**Exhibit 10.2**

 

**LIMITED LIABILITY COMPANYOPERATING AGREEMENT**

**OF**

#### **HBC HOLDINGS, LLC**

#### ** **

This **Limited Liability CompanyOperating Agreement** is entered into, and shall be effective, as ofthe 13th day of April, 2009 (the “Effective Date”), by andamong (i) the Persons who are identified as the initialMembers of the Company on Exhibit A attached hereto and who haveexecuted this Agreement as of the Effective Date, (ii) each other Personwho, at any time after the Effective Date, (*x*) isadmitted to the Company as a Member in accordance with the terms of thisAgreement, (*y*) is identified as a Member on Exhibit Ato this Agreement (as the same shall be amended from time to time after theEffective Date by the Manager), and (*z*) executesa counterpart of this Agreement as a Member, and (iii) Harold Brown, asthe initial Manager, pursuant to the provisions of the Massachusetts Limited Liability Company Act, on thefollowing terms and conditions:

 

#### **Article I**

#### **THE COMPANY**

#### ** **

1.1           **Formation**. The Company was formed as a Massachusetts limited liability company onthe Effective Date.  The Members herebyagree to continue the Company as a limited liability company under and pursuantto the provisions of the Act and upon the terms and conditions set forth inthis Agreement.  Simultaneously with theformation of the Company, Harold Brown was admitted to the Company as itsinitial Member.  The rights andliabilities 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 businessof the Company shall be conducted in such name. The Board of Managers may change the name of the Company upon at leastten (10) Business Days notice to the Members.

 

1.3           **Purpose; Powers**.

 

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

 

(b)           The Company shallhave the power to do any and all acts necessary, appropriate, proper,advisable, incidental, or convenient to or in furtherance of the purposes ofthe Company set forth in Section 1.3(a) and shall have, withoutlimitation, any and all powers that may be exercised on behalf of the Companyby the Board of Managers pursuant to Article V hereof.

 

----

 

1.4           **PrincipalPlace of Business; Registered Office**.  The principal place of business of theCompany shall be at 39 Brighton Avenue, Allston, Massachusetts 02134.  The Board of Managers may change theprincipal place of business of the Company to any other place within or withoutthe Commonwealth of Massachusetts upon at least ten (10) Business Daysnotice to the Members.  The registeredoffice of the Company in the Commonwealth of Massachusetts is initially locatedat 39 Brighton Avenue, Allston, Massachusetts 02134.

 

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

 

1.6           **Filings;Agent for Service of Process**.

 

(a)           TheCertificate was filed in the office of the Secretary of State of theCommonwealth of Massachusetts, in accordance with the Act, on the EffectiveDate. The Board of Managers shall take any and all other actions reasonablynecessary to perfect and maintain the status of the Company as a limited liabilitycompany under the laws of the Commonwealth of Massachusetts, including thepreparation and filing of such amendments to the Certificate and such otherassumed name certificates, documents, instruments, and publications as may fromtime to time be required by law.

 

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

 

(c)           The registered agentfor service of process on the Company in the Commonwealth of Massachusettsshall be Sally E. Michael, Esquire, Dionne & Gass LLP, 131 DartmouthStreet, Suite 501, Boston, Massachusetts 02116, or any successor asappointed by the Board of Managers in accordance with the Act.

 

(d)           Upon the dissolutionand completion of the winding up and liquidation of the Company in accordancewith Article XI hereof, the Board of Managers shallpromptly execute and cause to be filed certificates of cancellation ordissolution in accordance with the Act and the laws of any other state orjurisdiction in which the Company has filed certificates.

 

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

 

2

----

 

1.8           **Payments of Individual Obligations**.  The Company’s credit and assets shall be usedsolely for the benefit of the Company, and no asset of the Company shall betransferred or encumbered for or in payment of any individual obligation of anyMember.

 

1.9           **Independent Activities; Transactions With Affiliates**.

 

(a)           Each Manager shallbe required to devote such time to the business and affairs of the Company asmay 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 anycapacity that such Manager may deem appropriate in such Manager’s discretion.

 

(b)           Insofar as permittedby applicable law neither this Agreement nor any activity undertaken pursuanthereto shall prevent any Member or Manager, or any Affiliate of any Member orManager, from engaging in whatever activities such Person may choose, whetherthe same are competitive with the Company or otherwise, and any such activitiesmay be undertaken without having or incurring any obligation to offer anyinterest in such activities to the Company or any Member.  Neither this Agreement nor any activityundertaken pursuant hereto shall require any Member or Manager to permit theCompany or any Member, Manager, or Affiliate of any Member or Manager, toparticipate in any such activities, and as a material part of the considerationfor 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 thatcertain conflicts of interest may thus arise and hereby agree that the specificrights with respect to the Members’ and their Affiliates’ freedom of actionprovided in this Section 1.9(b) are sufficient to protect theirrespective interests in relation to such possible conflicts and shall be inlieu of all other possible limitations that might otherwise be implied in fact,at law, or in equity.

 

(c)           To the extentpermitted by applicable law and except as otherwise provided in this Agreement,the Board of Managers is hereby authorized, in furtherance of the purposes ofthe 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 suchPerson’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, orother transaction shall be made on terms and conditions that are no lessfavorable to the Company than if such purchase, sale, or other transaction hadbeen 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**” hasthe meaning set forth in Section 9.4(d)(ii) hereof.

 

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

 

3

----

 

“**Adjusted CapitalAccount Deficit**” means, with respect to any Member, the deficitbalance, if any, in such Member’s Capital Account as of the end of the relevantAllocation Year, after giving effect to the following adjustments:

 

(i)            There shall be credited to suchCapital Account any amounts that such Member is deemed to be obligated torestore pursuant to the penultimate sentences in Sections 1.704-2(g)(1) and1.704-2(i)(5) of the Regulations; and

 

(ii)           There shall be debited to suchCapital 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 foregoingdefinition of Adjusted Capital Account Deficit is intended to comply with theprovisions of Section 1.704-1(b)(2)(ii)(*d*) ofthe Regulations and shall be interpreted consistently therewith.

 

“**Affiliate**” means, withrespect 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) anyPerson who is an officer, director, general partner, member, manager, ortrustee of any Person described in clause (i) or clause (ii) of thissentence.  For purposes of thisdefinition, the terms “controlling,” “controlled by,” and “under common controlwith” shall mean the possession, direct or indirect, of the power to direct orcause the direction of the management and policies of a Person, whether throughthe ownership of voting securities, by contract or otherwise, or the power toelect at least fifty percent (50%) of the directors, managers, generalpartners, or Persons exercising similar authority with respect to such Person.

 

“**Agreement**” means thisLimited Liability Company Operating Agreement, including each exhibit andschedule 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 thecontext otherwise requires.  Allreferences in this Agreement to “Section” or “Sections” are to a section orsections of this Agreement unless otherwise specified.

 

“**Allocation Year**” means (i) theperiod commencing on the Effective Date and ending on December 31, 2009, (ii) anysubsequent 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) forwhich the Company is required to allocate Profits, Losses, and other items ofCompany income, gain, loss, or deduction pursuant to Article III.

 

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

 

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

 

4

----

 

“**Business Day**” means anyday that is not a Saturday, Sunday, or any other day on which commercial banksin Boston, Massachusetts are authorized or obligated by law or executive orderto be closed.

 

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

 

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

 

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

 

(iii)          Inthe event that Shares are transferred in accordance with the terms of thisAgreement, the transferee shall succeed to the Capital Account of thetransferor to the extent that such Capital Account relates to the transferredShares.

 

(iv)          Indetermining 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) andany other applicable provisions of the Code and Regulations.

 

The foregoingprovisions and the other provisions of this Agreement relating to themaintenance 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 suchRegulations.  In the event the Board ofManagers shall determine that it is prudent to modify the manner in which theCapital Accounts, or any debits or credits thereto, are computed in order tocomply with such Regulations, the Board of Managers may make such modification;provided, that it is not likely to have a material effect on the amountsdistributable to any Member pursuant to Article XI upon thedissolution of the Company.  The Board ofManagers shall also (i) make any adjustments that are necessary orappropriate to maintain equality between the Capital Accounts of the Membersand the amount of capital reflected on the Company’s balance sheet, as computedfor book purposes, in accordance with Regulations Section 1.704-1(b)(2)(iv)(*q*), and (ii) make any appropriatemodifications in the event unanticipated events might otherwise cause thisAgreement not to comply with Regulations Section 1.704-1(b).

 

5

----

 

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

 

“**Cash Equivalents**” means cash and any of thefollowing: (i) readily marketable direct obligations of the Government ofthe United States or any agency or instrumentality thereof, or obligationsunconditionally guaranteed by the full faith and credit of the Government ofthe United States, and (ii) insured certificates of deposit of, or time ordemand deposits with, any commercial bank that is a member of the FederalReserve System; provided, however, that all instruments describedin this definition other than cash shall have a maturity of not longer thanninety (90) days.

 

“**Certificate**” means theCertificate of Organization filed with the Secretary of State of theCommonwealth of Massachusetts pursuant to the Act to form the Company, asoriginally executed and as amended, modified, supplemented, or restated fromtime to time, as the context may require.

 

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

 

“**Code**” means the InternalRevenue Code of 1986, as amended from time to time (or any correspondingprovisions of succeeding law).

 

“**Company**” means thelimited liability company formed pursuant to the Certificate and this Agreementand the limited liability company continuing the business of the Company in theevent of the dissolution of the Company as herein provided.

 

“**Company Minimum Gain**” hasthe same meaning as is given to the term “partnership minimum gain” in Sections1.704-2(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 orapproval, the written consent or approval of Members holding, at the time ofsuch consent or approval, more than fifty percent (50%) of the issued andoutstanding Shares.

 

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

 

6

----

 

“**Depreciation**” means, foreach Allocation Year, an amount equal to the depreciation, amortization, orother cost recovery deduction allowable for federal income tax purposes withrespect to an asset for such Allocation Year, exceptthat if theGross Asset Value of an asset differs from its adjusted basis for federalincome tax purposes at the beginning of such Allocation Year, Depreciationshall be an amount that bears the same ratio to such beginning Gross AssetValue as the federal income tax depreciation, amortization, or other costrecovery deduction for such Allocation Year bears to such beginning adjustedtax basis; provided, however, that if the adjusted basis forfederal income tax purposes of an asset at the beginning of such AllocationYear is zero, Depreciation shall be determined with reference to such beginningGross Asset Value using any reasonable method selected by the Board ofManagers.

 

“**Dissolution Event**” hasthe meaning set forth in Section 11.1 hereof.

 

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

 

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

 

“**Environmental Law**” meansany federal, state, or local statute, law, code, ordinance, rule, regulation,guideline, policy, or rule of common law, now or hereafter in effect andin each case as amended, and any judicial or administrative interpretationthereof (including any judicial or administrative order, consent decree, orjudgment), relating to the environment, health, safety, or HazardousSubstances.

 

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

 

“**Expenses**” means any andall judgments, damages, or penalties with respect to, or amounts paid insettlement of, claims (including, but not limited to, claims allegingnegligence, strict or absolute liability, liability in tort, and liabilitiesarising out of violations of laws or regulatory requirements of any kind),actions, or suits; and any and all taxes (including, without limitation, taxeson 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 meaningset forth in Section 9.2 hereof.

 

“**Firm Offer**” has themeaning set forth in Section 9.4(b) hereof.

 

7

----

 

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

 

“**Fiscal Year**” means (i) theperiod commencing on the Effective Date and ending on December 31, 2009,and (ii) any subsequent 12-month period commencing on January 1 andending on the earlier to occur of (A) the following December 31, or (B) thedate on which all of the Property is distributed pursuant to Section 11.2and 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 taxpurposes, except as follows:

 

(i)            The initial GrossAsset Value of any asset contributed by a Member to the Company shall be thegross fair market value of such asset, as determined by the contributing Memberand the Board of Managers.

 

(ii)           TheGross Asset Values of all Company assets shall be adjusted to equal theirrespective gross fair market values (taking Code Section 7701(g) intoaccount), as determined by the Board of Managers, as of the followingtimes:  (A) the acquisition of anadditional interest in the Company by any existing Member in exchange for morethan a *de minimis* CapitalContribution or the performance of substantial services for the Company; (B) theacquisition of an interest in the Company by any new Member in exchange formore than a *de minimis* CapitalContribution or the performance of substantial services for the Company; (C) thedistribution by the Company to any Member of more than a *de minimis*amount of Property asconsideration for an interest in the Company; and (D) the liquidation ofthe Company within the meaning of Regulations Section 1.704-1(b)(2)(ii)(*g*); provided, that an adjustmentdescribed in clause (A), clause (B), or clause (C) of this subparagraph (ii) shallbe made only if the Board of Managers reasonably determines that suchadjustment is necessary to reflect the relative economic interests of theMembers in the Company.

 

(iii)          TheGross Asset Value of any Company asset distributed to any Member (other than asconsideration for an interest in the Company) shall be adjusted to equal thegross fair market value (taking Code Section 7701(g) into account) ofsuch asset on the date of distribution as determined by the distributee and theBoard of Managers.

 

(iv)          TheGross Asset Values of Company assets shall be increased (or decreased) toreflect any adjustments to the adjusted basis of such assets pursuant to Code Section 734(b) orCode Section 743(b), but only to the extent that such adjustments are takeninto 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

 

8

----

 

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

 

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

 

“**Hazardous Substances**”means (i) any chemicals, materials, or substances defined or included inthe definition of “hazardous substances,” “hazardous materials,” “hazardouswastes,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxicsubstances,” “toxic pollutants,” “pollutants,” “contaminants,” or words ofsimilar import, under any applicable Environmental Law, (ii) any petroleumor petroleum products, by-products or breakdown products, including crude oilor any fraction thereof, natural or synthetic natural gas, radioactivematerials, asbestos in any form that is friable, urea formaldehyde foaminsulation and radon, and (iii) any other chemical, material, or substanceexposure to which is prohibited, limited, or regulated by any governmentalauthority or under any Environmental Law.

 

“**Losses**” has the meaningset forth in the definition of “Profits” and “Losses.”

 

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

 

“**Member**” means any Person (i) whosename is set forth as a Member on Exhibit A attached hereto or whohas become a substituted Member pursuant to the terms of this Agreement, and (ii) whoholds 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) ofthe Regulations.

 

“**Member Nonrecourse Debt Minimum Gain**”means an amount, with respect to each Member Nonrecourse Debt, equal to theCompany Minimum Gain that would result if such Member Nonrecourse Debt weretreated as a Nonrecourse Liability, determined in accordance with Section 1.704-2(i)(3) ofthe 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 andin the Company’s bank accounts as of the end of such Fiscal Quarter is inexcess of the projected cash requirements of the Company for the immediatelysucceeding Fiscal Quarter. The cash requirements of the Company for any FiscalQuarter shall include, but not be limited to, the amounts that the Board ofManagers reasonably expects will be required to be expended by the Companyduring such Fiscal Quarter for capital

 

9

----

 

calls that may be made onthe Company by other entities, taxes, debt service, and other operating andcapital expenses and contingencies of the Company, all as determined by theBoard of Managers, in its sole and absolute discretion. Net Cash Available forDistribution shall not be reduced by depreciation, amortization, cost recoverydeductions, or similar allowances.

 

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

 

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

 

“**Offered Shares**” has the meaning set forthin 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 themeaning set forth in Section 9.4(a) hereof.

 

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

 

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

 

“**Person**” means anyindividual, partnership (whether general or limited), limited liabilitycompany, 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, anamount 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 statedseparately pursuant to Code Section 703(a)(1) shall be included intaxable income or loss), with the following adjustments (without duplication):

 

(i)            Any income of the Company that isexempt from federal income tax and not otherwise taken into account incomputing Profits or Losses pursuant to this definition of “Profits” and “Losses”shall be added to such taxable income or loss;

 

(ii)           Anyexpenditures of the Company described in Code Section 705(a)(2)(B) ortreated as Code Section 705(a)(2)(B) expenditures pursuant toRegulations Section 1.704-1(b)(2)(iv)(*i*),and not otherwise taken into account in computing Profits or Losses pursuant tothis definition of “Profits” and “Losses,” shall be subtracted from suchtaxable income or loss;

 

10

----

 

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

 

(iv)          Gain or loss resulting from anydisposition of Property with respect to which gain or loss is recognized forfederal income tax purposes shall be computed by reference to the Gross AssetValue of the Property disposed of, notwithstanding that the adjusted tax basisof such Property differs from its Gross Asset Value;

 

(v)           Inlieu of the depreciation, amortization, and other cost recovery deductionstaken into account in computing such taxable income or loss, there shall betaken into account Depreciation for such Allocation Year, computed inaccordance with the definition of Depreciation;

 

(vi)          To the extent an adjustment to theadjusted tax basis of any Company asset pursuant to Code Section 734(b) isrequired, pursuant to Regulations Section 1.704-(b)(2)(iv)(*m*)(*4*),to be taken into account in determining Capital Accounts as a result of adistribution 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 theadjustment increases the basis of the asset) or loss (if the adjustmentdecreases such basis) from the disposition of such asset and shall be takeninto account for purposes of computing Profits or Losses; and

 

(vii)         Notwithstandingany other provision of this definition, any items that are specially allocatedpursuant to Section 3.2 or Section 3.3 hereof shall not be taken intoaccount in computing Profits or Losses.

 

The amounts of theitems of Company income, gain, loss, or deduction available to be speciallyallocated pursuant to Sections 3.2 and 3.3 shall be determined by applying rules analogousto those set forth in subparagraphs (i) through (vi) of thisdefinition.

 

“**Property**” means all realand personal property acquired and owned by the Company (including cash) andany improvements thereto, and shall include both tangible and intangibleproperty.

 

“**Purchase Offer**” has the meaning set forthin Section 9.4(a) hereof.

 

“**Purchaser**” has themeaning set forth in Section 9.4(a) hereof.

 

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

 

11

----

 

“**Regulations**” means theIncome Tax Regulations, including Temporary Regulations, promulgated under theCode, as such regulations may be amended from time to time (includingcorresponding provisions of succeeding regulations).

 

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

 

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

 

“**Securities**” means securities and otherfinancial 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) interestrate, currency, commodity, equity, and other derivative products, including,without limitation, (A) futures contracts (and options thereon) relatingto stock indices, currencies, United States government securities andsecurities of foreign governments, other financial instruments and all othercommodities, (B) swaps, options, rights, warrants, caps, collars, floors,forward rate agreements, and repurchase and reverse repurchase agreements, (C) spotand forward currency transactions, and (D) agreements relating to or securingsuch transactions; (vii) mutual funds and money market funds; (viii) obligationsof the United States, any state thereof, foreign governments andinstrumentalities of any of them; (ix) commercial paper, certificates ofdeposit, banker’s acceptances, trust receipts, letters of credit, and moneymarket instruments; and (x) other obligations and instruments or evidencesof indebtedness of whatever kind or nature; in each case, of any Person andwhether or not publicly traded or readily marketable.

 

“**Seller**” has the meaningset forth in Section 9.4 hereof.

 

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

 

“**Tax Distributions**” hasthe meaning set forth in Section 4.2(a) hereof.

 

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

 

“**Transfer**” means (i) as a noun, anyvoluntary or involuntary (including pursuant to judicial order (including aqualified domestic relations order), legal process, execution, attachment orenforcement 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) asa 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) totransfer, 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 orindirectly 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, eachMember shall be set forth on Exhibit A attached hereto.  Exhibit A shall be amended by theBoard of Managers from time to time to reflect changes, if any, in the informationset forth therein.  (Any amendment to Exhibit Amade by the Board of Managers in accordance with this Agreement shall not bedeemed an amendment of this Agreement for purposes of Section 8.1hereof.)  A separate Capital Accountshall be maintained for each Member, including any Member who shall, after theEffective Date, acquire an interest in the Company.

 

2.2           **Shares**.  The limited liability company interests ofthe Company are represented by Shares. The total number of Shares that the Company shall have the authority toissue 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 suchPersons and for such Capital Contributions (which may be in cash, property orservices rendered, or a promissory note or other obligation to contribute cashor property or to perform services, or any combination of the foregoing) as theBoard of Managers, in its sole and absolute discretion, shall determine.  Each Person to whom Shares are issued shallbe admitted to the Company as a Member upon such Person’s execution of thisAgreement in such manner as the Board of Managers shall determine.

 

2.3           **Other Matters**.

 

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

 

(b)           No Member shallreceive any interest, salary, or drawing with respect to such Member’s CapitalContributions or such Member’s Capital Account or for services rendered on behalfof the Company or otherwise in such Member’s capacity as a Member, except asotherwise provided in this Agreement.

 

(c)           No Member or Managershall be liable for the debts, liabilities, contracts, or any other obligationsof the Company, whether arising in contract, tort or otherwise, solely byreason of being a Member or acting as a Manager hereunder.  Except as otherwise provided by thisAgreement, any other agreements among the Members, or mandatory provisions ofapplicable state law, a Member shall be liable only to make such Member’sCapital Contributions and shall not be required to restore a deficit balance insuch Member’s Capital Account or to lend any funds to the Company or, aftersuch Member’s Capital Contributions have been made, to make any additionalcapital contributions to the Company.

 

13

----

 

(d)           No Manager or Membershall have any personal liability for the repayment of the CapitalContributions of any Member.

 

2.4           **InvestmentRepresentations**.

 

(a)           Inacquiring Shares in the Company, each Member represents and warrants to theBoard of Managers that such Member is acquiring such Shares for such Member’sown account for investment and not with a view to the sale or distribution ofsuch Shares, in whole or in part.  EachMember recognizes that investments such as that contemplated by the Company arespeculative and involve substantial risk. Each Member further represents and warrants that the Board of Managershas not made any guaranty or representation upon which such Member has reliedconcerning the possibility or probability of economic profit or loss as aresult of such Member’s acquisition of Shares in the Company.

 

(b)           EachMember understands and acknowledges that (i) the Shares have not beenregistered under the Securities Act of 1933, as amended, in reliance upon anexemption from such registration; (ii) such Member may not sell, offer forsale, transfer, pledge, or hypothecate such Member’s Shares, in whole or inpart, in the absence of an effective registration statement covering suchShares under said Act unless, in the opinion of counsel reasonably acceptableto the Board of Managers, such sale, offer of sale, transfer, pledge, orhypothecation is exempt from registration under said Act; (iii) neitherthe Company nor the Board of Managers has any obligation to register Shares forsale or to assist in establishing an exemption from registration for anyproposed sale; and (iv) the foregoing restrictions on transfer (as well asthose set forth in Article IX of this Agreement) may severelyaffect 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 and3.3, Profits and Losses for each Allocation Year shall be allocated among theMembers in proportion to the number of Shares held by each Member.

 

3.2           **Special Allocations**.  The following special allocations shall bemade 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 thanSection 3.4(a)), if there is a net decrease in Company Minimum Gain duringany Allocation Year, each Member shall be specially allocated items of Companyincome and gain for such Allocation Year (and, if necessary, subsequentAllocation Years) in an amount equal to such Member’s share of the net decreasein Company Minimum Gain, determined in accordance with Regulations Section 1.704-2(g).Allocations pursuant to the previous sentence shall be made in proportion tothe respective amounts required to be allocated to each Member pursuantthereto. The items to be so allocated shall be determined in accordance withRegulations 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 gainchargeback requirement in Regulations Section 1.704-2(f) and shall beinterpreted consistently therewith.

 

(b)           **Member Minimum Gain Chargeback**. Except as otherwise provided inRegulations Section 1.704-2(i)(4), notwithstanding any other provision ofthis Article III (other than Section 3.4(a)), if there is anet decrease in Member Nonrecourse Debt Minimum Gain attributable to a MemberNonrecourse Debt during any Allocation Year, each Member who has a share of theMember Nonrecourse Debt Minimum Gain attributable to such Member NonrecourseDebt, determined in accordance with Regulations Section 1.704-2(i)(5),shall be specially allocated items of Company income and gain for suchAllocation Year (and, if necessary, subsequent Allocation Years) in an amountequal 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 tothe respective amounts required to be allocated to each Member pursuantthereto. The items to be so allocated shall be determined in accordance withRegulations Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 3.2(b) isintended to comply with the minimum gain chargeback requirement in Regulations Section 1.704-2(i)(4) andshall 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 inan amount and manner sufficient to eliminate, to the extent required by theRegulations, the Adjusted Capital Account Deficit of such Member as quickly aspossible, provided, that an allocation pursuant to this Section 3.2(c) shallbe made only if and to the extent that such Member would have an AdjustedCapital Account Deficit after all other allocations provided for in this Article IIIhave been tentatively made as if this Section 3.2(c) were not in theAgreement.

 

(d)           **Gross Income Allocation**. In the event any Member has a deficit Capital Account at the end of anyAllocation Year that is in excess of the amount such Member is obligated torestore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and1.704-2(i)(5), such Member shall be specially allocated items of Company incomeand 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 onlyif and to the extent that such Member would have a deficit Capital Account inexcess of such amount after all other allocations provided for in this Article IIIhave been made as if Section 3.2(c) and this Section 3.2(d) werenot in the Agreement.

 

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

 

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

 

15

----

 

the economic risk of losswith respect to the Member Nonrecourse Debt to which such Member NonrecourseDeductions 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 basisof any Company asset pursuant to Code Section 734(b) or Section 743(b) isrequired, 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 adistribution to a Member in complete liquidation of such Member’s interest inthe Company, the amount of such adjustment to the Capital Accounts shall be treatedas an item of gain (if the adjustment increases the basis of the asset) or asan item of loss (if the adjustment decreases such basis), and such gain or lossshall be specially allocated to the Members in accordance with their interestsin the Company in the event Regulations Section 1.704-1(b)(2)(iv)(*m*)(2) applies, or to the Member towhom 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 requirementsof the Regulations.  It is the intent ofthe Members that, to the extent possible, all Regulatory Allocations shall beoffset either with other Regulatory Allocations or with special allocations ofother items of Company income, gain, loss, or deduction pursuant to this Section 3.3.  Therefore, notwithstanding any otherprovision of this Article III (other than the RegulatoryAllocations), the Board of Managers shall make such offsetting specialallocations of Company income, gain, loss, or deduction in whatever manner theBoard of Managers determines appropriate so that, after such offsettingallocations are made, each Member’s Capital Account balance is, to the extentpossible, equal to the Capital Account balance such Member would have had ifthe Regulatory Allocations were not part of this Agreement and all Companyitems 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 Allocationsunder Sections 3.2(a) and 3.2(b) that, although not yet made, arelikely to offset other Regulatory Allocations previously made under Sections3.2(c) and 3.2(d).

 

3.4           **Other Allocation Rules**.

 

(a)           For purposes ofdetermining 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 anypermissible method under Code Section 706 and the Regulations thereunder.

 

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

 

16

----

 

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

 

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

 

(e)           Solely for purposesof determining a Member’s proportionate share of the “excess nonrecourseliabilities” 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 ofShares held by each Member.

 

(f)            Inthe event that the Company has taxable income that is characterized as ordinaryincome under the recapture provisions of the Code, each Member’s distributiveshare of taxable gain or loss from the sale of Company assets shall (to theextent possible) include a proportionate share of this recapture income equalto such Member’s share of prior cumulative depreciation deductions with respectto 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 ofincome, gain, loss and deduction of the Company for federal income tax purposesshall be allocated among the Members in the same manner as such item isallocated for book purposes under this Article III.  In accordance with Code Section 704(c) andthe Regulations thereunder, income, gain, loss, and deduction with respect toany property contributed to the capital of the Company shall, solely for taxpurposes, be allocated among the Members so as to take account of any variationbetween the adjusted basis of such property to the Company for federal incometax purposes and its initial Gross Asset Value (computed in accordance withsubsection (i) of the definition of “Gross Asset Value” set forth in Section 1.10hereof) 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 adjustedpursuant to subsection (ii) of the definition of “Gross Asset Value” setforth in Section 1.10 hereof, subsequent allocations of income, gain,loss, and deduction with respect to such asset shall take account of anyvariation between the adjusted basis of such asset for federal income taxpurposes and its Gross Asset Value in the same manner as under Code Section 704(c) andthe Regulations thereunder.

 

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

 

17

----

#### ** **

#### **Article IV**

#### **DISTRIBUTIONS**

#### ** **

4.1           **Net Cash Available for Distribution**.  Net Cash Available for Distribution shall bedetermined by the Board of Managers for each Fiscal Quarter as of the end ofsuch Fiscal Quarter. Except as otherwise provided in Article XI,the Board of Managers may, in its sole and absolute discretion, distribute anyportion 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 Sharesheld by each Member.

 

4.2           **TaxDistributions**.

 

(a)           Notwithstanding anything to thecontrary contained in this Article, with respect to any taxable year of theCompany during which the Company does not liquidate or sell all orsubstantially all of its assets, the Board of Managers shall use all reasonableefforts 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 havereceived with respect to such taxable year distributions at least equal to 40%of the “increase in the cumulative amount of federal taxable income” (asdefined below) allocated to such Member, less any item of partner-leveldeduction attributable to such Member as result of an election made under Section 754of the Code; provided, that (i) in order to take into accountchanges in federal, state or local tax laws and regulations, the Board ofManagers may increase or decrease such percentage; and (ii) the Board ofManagers may apply different or separate percentages to different classes ofincome. Distributions made pursuant to this Section 4.2 shall be takeninto account as distributions made pursuant to Section 4.1 hereof.

 

(b)           Distributions pursuant to this Section 4.2shall be made during the taxable year to which such distributions relate forthe purpose of funding the federal and state estimated tax liabilities of theMembers based on the taxable income of the Company during the periods withrespect to which estimated tax payments are due, and shall be made not lessthan five (5) days before the due date of each estimated tax payment by anindividual taxpayer.

 

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

 

4.3           **Amounts Withheld**.  All amounts withheld pursuant to the Code orany 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 asamounts paid or distributed, as the case may be, to the Members with respect towhom such amounts were withheld pursuant to this Section 4.3 for allpurposes under this Agreement.  TheCompany is authorized to withhold from payments and distributions, or withrespect to allocations, to the Members, and to pay over to any federal, stateor local

 

18

----

 

government, any amounts required to be so withheldpursuant to the Code or any provisions of any other federal, state or locallaw, and shall allocate any such amounts to the Members with respect to whomsuch amounts were withheld.

 

4.4           **Limitationson Distributions**.

 

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

 

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

 

(c)           Notwithstandingany provision to the contrary contained in this Agreement, the Company shallnot be required to make a distribution to any Member on account of such Member’sinterest in the Company if such distribution would violate the Act or any otherapplicable law.

 

**Article V**

**MANAGEMENT**

 

5.1           **Managers; Board of Managers**.

 

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

 

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

 

(c)           Each Manager shallserve as such until the first to occur of such Person’s death, permanent andtotal disability, dissolution, termination, Bankruptcy, or resignation orremoval as a Manager.  For purposes ofthis Section 5.1, a Manager shall be regarded as permanently and totallydisabled if such Manager is unable to engage in any substantial gainfulactivity by reason of any medically determinable physical or mental impairmentthat can be expected to result in death or that has lasted or can reasonably beexpected to last for a continuous period of not less than six (6) months.  A Manager may resign as such by givingwritten notice to the remaining Managers or, if there is no remaining Manager,to the Members.  Such resignation shalltake effect at the time or upon the event specified therein or, if none isspecified, upon receipt.  Unless

 

19

----

 

otherwisespecified in the resignation, its acceptance shall not be necessary to make iteffective.  A Manager may be removed atany time, with or without cause, by the Consent of the Members; provided,however, that in no event shall the Members have the power or authorityto remove Harold Brown as a Manager.

 

(d)           In the event of avacancy in the office of Manager by reason of the death, permanent and totaldisability, Bankruptcy, or resignation of Harold Brown, the Members shall, bythe Consent of the Members, elect a Manager to fill such vacancy.  In the event of any further vacancy in theoffice 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 aManager to fill such vacancy, or (ii) if there is at least one otherManager then serving, decrease the number of Managers by one in order toeliminate such vacancy.

 

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

 

(f)            EachManager shall perform his duties as a Manager in good faith, in a manner hereasonably believes to be in the best interests of the Company, and with suchcare as an ordinarily prudent individual in a like position would use undersimilar circumstances. So long as a Manager so performs his duties, suchManager shall not have any liability by reason of being or having been aManager of the Company.

 

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

 

5.2.          **Meetings of the Board of Managers**.

 

(a)           TheBoard of Managers shall hold regular meetings not less frequently than onceevery Fiscal Year and shall establish meeting times, dates, and places, andrequisite 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 theBoard of Managers will be held at the Company’s principal place of business. Atsuch meetings the Board of Managers shall transact such business as mayproperly be brought before the meeting, whether or not notice of such meetingreferenced the action taken at such meeting.

 

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

 

20

----

 

other than thosespecified in the notice may be considered at any special meeting unlessunanimously approved by the Managers.

 

(c)           Any Manager may waive notice of anymeeting in writing before, at, or after such meeting. The attendance of aManager 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 tothe transaction of any business because the meeting was not properly called.

 

(d)           Anyaction required or permitted to be taken at a meeting of the Board of Managersmay be taken at a meeting held by means of conference telephone or othercommunications equipment by means of which each Person participating in themeeting can hear each other Person participating in such meeting. Participationin such a meeting shall constitute presence in person at such meeting.

 

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

 

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

 

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

 

(ii)           Acquireby purchase, lease, or otherwise any real or personal property that may benecessary, convenient, desirable, appropriate, or incidental to theaccomplishment 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 personalproperty necessary, convenient, or incidental to the accomplishment of thepurposes of the Company;

 

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

 

21

----

 

(v)           Borrowmoney and issue evidences of indebtedness necessary, convenient, or incidentalto the accomplishment of the purposes of the Company, and secure the same bymortgage, 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 ofthe Property;

 

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

 

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

 

(ix)           Contracton behalf of the Company for the employment and services of employees and/orindependent contractors, such as property managers, property maintenancecompanies, contractors, lawyers, and accountants, and delegate to such Personsthe duty to manage, supervise, or otherwise deal with any of the assets oroperations of the Company;

 

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

 

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

 

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

 

5.4           **Right to Rely on Managers**.

 

(a)           Any Person dealingwith the Company may rely (without duty of further inquiry) upon a certificatesigned by any Manager as to:

 

(i)            Theidentity of any Member or Manager;

 

22

----

 

(ii)           Theexistence or nonexistence of any fact or facts that constitute a conditionprecedent to acts by the Company or that are in any other manner germane to theaffairs of the Company;

 

(iii)          ThePersons who are authorized to execute and deliver any instrument or document ofthe Company; or

 

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

 

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

 

(c)           Each Manager is anagent of the Company for the purpose of its business and affairs.  The act of any Manager, including, but notlimited to, the execution in the name of the Company of any instrument, forapparently carrying on in the usual way the business or affairs of the Companyshall be binding upon the Company unless (i) such Manager in fact has noauthority to act for the Company in the particular matter, and (ii) thePerson with whom such Manager is dealing has knowledge of the fact that suchManager has no such authority.

 

5.5           **Restrictions on Authority of the Managers**.  Notwithstanding anything to the contrarycontained 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 allowthe Company to do any of the following acts without the Consent of the Members:

 

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

 

(ii)           Doany act in contravention of this Agreement;

 

(iii)          Possessor assign rights in the Property of the Company other than for a Companypurpose;

 

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

 

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

 

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

 

23

----

 

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

 

5.6           **Duties and Obligations of the Board of Managers**.

 

(a)           The Board ofManagers shall cause the Company to conduct its business and affairs separateand apart from the business and affairs of any Member or Manager, or anyAffiliate of any Member or Manager, including, without limitation, (i) segregatingCompany assets and not allowing funds or other assets of the Company to becommingled with the funds or other assets of, held by, or registered in thename of any Member or Manager, or any Affiliate of any Member or Manager, (ii) maintainingbooks and financial records of the Company separate from the books andfinancial records of any Member or Manager and the Affiliates of any Member orManager, and observing all Company procedures and formalities, (iii) causingthe Company to pay its liabilities from assets of the Company, and (iv) causingthe Company to conduct its dealings with third parties in its own name and as aseparate and independent entity.

 

(b)           The Board ofManagers shall take all actions that may be necessary or appropriate (i) forthe continuation of the Company’s valid existence as a limited liabilitycompany under the laws of the Commonwealth of Massachusetts and of each otherjurisdiction in which such existence is necessary to protect the limitedliability of the Members or to enable the Company to conduct the business inwhich it is engaged, and (ii) for the accomplishment of the Company’spurposes in accordance with the provisions of this Agreement and applicablelaws and regulations.

 

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

 

(d)           The Board ofManagers shall cause to be provided, or cause the Company to carry, suchinsurance as is customary in the business in which the Company is engaged andin the place or places in which it is so engaged.

 

5.7           **Indemnification**.

 

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

 

24

----

 

(b)           Except as otherwiseprovided in Section 5.7(e), the Company, its receiver, or its trustee (inthe case of its receiver or trustee, to the extent of the Property) shallindemnify and hold harmless, to the maximum extent permitted by law, eachManager and each Member from and against any and all liabilities, sums paid insettlement of claims (if such settlement is consented to by the Board ofManagers), obligations, charges, actions (formal or informal), claims(including, without limitation, claims for personal injury under any theory orfor real or personal property damage), liens, taxes, administrativeproceedings, losses, damages (including, without limitation, foreseeable,unforeseeable, consequential, and punitive damages), penalties, fines, courtcosts, 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 andinvestigating, laboratory, and data review fees) imposed upon or incurred bythe 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)            thepast, present, or future treatment, storage, disposal, generation, use,transport, movement, presence, release, threatened release, spill,installation, sale, emission, injection, leaching, dumping, escaping, orseeping of any Hazardous Substances, or material containing or alleged tocontain Hazardous Substances, at or from any past, present, or futureproperties or assets of the Company;

 

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

 

(iii)          anyEnvironmental Claim arising in connection with any business or activities ofthe Company.

 

(c)           Except as otherwiseprovided in Section 5.7(e), in the event of any action by a Member againstany one or more of the Managers, including a Company derivative suit, theCompany shall indemnify, save harmless, and pay all Expenses of each suchManager incurred in the defense of such action, but only if such Manager is notjudged liable in such action.

 

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

 

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

 

25

----

 

(f)            Notwithstandinganything to the contrary in any of Sections 5.7(a), 5.7(b), 5.7(c), 5.7(d) and5.7(e) above, in the event that any provision in any of such Sections isdetermined to be invalid in whole or in part, such Section shall beenforced to the maximum extent permitted by law.

 

5.8           **Compensation; Expenses of Manager**.

 

(a)           **Compensationand Reimbursement**.  Except asotherwise approved by the Consent of the Members, no Manager shall receive anysalary, fee, or draw for services rendered to or on behalf of the Company, norshall any Manager be reimbursed for any expenses incurred by such Manager onbehalf of the Company.

 

(b)           **Reimbursementof Expenses**.  Notwithstandingthe foregoing, the Company shall reimburse the Members and Managers for allexpenses incurred and paid by any of them in connection with the conduct of theCompany’s business and affairs, including, but not limited to, expenses ofmaintaining an office, telephone, travel, office equipment, and secretarial andother personnel as may reasonably be attributable to the Company. Such expensesshall not include any expenses incurred in connection with a Member or Manager’sexercise of such Person’s rights as a Member or Manager apart from theauthorized conduct of the Company’s business and affairs. The Board of Managers’determination, in its sole discretion, of (i) which expenses are properlyallocable to, and shall be reimbursed as a result of, the conduct and operationof the Company’s business and affairs, and (ii) the amount of suchexpenses, shall be conclusive on all Persons concerned. Any reimbursement ofexpenses under this Section 5.8(b) shall be treated as an expense ofthe Company and shall not be deemed to constitute a distribution to any Memberof Profit, Loss, or capital of the Company.

 

5.9           **Loans**.  Any Member, Manager, or Affiliate of anyMember or Manager may, with the consent of the Board of Managers, lend oradvance money to the Company.  If anyMember shall make a loan to the Company or advance money on its behalf, theamount of such loan or advance shall not be treated as a contribution to thecapital of the Company but shall be a Debt due from the Company to the lendingMember.  The amount of any loan oradvance by a lending Manager, Member, or Affiliate of a Member or Manager shallbe 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 theBoard of Managers taking into consideration, without limitation, prevailinginterest rates and the interest rates the lender is required to pay in theevent 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 anindependent third party.  None of theMembers, the Managers, or their Affiliates shall be obligated to make any loanor advance to the Company.

 

#### **Article VI**

#### **ROLE OF MEMBERS**

#### ** **

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

 

26

----

 

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

 

6.2           **Voting Rights**.  The Members shall have the right to vote onlyon those matters set forth in this Agreement or in the Act that arespecifically reserved for their approval or consent.  Each Member shall have one vote for eachShare held by such Member.

 

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

 

#### **Article VII**

#### **BOOKS AND RECORDS**

#### ** **

7.1.          **Accounting, Books and Records**.

 

(a)           TheCompany shall keep on site (i) at its principal place of business separatebooks of account for the Company that shall show a true and accurate record ofall costs and expenses incurred, all charges made, all credits made andreceived, and all income derived in connection with the conduct of the Companyand the operation of its business and affairs in accordance with thisAgreement, and (ii) at its registered office in the Commonwealth ofMassachusetts all documents that the Company is required to keep at suchregistered office by Section 9 of the Act.

 

(b)           TheCompany shall use such method of accounting in preparation of its financialreports and for tax purposes as shall be determined by the Board of Managers,in its discretion, and the Company shall keep its books and recordsaccordingly. Any Member or such Member’s designated representative shall havethe right, during normal business hours, to have reasonable access to, andinspect and copy, the contents of the books and records of the Company. Therights granted to a Member pursuant to this Section 7.1(b) areexpressly subject to compliance by such Member with the safety, security, andconfidentiality procedures and guidelines of the Company, as such proceduresand guidelines may be established and modified from time to time by the Boardof Managers.

 

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

 

27

----

 

accountants.

 

7.3.          **Tax Matters**.

 

(a)           **Tax Elections**. The Tax Matters Member shall, without any furtherconsent 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) tomake the election provided for in Code Section 6231(a)(1)(B)(ii); (ii) toadjust 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 withTransfers of Shares and Company distributions; (iii) with the consent ofall of the Members, to extend the statute of limitations for assessment of taxdeficiencies against the Members with respect to adjustments to the Company’sfederal, state, local, or foreign tax returns; and (iv) to the extentprovided in Code Sections 6221 through 6231 and similar provisions of federal,state, local, or foreign law, to represent the Company and the Members beforetaxing authorities or courts of competent jurisdiction in tax matters affectingthe Company or the Members in their capacities as Members, and to file any taxreturns and execute any agreements or other documents relating to or affectingsuch tax matters, including agreements or other documents that bind the Memberswith respect to such tax matters or otherwise affect the rights of the Companyand the Members. Harold Brown is specifically authorized to act as the “TaxMatters Member” under the Code and in any similar capacity under state, local,or foreign law.

 

(b)           **Tax Information**. Necessary tax information shall bedelivered to each Member as soon as practicable after the end of each FiscalYear of the Company.

 

#### **Article VIII**

#### **AMENDMENTS**

#### ** **

8.1           **Amendments**.

 

(a)           A proposed amendmentto this Agreement shall be adopted and be effective as an amendment to thisAgreement 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 Memberadversely affected if such amendment would (i) increase the CapitalContribution payable by such Member, (ii) modify the limited liability ofsuch 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 otherwisepermitted by this Agreement, no Member shall Transfer all or any part of suchMember’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 orotherwise encumbers any of such Member’s Shares in the Company as security forthe payment of a debt, any such pledge or hypothecation shall be made pursuantto a pledge or hypothecation agreement that requires the pledgee or securedparty to be bound by all of the terms and conditions of this Article IX.

 

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

 

9.2           **Permitted Transfers**.  Subject to the conditions and restrictionsset forth in Section 9.3 hereof, a Member may at any time, without theconsent of the Board of Managers, Transfer all or any part of such Member’sShares to (a) any other Member, (b) any member of the transferor’sFamily, (c) the transferor’s executor, administrator, guardian,conservator, trustee, or personal representative to whom such Shares aretransferred at death or involuntarily by operation of law, (d) if thetransferor is a trust, the beneficiaries to whom such Shares are transferredpursuant to the terms of the governing instrument upon the termination of thetrust, (e) if the transferor is a corporation, general or limitedpartnership, or limited liability company, the equity holders to whom suchShares are transferred upon the dissolution of such entity, or (f) anyPurchaser in accordance with Section 9.4 hereof (any such Transfer beingreferred 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 ancestorsor descendants, and trusts for the exclusive benefit of any one or more of suchMember and the individual members of such Member’s Family.

 

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

 

(a)           Except in the caseof a Transfer of Shares at death or involuntarily by operation of law, thetransferor and transferee shall execute and deliver to the Company suchdocuments and instruments of conveyance as may be necessary or appropriate inthe opinion of counsel to the Company to effect such Transfer and to confirmthe agreement of the transferee to be bound by the provisions of this Article IX.  In the case of a Transfer of Shares at deathor involuntarily by operation of law, the Transfer shall be confirmed bypresentation to the Company of legal evidence of such Transfer, in form andsubstance satisfactory to counsel to the Company.  In all cases, the Company shall be reimbursedby the transferor and/or transferee for all costs and expenses that the Companyreasonably incurs in connection with such Transfer.

 

(b)           Except in the caseof a Transfer at death or involuntarily by operation of law, unless otherwiseapproved by the Board of Managers, no Transfer of Shares shall be made exceptupon terms that would not, in the opinion of counsel chosen by and mutuallyacceptable

 

29

----

 

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

 

(c)           The transferor andtransferee shall furnish the Company with the transferee’s taxpayeridentification number and sufficient information to determine the transferee’sinitial tax basis in the Shares transferred, and any other informationreasonably necessary to permit the Company to file all required federal andstate tax returns and other legally required information statements or returns.  Without limiting the generality of theforegoing, the Company shall not be required to make any distribution otherwiseprovided for in this Agreement with respect to any transferred Shares until ithas received such information.

 

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

 

9.4.          **Right of First Refusal**. In addition to the other limitations and restrictionsset forth in this Article IX, no Member shall Transfer all or anyportion 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 9.4unless the Seller has received a bona fide written offer (the “Purchase Offer”)from a Person (the “Purchaser”) to purchase the Offered Shares for a purchaseprice (the “Offer Price”) denominated and payable in United States dollars atclosing or according to specified terms, with or without interest, which offershall be in a writing signed by the Purchaser and shall be irrevocable for aperiod ending no sooner than the Business Day following the end of the OfferPeriod, as hereinafter defined.

 

(b)           **Offer Notice**. Prior to making any Transfer that issubject to the terms of this Section 9.4, the Seller shall give to theBoard 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 favorableterms than) those contained in the Purchase Offer, provided, that theFirm Offer shall be made without regard to the requirement of any earnest moneyor similar deposit required of the Purchaser prior to closing, and withoutregard to any security (other than the Offered Shares) to be provided by thePurchaser for any deferred portion of the Offer Price.

 

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

 

30

----

 

(d)           **Acceptance of Firm Offer**.

 

(i)            **Acceptanceby the Company**.  At any time duringthe first forty-five (45) days of the Offer Period, the Company may accept theFirm Offer as to all or any portion of the Offered Shares, by giving writtennotice of such acceptance to the Seller and each Offeree, which notice shallindicate the number of the Offered Shares that the Company wishes topurchase.  (The Company may, in the soleand absolute discretion of the Board of Managers, assign its right of firstrefusal 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 9.4to the Company shall include each, if any, such assignee.)  In the event that (A) the Company timelyaccepts the Firm Offer with respect to all or any portion of the OfferedShares, 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 notelect to purchase, then the Company shall purchase all of the Offered Sharesthat it elects to purchase, in accordance with the terms of the Firm Offer, ata closing held pursuant to Section 9.4(e).

 

(ii)           **Acceptanceby the Offerees**.  If theCompany does not timely accept the Firm Offer with respect to all of the OfferedShares, then, at any time during the last forty-five (45) days of the OfferPeriod, any Offeree may accept the Firm Offer as to all or any portion of theOffered Shares that the Company does not elect to purchase, by giving writtennotice of such acceptance to the Seller, the Board of Managers and each otherOfferee, which notice shall indicate the maximum number of such Offered Sharesthat such Offeree is willing to purchase. In the event that Offerees (“AcceptingOfferees”), in the aggregate, accept the Firm Offer with respect to all of theOffered Shares that the Company does not elect to purchase, then the Firm Offershall be deemed to be accepted and each Accepting Offeree shall be deemed tohave accepted the Firm Offer as to that number of such Offered Shares thatcorresponds to the ratio of the number of Offered Shares that such AcceptingOfferee indicated a willingness to purchase to the aggregate number of OfferedShares that all Accepting Offerees indicated a willingness to purchase. If theCompany and one or more of the Offerees do not accept the Firm Offer as to allof the Offered Shares during the Offer Period, the Firm Offer shall be deemedrejected in its entirety.

 

(e)           **Closing of Purchase Pursuant toFirm Offer**. In the event that the Firm Offer is accepted (by any one or more ofthe Company and the Offerees), the closing of the sale of the Offered Shares toany one or more of the Company and the Accepting Offerees shall take placewithin thirty (30) days after the Firm Offer is accepted or, if later, the dateof closing set forth in the Purchase Offer. The Seller and those Personspurchasing the Offered Shares pursuant to their acceptance of the Firm Offershall execute such documents and instruments as may be necessary or appropriateto effect the sale of the Offered Shares pursuant to the terms of the FirmOffer and this Article IX.

 

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

 

31

----

 

such sale shall bemade on terms no more favorable to the Purchaser than the terms contained inthe Purchase Offer and, provided, further, that such salecomplies with other terms, conditions, and restrictions of this Agreement thatare 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 theterms of the preceding sentence, the Offered Shares shall again become and besubject to all of the conditions and restrictions of this Section 9.4.

 

9.5           **Prohibited Transfers**.  Any purported Transfer of Shares that is nota Permitted Transfer and to which the Board of Managers does not give itsconsent 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 aPermitted Transfer and that did not receive the consent of the Board ofManagers, the interest in the Company so transferred shall be strictly limitedto the transferor’s rights to allocations and distributions as provided by thisAgreement with respect to the transferred Shares, which allocations anddistributions may be applied (without limiting any other legal or equitablerights of the Company) to satisfy any debts, obligations, or liabilities fordamages that the transferor or transferee of such Shares may have to theCompany.

 

In the case of a Transfer or attempted Transfer of Shares that is not aPermitted Transfer and that does not receive the consent of the Board ofManagers, the parties engaging or attempting to engage in such Transfer shallbe liable to indemnify and hold harmless the Company and the Members from allExpenses that any of such indemnified Persons may incur (including, withoutlimitation, incremental tax liability and attorneys’ fees and expenses) as aresult of such Transfer or attempted Transfer and efforts to enforce theindemnity granted hereby.

 

9.6           **Rights of Unadmitted Assignees**.  A Person who acquires one or more Shares in aPermitted Transfer or in any other Transfer to which the Board of Managersconsents, but who is not admitted as a substituted Member pursuant to Section 9.7hereof, shall be entitled only to allocations and distributions with respect tosuch Shares in accordance with this Agreement, and shall have no right to anyinformation or accounting of the affairs of the Company, shall not be entitledto inspect the books or records of the Company, and shall not have any of therights 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 Memberonly upon satisfaction of the conditions set forth below in this Section 9.7:

 

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

 

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

 

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

 

32

----

 

requestas necessary or appropriate to confirm such transferee as a Member in theCompany and such transferee’s agreement to be bound by the terms and conditionshereof;

 

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

 

(e)           If the transferee isnot an individual of legal majority, the transferee provides the Company withevidence satisfactory to counsel for the Company of the authority of thetransferee to become a Member and to be bound by the terms and conditions ofthis Agreement.

 

9.8           **Distributions and Allocations in Respect ofTransferred Interests**.  If anyShares are transferred during any Allocation Year in compliance with theprovisions of this Article IX, Profits, Losses, each item thereof,and all other items attributable to such Shares for such Allocation Year shallbe divided and allocated between the transferor and the transferee by takinginto account their varying interests during such Allocation Year in accordancewith Code Section 706(d), using any conventions permitted by law andselected by the Board of Managers.  Alldistributions on or before the date of such Transfer shall be made to thetransferor, and all distributions thereafter shall be made to thetransferee.  Solely for purposes ofmaking such allocations and distributions, the Company shall recognize suchTransfer not later than the end of the calendar month during which it is givennotice of such Transfer; provided, that, if the Company is given noticeof a Transfer at least ten (10) Business Days prior to the Transfer, theCompany shall recognize such Transfer as of the date of such Transfer; and, providedfurther, that, if the Company does not receive a notice stating the datesuch Shares were transferred, and such other information as the Board ofManagers may reasonably require, within thirty (30) days after the end of theAllocation Year during which the Transfer occurred, then all of such itemsshall 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 transferredShares on the last day of the Allocation Year during which the Transferoccurred.  Neither the Company nor anyManager shall incur any liability for making allocations and distributions inaccordance with the provisions of this Section 9.8, whether or not theCompany 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 thefollowing events:

 

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

 

(b)           TheBankruptcy of such Person;

 

33

----

 

(c)           Ifsuch Person is an individual, the death of such Person or the entry of an orderby a court of competent jurisdiction adjudicating such Person incompetent tomanage his person or estate;

 

(d)           Ifsuch Person is a trust, the termination of the trust (but not the substitutionof a new trustee);

 

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

 

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

 

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

 

(h)           SuchPerson’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 suchPerson’s Shares in the Company, then such Person shall be treated as anunadmitted transferee of Shares with only those rights set forth in Section 9.6of this Agreement.  No Person who ceasesto be a Member shall be entitled to receive from the Company, solely by reasonof such Person’s Retirement, the fair value of such Person’s Shares in theCompany (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 voluntaryact.  Any attempted voluntary withdrawalby a Member shall be null and void and of no force or effect whatever.

 

#### **Article XI**

# **DISSOLUTIONAND WINDING UP**

#  

11.1         **Dissolution Events**.

 

(a)           **Dissolution**.  The Company shall dissolve and commencewinding up and liquidating upon the first to occur of any of the following (“DissolutionEvents”):

 

(i)            December 31,2109;

 

(ii)           Thedissolution, winding up, and liquidation of the Company is approved by theConsent of the Members;

 

34

----

 

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

 

(iv)          The occurrence of any other event thatmakes 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 oneMember, unless at least one new Member is admitted to the Company within suchninety-day period; or

 

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

 

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

 

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

 

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

 

(ii)           Unlessotherwise agreed to by the Consent of the Members, the Certificate and thisAgreement shall automatically constitute the Certificate and operatingagreement of such new limited liability company. All of the assets andliabilities of the dissolved Company shall be deemed to have been automaticallyassigned, assumed, conveyed, and transferred to the new company. No bond,collateral, assumption, or release of any Member’s or the Company’s liabilitiesshall be required; provided, that the right of the Members to selectsuccessor managers and to reconstitute and continue the Company’s business andaffairs shall not exist and may not be exercised unless the Company hasreceived an opinion of counsel that the exercise of the right would not resultin the loss of limited liability of any Member and neither the Company nor thereconstituted limited liability company would cease to be treated as apartnership for federal income tax purposes upon the exercise of such right tocontinue.

 

11.2         **Winding Up**. Upon the occurrence of (i) a Dissolution Event, or (ii) thedetermination by a court of competent jurisdiction that the Company hasdissolved prior to the occurrence of a Dissolution Event (unless the Company isreconstituted pursuant to Section 11.1(b) hereof), the Company shallcontinue solely for the purposes of winding up its affairs in an orderlymanner, liquidating its assets, and satisfying the claims of its creditors andMembers,

 

35

----

 

and neither any Manager nor any Member shall take anyaction that is inconsistent with, or not necessary to or appropriate for, thewinding up of the Company’s business and affairs, provided, that allcovenants contained in this Agreement and obligations provided for in thisAgreement shall continue to be fully binding upon the Managers and the Membersuntil such time as the Property has been distributed pursuant to this Section 11.2and the Certificate has been canceled pursuant to the Act. The Board of Managersshall be responsible for overseeing the winding up and dissolution of theCompany, which winding up and dissolution shall be completed within ninety (90)days of the occurrence of the Dissolution Event or within ninety (90) daysafter 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 theCompany’s liabilities and Property and shall cause the Property, or theproceeds from the sale thereof, to the extent sufficient therefor, to beapplied and distributed, to the maximum extent permitted by law, in thefollowing order:

 

(a)           First, to creditors (including anyMember 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 bypayment or the making of reasonable provision for payment thereof); and

 

(b)           The balance, if any, to the Members in proportion to the number of Sharesheld by each Member; provided, however, that, if a Member’sCapital Account shall be less than the amount that such Member would receivepursuant to Section 4.1 hereof, then such Member shall not receive anamount 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 forall Allocation Years, including the Allocation Year during which suchliquidation occurs), such Member shall have no obligation to make any contributionto the capital of the Company with respect to such deficit, and such deficitshall not be considered a debt owed to the Company or to any other Person forany purpose whatsoever.

 

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

 

(i)            Distributed to a trust establishedfor the benefit of the Members for the purposes of liquidating Company assets,collecting amounts owed to the Company, and paying any contingent or unforeseenliabilities or obligations of the Company. The assets of any such trust shallbe distributed to the Members from time to time, in the reasonable discretionof the Board of Managers, in the same proportions as the amount distributed tosuch trust by the Company would otherwise have been distributed to the Memberspursuant to this Section 11.2; or

 

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

 

36

----

 

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

 

No Member orManager shall receive any compensation for any services performed pursuant tothis Article XI.

 

11.3         **Compliance With Certain Requirements of Regulations**.   In the event the Company is liquidatedwithin the meaning of Regulations Section 1.704-1(b)(2)(ii)(*g*) but no Dissolution Event has occurred, the Propertyshall not be liquidated, the Company’s Debts and other liabilities shall not bepaid 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 havecontributed all of the Property and liabilities to a new limited liabilitycompany in exchange for an interest in such new limited liability company and,immediately thereafter, the Company shall be deemed to liquidate bydistributing interests in the new limited liability company to the Members.

 

11.4         **Rights of Members**.  Except as otherwise provided in thisAgreement, each Member shall look solely to the Property of the Company for thereturn of such Member’s Capital Contributions and shall have no right or powerto demand or receive Property, other than cash, from the Company. If the assetsof the Company remaining after payment or discharge of the Debts or otherliabilities of the Company are insufficient to return a Member’s CapitalContributions, such Member shall have no recourse against the Company, theManager, or any other Member.

 

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

 

11.6         **Allocations During Period of Dissolution**. During the period commencing on the first day of theFiscal Year during which a Dissolution Event occurs and ending on the date onwhich all of the assets of the Company have been distributed to the Memberspursuant to Section 11.2 hereof, the Members shall continue to shareProfits, Losses, gain, loss and other items of Company income, gain, loss, ordeduction in the manner provided in Article III hereof.

 

11.7         **Character of LiquidatingDistributions**. All payments made in liquidation of the interest of a Member in theCompany shall be made in exchange for the interest of such Member in Propertypursuant to Code Section 736(b)(1), including the interest of such Memberin Company goodwill.

 

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

 

37

----

#### ** **

#### **Article XII**

**POWER OFATTORNEY**

 

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

 

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

 

(b)           Any and all amendments or changes tothis Agreement and the instruments described in paragraph (a), as now orhereafter amended, that the Board of Managers may deem necessary or appropriateto effect a change or modification of the Company in accordance with the termsof this Agreement, including, without limitation, amendments or changes toreflect (i) the exercise by the Board of Managers or Manager of any powergranted to the Board of Managers under this Agreement, (ii) any amendmentsadopted by the Members in accordance with the terms of this Agreement, (iii) theadmission of any substituted Member, and (iv) the disposition by anyMember of any or all of his Shares;

 

(c)           ACertificates of Cancellation and other certificates and instruments that theBoard of Managers may deem necessary or appropriate to effect the dissolutionand termination of the Company pursuant to the terms of this Agreement; and

 

(d)           Anyother instrument that is now or may hereafter be required by law to be filed onbehalf of the Company or is deemed necessary or appropriate by the Board ofManagers to carry out fully the provisions of this Agreement in accordance withits terms.

 

Each Memberauthorizes each such attorney-in-fact to take any further action that suchattorney-in-fact shall consider necessary or advisable in connection with anyof the foregoing, hereby giving each such attorney-in-fact full power andauthority to do and perform each and every act or thing whatsoever requisite oradvisable to be done in connection with the foregoing as fully as such Membermight or could do personally, and hereby ratifying and confirming all that anysuch attorney-in-fact shall lawfully do or cause to be done by virtue thereofor hereof.

 

12.2         **Nature as Special Power**.  The power of attorney granted pursuant tothis Article XII:

 

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

 

38

----

 

(b)           May beexercised by any such attorney-in-fact by listing the Members executing anyagreement, certificate, instrument, or other document with the single signatureof any such attorney-in-fact acting as attorney-in-fact for such Members; and

 

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

 

#### **Article XIII**

#### **MISCELLANEOUS**

#### ** **

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

 

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

 

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

 

Any such noticeshall be deemed to be delivered, given, and received for all purposes as of thedate so delivered by overnight courier.

 

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

 

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

 

13.4         **Severability**.  Every provision of this Agreement is intendedto be severable.  If any term orprovision hereof is illegal or invalid for any reason whatsoever, suchillegality or invalidity shall not affect the validity or legality of theremainder of this Agreement.

 

39

----

 

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

 

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

 

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

 

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

 

13.9         **Legends**. If any Shares in the Company arerepresented by certificates or instruments, such certificates or instrumentsshall contain any legends required by law and reasonably required by the Boardof Managers.

 

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

 

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

 
|   | **MEMBERS:** |
|--------|--------------|
|   |         |
|   |         |
|   | Harold Brown |

 

*[SIGNATURES CONTINUED ONFOLLOWING 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 OperatingAgreement**

**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

----