**Exhibit 10.3**

 

**HAMILTONPARK TOWERS, LLC**

 

**LIMITEDLIABILITY COMPANY AGREEMENT**

 

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

 

WHEREAS, the LLC has beenformed as a limited liability company under the Delaware Limited LiabilityCompany Act, 6 Del. C. § 18-01 *et seq.*(asamended from time to time, * *the “Act”) by the filing on thedate hereof of a Certificate of Formation (the “Certificate”) with the officeof the Secretary of State of the State of Delaware; and

 

WHEREAS, the parties heretowish to set out fully their respective rights, obligations and duties withrespect to the LLC and its business, management and operations.

 

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

 

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

 

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

 

3.             LLCAddress.  The address of theprincipal office of the LLC is c/o The Hamilton Company, Inc., 39 BrightonAvenue, Boston, Massachusetts 02134.

 

4.             RegisteredOffice and Registered Agent.  Theregistered office of the LLC in the State

 

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

 

5.             Member.  The Member was admitted to the LLC as memberof the LLC upon its execution of counterpart signature page to thisAgreement.  The name and address of thesole Member of the LLC is as follows:

 

HPT Associates, LLC

c/o The Hamilton Company, Inc.

39 Brighton Avenue

Boston, Massachusetts 02134

 

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

 

7.             Management.

 

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

 

7.02         Management of the LLC.  Subject to the provisions of this Agreement,the overall management and control of the business and affairs of the LLC shallbe vested in the Managers.  Any Managermay delegate his, her or its authority to another Manager as to any particularmatter, or as to all matters for a specified period of time by a writing dulyexecuted by such delegating Manager.

 

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

 

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

 

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

 

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

 

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

 

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

 

7.04         Binding the LLC. The signature of a Manager on anyagreement, contract, instrument or other document shall be sufficient to bindthe LLC in respect thereof, and conclusively evidence the authority of suchManager and the LLC with respect thereto, and no third party need look to anyother evidence or require the joinder or consent of any other party.  The LLC, and the Member, or any Manager onbehalf of the LLC, may enter into and perform the Loan Documents and alldocuments, agreements, certificates, or financing statements contemplatedthereby or related thereto, all without any further act, vote or approval ofany Member, Manager or other Person notwithstanding any other provision of thisAgreement, the Act or applicable law, rule or regulation.  The foregoing authorization shall not bedeemed a restriction on the powers of the Member or any Manager to enter intoother agreements on behalf of the LLC

 

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

 

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

 

7.07         Exculpation and Indemnification; Fiduciary Duty.

 

(a)                                  Neitherthe Member nor the Managers, nor any of their respective affiliates, shall haveany liability to the LLC or to each other for any loss suffered by the LLC thatarises out of any action or inaction of the Member, the Managers or theiraffiliates, if such course of conduct did not constitute the willful misconductof the Member, the Managers or any such affiliate.

 

(b)                                 Tothe fullest extent permitted by law, the Member, the Managers and theirrespective Affiliates shall be indemnified by the LLC against any and alllosses, judgments, liabilities, expenses (including attorneys’ fees) andamounts paid in settlement of any claims sustained by it with respect to anyauthorized actions taken by the Member, the Managers or any such affiliate onbehalf of the LLC.   Any indemnificationto be provided hereunder shall be provided even if the person to be indemnifiedis no longer a Member, Managers or an affiliate of a Member or Manager.  Any indemnity under this Section 7.07shall be paid from, and only to the extent of, LLC assets, and

 

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neither the Member nor the Managersor any of their respective affiliates shall have any personal liability onaccount thereof.

 

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

 

8.             Relianceby Third Parties.  Any person orentity dealing with the LLC may rely upon a certificate signed by the Manageras to:

 

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

 

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

 

9.             Dissolutionand Special Member.

 

9.01         Existence.

 

(a)                                  The LLC shall bedissolved, and its affairs shall be wound up upon the first to occur of thefollowing: (i) the termination of the legal existence of the lastremaining member of the LLC or the occurrence of any other event whichterminates the continued membership of the last remaining member of the LLC inthe LLC unless the LLC is continued without dissolution in a manner permittedby this Agreement or the Act or (ii) the entry of a decree of judicialdissolution under Section 18-802 of the Act.  Upon the occurrence of any event that causesthe last remaining member of the LLC to cease to be a member of the LLC or thatcauses the Member to cease to be a member of the LLC (other than (i) uponan assignment by the Member of all of its limited liability company interest inthe LLC and the admission of the transferee pursuant to Section 14,or (ii) the resignation of the Member and the admission of an additionalmember of the LLC pursuant to Section 14), to the fullest extentpermitted by law, the personal representative of such member is herebyauthorized to, and shall, within 90 days after the occurrence of the event thatterminated the continued membership of such member in the LLC, agree in writing(i) to continue the LLC and (ii) to the admission of the personalrepresentative or its nominee or designee, as the case may be, as a substitutemember of the LLC, effective as of the occurrence of the event that terminatedthe continued membership of the last remaining member of the LLC or the Memberin the LLC.

 

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(b)                                 Notwithstanding any otherprovision of this Agreement, the Bankruptcy of the Member or a Special Membershall not cause the Member or Special Member, respectively, to cease to be amember of the LLC and upon the occurrence of such an event, the LLC shallcontinue without dissolution.

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## ***(c)***                                  Inthe event of dissolution, the LLC shall conduct only such activities as arenecessary to wind up its affairs (including the sale of the assets of the LLCin an orderly manner), and the assets of the LLC shall be applied in themanner, and in the order of priority, set forth in Section 18-804 of theAct.

 

(d)                                 TheLLC shall terminate when (i) all of the assets of the LLC, after paymentof or due provision for all debts, liabilities and obligations of the LLC shallhave been distributed to the Member in the manner provided for in thisAgreement and (ii) the Certificate of Formation shall have been canceledin the manner required by the Act.

 

9.02         Intentionally Omitted.

 

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

 

The Special Member maynot resign from the LLC or transfer its rights as Special Member unless asuccessor Special Member has been admitted to the LLC as Special Member byexecuting a counterpart to this Agreement; provided, however, the SpecialMember shall automatically cease to be a member of the LLC upon the admissionto the LLC of a Substitute Member.  TheSpecial Member shall be a member of the LLC that has no interest in theprofits, losses and capital of the LLC and has no right to receive anydistributions of LLC assets.  Pursuant toSection 18-301 of the Act, the Special Member shall not be required tomake any capital contributions to the LLC and shall not receive a limitedliability company interest in the LLC.

 

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

 

## ***For purposes of this Agreement,the Special Member shall be a member of the LLC that becomes a member inaccordance with this Article 9 and shall only have the rights andduties***

 

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## ***expressly set forth in this Agreement. In order to implement the admission to the LLC of the Special Member,the Special Members have executed a counterpart to this Agreement.  Prior to its admission to the LLC as SpecialMember, neither Special Member shall be a member of the LLC or have any interest(economic or otherwise) in the LLC (other than as an Independent Manager).  The person identitified on the signature page asthe Independent Manager is hereby designated to act as the initial SpecialMember.  Notwithstanding any otherprovision of this Agreement, the Bankruptcy (as hereinafter defined) of theMember or Special Member shall not cause the Member or Special Member to ceaseto be a member of the LLC and upon the occurrence of any such an event, the LLCshall be continued without dissolution. Notwithstanding anything to the contrary contained in this Agreement,each of the Member and Special Member waives any right it might have to agreein writing to dissolve the LLC upon the Bankruptcy of the Member or SpecialMember, or the occurrence of an event that causes Member or Special Member tocease to be a member of the LLC.  As usedherein, “Bankruptcy” means, with respect to any person or entity, (a) ifsuch person or entity: (i) makes an assignment for the benefit ofcreditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudgedbankrupt or insolvent, or has entered against it an order for relief, in anybankruptcy or insolvency proceedings, (iv) files a petition or answerseeking for itself any reorganization, arrangement, composition, readjustment,liquidation or similar relief under any statute, law or regulation, (v) filesan answer or other pleading admitting or failing to contest the materialallegations of a petition filed against it in any proceeding of this nature, (vi) seeks,consents to or acquiesces in the appointment of a trustee, receiver orliquidator of such person or entity or of all or any substantial part of itsproperties, or (b) one hundred and twenty (120) days after thecommencement of any proceeding against such person or entity seekingreorganization, arrangement, composition, readjustment, liquidation or similarrelief under any statute, law or regulation, if the proceeding has not beendismissed, or if within ninety (90) days after the appointment without suchperson’s or entity’s consent or acquiescence of a trustee, receiver orliquidator of such person or entity or of all or any substantial part of itsproperties, the appointment is not vacated or stayed, or within ninety (90)days after the expiration of any such stay, the appointment is not vacated.  The foregoing definition of “Bankruptcy” isintended to replace and shall supersede and replace the definition of “Bankruptcy”set forth in Sections 18-101(1) and 18-304 of the Act.***

 

10.           CapitalContributions.   The Member has madean initial capital contribution to the LLC in the amount set forth on ScheduleA.  The Member may make, but shallnot be required to make, any additional capital contributions to the LLC.

 

11.           AdditionalContributions.  The Member may make,but shall not be required to make, any additional capital contributions to theLLC.

 

12.           Allocationof Profits and Losses.  All items ofLLC income, gain, profit, loss and deduction shall be allocated to the Member.

 

13.           Distributions.  Distributions shall be made to the Member atthe times and in the aggregate amounts determined by the Manager.  Notwithstanding any provision to the contrarycontained in this Agreement, the LLC shall not be required to make adistribution to the Member on account of its interest in the LLC if suchdistribution would violate Section 18-607 of the Act or any otherapplicable law.

 

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14.           Transfersand Assignments.  The Member mayassign its limited liability company interest in the LLC to any person orentity, which person or entity shall become a Member upon the execution acounterpart of this Agreement.  TheMember may conditionally or collaterally assign its limited liability companyinterest in the LLC to any lender of funds to the LLC and/or the Member whichassignee shall become a Member upon activation of such assignee’s rights underthe instrument of assignment in accordance therewith and in complianceherewith.

 

If the Member transfers all ofits limited liability company interest in the LLC pursuant to this Section 14,the transferee shall be admitted to the LLC as a member of the LLC upon itsexecution of an instrument signifying its agreement to be bound by the termsand conditions of this Agreement, which instrument may be a counterpartsignature page to this Agreement. Such admission shall be deemed effective immediately prior to thetransfer and, immediately following such admission, the transferor Member shallcease to be a member of the LLC. Notwithstanding anything in this Agreement to the contrary, anysuccessor to the Member by merger or consolidation in compliance with the LoanDocuments shall, without further act, be the Member hereunder, and such mergeror consolidation shall not constitute an assignment for purposes of thisAgreement and the LLC shall continue without dissolution.

 

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

 

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

 

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

 

18.           GoverningLaw.  This Agreement shall begoverned by, and construed under, the laws of the State of Delaware, all rightsand remedies being governed by said laws (without regard to conflict of lawprinciples).

 

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

 

The LLC:

 

### **(a)           shall not engage inany business or activity, other than the ownership, operation and maintenanceof the Property and activities incidental thereto;**

 

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### **(b)           shall not acquire,own, hold, lease, operate, manage, maintain, develop or improve any assetsother than the Property and such Personalty as may be necessary for theoperation of the Property and shall conduct and operate its business aspresently conducted and operated;**

### ** **

### **(c)           shall preserve itsexistence as an entity duly formed, validly existing and in good standing (ifapplicable) under the laws of the jurisdiction of its formation or organizationand shall do all things necessary to observe organizational formalities;**

### ** **

### **(d)           shall not merge orconsolidate with any other Person;**

### ** **

### **(e)           to the fullest extentpermitted by law, shall not take any action to dissolve, wind-up, terminate orliquidate in whole or in part; to sell, transfer or otherwise dispose of all orsubstantially all of its assets; to change its legal structure; transfer orpermit the direct or indirect transfer of any limited liability company orother equity interests, as applicable, other than Transfers permitted under theLoan Documents; issue additional limited liability company or other equityinterests, as applicable; or seek to accomplish any of the foregoing;**

### ** **

### **(f)            the LLC, and anyother Person on behalf of the LLC, shall not, without the prior written consentof the Member and all of the Managers, including the Independent Manager (asdefined below):  (i) file anyinsolvency, or reorganization case or proceeding, to institute proceedings tohave the LLC or the Member be adjudicated bankrupt or insolvent, (ii) instituteproceedings under any applicable insolvency law, (iii) seek any reliefunder any law relating to relief from debts or the protection of debtors, (iv) consentto the filing or institution of bankruptcy or insolvency proceedings againstthe LLC or the Member, (v) file a petition seeking, or consent to,reorganization or relief with respect to the LLC or the Member under anyapplicable federal or state law relating to bankruptcy or insolvency, (vi) seekor consent to the appointment of a receiver, liquidator, assignee, trustee,sequestrator, custodian, or any similar official for the LLC or a substantialpart of its property or for the Member or a substantial part of its property, (vii) makeany assignment for the benefit of creditors of the LLC the Member, (viii) admitin writing the LLC’s or the Member’s inability to pay its debts generally asthey become due, (ix) take any other action which, under the terms ofcertificate of formation, limited liability company agreement or any otherorganizational document of the LLC or the Member, requires a consent of all ofthe Members or Managers of the LLC unless at the time of such action thereshall be at least one (1) Independent Manager (as defined below) thenserving in such capacity, or (x) take action in furtherance of any of theforegoing;**

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### **(g)           shall not amend orrestate its organizational documents if such change would modify therequirements set forth in this Section 19;**

 

### **(h)           shall not own any subsidiary or makeany investment in, any other Person;**

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### **(i)            shall not commingle its assets withthe assets of any other Person and shall hold all of its assets in its ownname;**

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

 

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

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### **(k)           shall maintain its records, books ofaccount, bank accounts, financial statements, accounting records and otherentity documents separate and apart from those of any other Person and shallnot list its assets as assets on the financial statement of any other Person;provided, however, that the LLC’s assets may be included in a consolidatedfinancial statement of its Affiliate provided that (i) appropriatenotation shall be made on such consolidated financial statements to indicatethe separateness of the LLC from such Affiliate and to indicate that the LLC’sassets and credit are not available to satisfy the debts and other obligationsof such Affiliate or any other Person and (ii) such assets shall also belisted on the LLC’s own separate balance sheet;**

 

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

 

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

 

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

 

(o)           shall not make or permit to remainoutstanding any loans or advances to any other Person except for thoseinvestments permitted under the Loan Documents and shall not buy or holdevidence of indebtedness issued by any other Person (other than cash orinvestment-grade securities);

 

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

 

(q)           shall hold itself out to the publicas a legal entity separate and distinct from any other Person and conduct itsbusiness solely in its own name, shall correct any known misunderstandingregarding its separate identity and shall not identify itself or any of its Affiliatesas a division or department of any other Person;

 

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

 

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

 

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

 

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

 

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

 

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

 

(w)          The LLC shall (i) have two (2) specialmembers who are natural persons and (ii) have at least one (1) IndependentManager and (iii) otherwise comply with all Rating Agencies criteria forsingle member limited liability companies (including, without limitation, thedelivery of Delaware single member limited liability company opinionsacceptable in all respects to Lender and to the Rating Agencies).

 

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

 

Failure of the LLC, or the Member or Manager on behalf of the LLC, tocomply with any of the foregoing covenants or any other covenants contained inthis Agreement shall not affect the status of the LLC as a separate legalentity or the limited liability of the Member or the Managers.

 

“Independent Manager” means a naturalperson who is not at the time of initial appointment as a manager or at anytime while serving as a manager of the LLC or the Member and has not been atany time during the five (5) years preceding such initial appointment (i) astockholder, director (with the exception of serving as an Independent Managerof the LLC or the Member), officer, trustee, employee, partner, member,attorney or counsel of the LLC or the Member, or any Affiliate of either ofthem, (ii) a creditor, customer, supplier, or other Person who derives anyof its purchases or revenues from its activities with the LLC or the Member orany Affiliate of either of them, (iii) a Person Controlling or undercommon Control with any Person excluded from serving as Independent Managerunder (i) or (ii) or (iv) a member of the immediate family byblood or marriage of any Person excluded from serving as Independent Managerunder (i)

 

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

 

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

 

The Managershereby appoint Melvin Herman as the initial Independent Manager and Melvin Hermanhas executed counterparts to this Agreement as evidence of his acceptance ofsuch appointment.  All right, power andauthority of the Independent Manager shall be limited to the extent necessaryto exercise those rights and perform those duties specifically set forth inParagraphs 9.03 and 19(f) of this Agreement.  An Independent Manager (a) shall not bea member of the LLC for any purposes whatsoever except under the circumstancesdescribed in Paragraph 9.03 above, (b) shall take no action for or on behalfof the LLC, or have any rights with respect to the LLC (including voting orconsent rights), other than those described in this Paragraph 19(f) above,(c) shall have no liability to the LLC or the Members other than foractual damages resulting from a breach of this Paragraph 19 or from negligenceor bad faith, (d) shall cease to be Independent Manager automatically uponthe earlier to occur of (i) the time at which this Paragraph 19 shallcease to apply and (ii) the date on which such Independent Managerreceives written notice from the Manager discharging such Independent Managerand appointing a successor Independent Manager and (e) shall be entitledto compensation for serving as the Independent Manager under this Agreement andindemnification for serving as the Independent Managers to the extent soprovided in writing.   The IndependentManager shall not enter into a voting agreement with any creditor of theLLC.  The Independent Manager shall be a “managerwithin the meaning of Section 18-101(10) of the Act.

 

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

 

20.           Definitions

 

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

 

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

 

“Manager” means the person selected to be the manager of the LLCfrom time to time by the Member.  AManager is hereby designated as a “manager” of the LLC within the meaning of Section 18-101(10) ofthe Act.  The term “Manager” shall notinclude any Independent Manager.

 

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

 

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

 

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

 

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

 

*[PAGE ENDSHERE; SIGNATURES FOLLOW]*

 

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

 
|   | **MEMBER**                                 |
|--------|--------------------------------------------|
|   |                                       |
|   | HPT ASSOCIATES, LLC, a Delaware limited    |
|   | liability company                          |
|   |                                       |
|   | By:                                        | NewReal, Inc., its Manager |
|   |                                       |   |
|   |                                       | By: |   |   |
|   |                                       |   | Ronald Brown, President |
|   |                                       |
|   | By:                                        |   |   |
|   |                                       | Harold Brown, Manager |
|   |                                       |   |
|   |                                       |
|   | **MANAGERS**                               |
|   |                                       |
|   |                                       |   |
|   | Harold Brown                               |
|   |                                       |
|   | NEWREAL, INC., a Massachusetts corporation |
|   |                                       |
|   | By:                                        | ** ** | ** ** |
|   |                                       | Ronald Brown, President |
|   |                                       |
|   |                                       |
|   | **INDEPENDENT MANAGER**                    |
|   |                                       |
|   |                                       |   |
|   | Melvin Herman                              |
|   |                                       |
|   |                                       |
|   | **SPECIAL MEMBERS**                        |
|   |                                       |
|   |                                       |   |
|   | Melvin Herman                              |
|   |                                       |
|   |                                       |   |
|   | Sally E. Michael                           |
|        |                                            |  |  |  |  |  |  |  |  |

 

13

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**SCHEDULE A**

 

**HamiltonPark Towers, LLC**

 

**InitialCapital Contributions and Percentage Interests**

 

As of                     , 2009

 
| **Member**           | ** ** | **Amount of Initial  Capital Contribution** | ** ** | **Percentage Interest** | ** ** |
|----------------------|------------|---------------------------------------------|------------|-------------------------|------------|
| HPT  Associates, LLC |       | $                                           |       |                    | 100        | % |
|                      |            |                                             |            |                         |            |  |

 

Independent Manager:

Melvin Herman

 

Special Members:

Melvin Herman

Sally E. Michaels

 

14

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