practicable.


 


No Member or
Manager shall receive any compensation for any services performed pursuant to
this Article XI.


 


11.3         Compliance With Certain Requirements of Regulations.   In the event the Company is liquidated
within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g) but no Dissolution Event has occurred, the Property
shall not be liquidated, the Company’s Debts and other liabilities shall not be
paid or discharged, and the Company’s affairs shall not be wound up. Instead,
solely for federal income tax purposes, the Company shall be deemed to have
contributed all of the Property and liabilities to a new limited liability
company in exchange for an interest in such new limited liability company and,
immediately thereafter, the Company shall be deemed to liquidate by
distributing interests in the new limited liability company to the Members.


 


11.4         Rights of Members.  Except as otherwise provided in this
Agreement, each Member shall look solely to the Property of the Company for the
return of such Member’s Capital Contributions and shall have no right or power
to demand or receive Property, other than cash, from the Company. If the assets
of the Company remaining after payment or discharge of the Debts or other
liabilities of the Company are insufficient to return a Member’s Capital
Contributions, such Member shall have no recourse against the Company, the
Manager, or any other Member.


 


11.5.        Termination. 
Upon completion of the distribution of the Company’s Property as
provided in this Article XI, the Company shall be terminated, and
the Board of Managers shall cause the filing of the Certificate of Cancellation
pursuant to the Act and shall take all such other actions as may be necessary
to terminate the Company.


 


11.6         Allocations During Period of Dissolution. During the period commencing on the first day of the
Fiscal Year during which a Dissolution Event occurs and ending on the date on
which all of the assets of the Company have been distributed to the Members
pursuant to Section 11.2 hereof, the Members shall continue to share
Profits, Losses, gain, loss and other items of Company income, gain, loss, or
deduction in the manner provided in Article III hereof.


 


11.7         Character of Liquidating
Distributions. All payments made in liquidation of the interest of a Member in the
Company shall be made in exchange for the interest of such Member in Property
pursuant to Code Section 736(b)(1), including the interest of such Member
in Company goodwill.


 


11.8.        Form of Liquidating
Distributions. For purposes of making distributions required by Section 11.2
hereof, the Board of Managers may determine whether to distribute all or any
portion of the Property in-kind or to sell all or any portion of the Property
and distribute the proceeds therefrom.


 


37

















 


Article XII


POWER OF
ATTORNEY


 


12.1         Managers as Attorney-In-Fact.  Each Member hereby makes, constitutes, and
appoints each Manager, severally, with full power of substitution and
resubstitution, such Member’s true and lawful attorney-in-fact for him and in
his name, place, and stead and for his use and benefit, to sign, execute,
certify, acknowledge, swear to, file, and record —


 


(a)           All certificates and other
instruments (including counterparts of this Agreement) that the Board of
Managers may deem necessary or appropriate to be filed by the Company under the
laws of the Commonwealth of Massachusetts or any other state or jurisdiction in
which the Company is doing, or intends to do, business;


 


(b)           Any and all amendments or changes to
this Agreement and the instruments described in paragraph (a), as now or
hereafter amended, that the Board of Managers may deem necessary or appropriate
to effect a change or modification of the Company in accordance with the terms
of this Agreement, including, without limitation, amendments or changes to
reflect (i) the exercise by the Board of Managers or Manager of any power
granted to the Board of Managers under this Agreement, (ii) any amendments
adopted by the Members in accordance with the terms of this Agreement, (iii) the
admission of any substituted Member, and (iv) the disposition by any
Member of any or all of his Shares;


 


(c)           A
Certificates of Cancellation and other certificates and instruments that the
Board of Managers may deem necessary or appropriate to effect the dissolution
and termination of the Company pursuant to the terms of this Agreement; and


 


(d)           Any
other instrument that is now or may hereafter be required by law to be filed on
behalf of the Company or is deemed necessary or appropriate by the Board of
Managers to carry out fully the provisions of this Agreement in accordance with
its terms.


 


Each Member
authorizes each such attorney-in-fact to take any further action that such
attorney-in-fact shall consider necessary or advisable in connection with any
of the foregoing, hereby giving each such attorney-in-fact full power and
authority to do and perform each and every act or thing whatsoever requisite or
advisable to be done in connection with the foregoing as fully as such Member
might or could do personally, and hereby ratifying and confirming all that any
such attorney-in-fact shall lawfully do or cause to be done by virtue thereof
or hereof.


 


12.2         Nature as Special Power.  The power of attorney granted pursuant to
this Article XII:


 


(a)           Is a special power of attorney coupled
with an interest and is irrevocable;


 


38

















 


(b)           May be
exercised by any such attorney-in-fact by listing the Members executing any
agreement, certificate, instrument, or other document with the single signature
of any such attorney-in-fact acting as attorney-in-fact for such Members; and


 


(c)           Shall
survive the death, disability, legal incapacity, Bankruptcy, insolvency,
dissolution, or cessation of existence of a Member and shall survive the
delivery of an assignment by a Member of the whole or a portion of his Shares, except
that, where the assignment is of all of such Member’s Shares and the
assignee, with the consent of the Board of Managers, is admitted as a
substituted Member, the power of attorney shall survive the delivery of such
assignment for the sole purpose of enabling any such attorney-in-fact to effect
such substitution.


 


Article XIII


MISCELLANEOUS


 


13.1         Notices. 
Any notice, payment, demand, or communication required or permitted to
be given by any provision of this Agreement shall be in writing and shall be
deemed to have been delivered, given, and received for all purposes (i) if
delivered personally to the Person or to an officer of the Person to whom the
same is directed, or (ii) when the same is actually received, if sent
either by registered or certified mail, postage and charges prepaid, or by
facsimile, if such facsimile is followed by a hard copy of the facsimile
communication sent promptly thereafter by registered or certified mail, postage
and charges prepaid, addressed as follows, or to such other address as such
Person may from time to time specify by notice to the Members:


 


(a)           If to the Company or
to the Board of Managers, to the Company’s address set forth in Section 1.4
hereof;


 


(b)           If
to a Member, to the address set forth on Exhibit A hereto.


 


Any such notice
shall be deemed to be delivered, given, and received for all purposes as of the
date so delivered by overnight courier.


 


13.2         Binding Effect.  Except as otherwise provided in this
Agreement, every covenant, term, and provision of this Agreement shall be
binding upon and inure to the benefit of the Members and their respective
heirs, legatees, legal representatives, successors, transferees, and assigns.


 


13.3         Headings. 
Section and other headings contained in this Agreement are for
reference purposes only and are not intended to describe, interpret, define, or
limit the scope, extent, or intent of this Agreement or any provision hereof.


 


13.4         Severability.  Every provision of this Agreement is intended
to be severable.  If any term or
provision hereof is illegal or invalid for any reason whatsoever, such
illegality or invalidity shall not affect the validity or legality of the
remainder of this Agreement.


 


39

















 


13.5         Further Action.  Each Member, upon the request of the Board of
Managers, agrees to perform all further acts and execute, acknowledge, and
deliver any documents that may be reasonably necessary, appropriate, or
desirable to carry out the provisions of this Agreement.


 


13.6         Variation of Pronouns.  All pronouns and any variations thereof shall
be deemed to refer to masculine, feminine, or neuter, singular or plural, as
the identity of the Person or Persons may require.


 


13.7         Governing Law.  The laws of the Commonwealth of Massachusetts
shall govern the validity of this Agreement, the construction of its terms, and
the interpretation of the rights and duties of the Members.


 


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


 


13.9         Legends. If any Shares in the Company are
represented by certificates or instruments, such certificates or instruments
shall contain any legends required by law and reasonably required by the Board
of Managers.


 


13.10       Counterpart Execution.  This Agreement may be executed in any number
of counterparts with the same effect as if all of the Members had signed the
same document.  All counterparts shall be
construed together and shall constitute one agreement.


 


IN WITNESS WHEREOF, the parties have entered into this
Limited Liability Company Operating Agreement as of the Effective Date.


 


	
   

  	
  MEMBERS:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Harold Brown

  



 


[SIGNATURES CONTINUED ON
FOLLOWING PAGE]


 


40

















 


	
   

  	
  NERA 1994
  Irrevocable Trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Sally E.
  Michael, Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Robert Somma,
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Harold Brown
  1996 Irrevocable Trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Sally E.
  Michael, Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Robert Somma,
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Harold Brown
  1997 Irrevocable Trust

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Sally E.
  Michael, Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Robert Somma,
  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Maurec, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Harold Brown,
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MANAGER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Harold Brown

  



 


41

















 


Exhibit A


To


Limited Liability Company Operating
Agreement


Of


HBC Holdings, LLC


 


(As of April 13, 2009)


 


	
  Name and Address

  	
   

  	
  Capital Contributions

  	
   

  	
  Number of

  Shares

  
	
  Robert Somma and Sally E. Michael, as Trustees of the Harold Brown 1997
  Irrevocable Trust

  c/o The Hamilton Company, Inc.

  39 Brighton Avenue

  Boston, MA 02134

  	
   

  	
   

  	
   

  	
  35.7189

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Harold Brown
 c/o The Hamilton Company, Inc.

  39 Brighton Avenue

  Boston, MA 02134

  	
   

  	
   

  	
   

  	
  28.1289

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Robert Somma and Sally E. Michael, as Trustees of the Harold Brown 1996
  Irrevocable Trust

  c/o The Hamilton Company, Inc.

  39 Brighton Avenue

  Boston, MA 02134

  	
   

  	
   

  	
   

  	
  22.5146

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Robert Somma and Sally E. Michael, as Trustees of the NERA 1994
  Irrevocable Trust

  c/o The Hamilton Company, Inc. 39 Brighton
  Avenue Boston, MA 02134

  	
   

  	
   

  	
   

  	
  10.0147

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Robert Somma and Sally E. Michael, as Trustees of the Pruitt Oliver
  1994 Irrevocable Trust

  	
   

  	
   

  	
   

  	
  0.9799

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Maurec, Inc.
 c/o The Hamilton Company, Inc.

  39 Brighton Avenue

  Boston, MA 02134

  	
   

  	
   

  	
   

  	
  2.6430

  



 


42