EXHIBIT B.21
LIMITED LIABILITY COMPANY AGREEMENT
OF
METROWEST REALTY, L.L.C.
THIS LIMITED LIABILITY COMPANY AGREEMENT of Metrowest Realty, L.L.C.
(the "LLC"), dated as of December 17, 1998, is made by New England Electric
System as the sole member of the LLC. Additional members of the LLC may be
admitted as provided herein. New England Electric System, together with any
such additional members, is hereinafter referred to as a "Member" or
"Members."
New England Electric System, intending to form a limited liability
company pursuant to the Delaware Limited Liability Company Act (the "Act"),
hereby agrees as follows:
1. Name of LLC. The name of the LLC is Metrowest Realty, L.L.C.
2. Business of LLC; Purposes and Powers.
(a) The general character of the business of the LLC is to (i)
directly or indirectly hold interests in real estate and to acquire, finance,
operate and dispose of such interests and (ii) engage in any lawful act or
activity for which limited liability companies may be organized under the Act,
directly or indirectly through joint ventures, partnerships or other entities;
and to engage in any activities directly or indirectly related, necessary,
desirable or incidental thereto.
(b) The LLC shall be member-managed. All decisions respecting
any matter set forth herein or otherwise affecting or arising out of the
conduct of the business of the LLC shall be made by the Members, by action of
a majority in number thereof, unless pursuant to this Agreement, the Act or
other applicable law, a greater number or percentage of Members is required.
The Members shall have the exclusive right and full authority to manage,
conduct and operate the LLC business. Specifically, but not by way of
limitation, the Members shall be authorized, for and on behalf of the LLC:
(i) to purchase and sell interests in real estate on
behalf of the LLC;
(ii) to borrow money, to enter into, execute and deliver
indemnities, to issue evidences of indebtedness and to guarantee the debts of
others for whatever purposes they may specify, whether or not related to the
LLC or the LLC's assets, and, as security therefor, to mortgage, pledge or
otherwise encumber the assets of the LLC;
(iii) to cause to be paid on or before the due date
thereof all amounts due and payable by the LLC to any person or entity;
(iv) to employ such agents, employees, managers,
accountants, attorneys, consultants and other persons necessary or appropriate
to carry out the business and affairs of the LLC, whether or not any such
persons so employed are Members or are affiliated or related to any Member,
and to pay such fees, expenses, salaries, wages and other compensation to such
persons as the Members shall in their sole discretion determine;
(v) to pay, extend, renew, modify, adjust, submit to
arbitration, prosecute, defend or compromise, upon such terms as they may
determine and upon such evidence as they may deem sufficient, any obligation,
suit, liability, cause of action or claim, including taxes, either in favor of
or against the LLC;
(vi) to pay any and all fees and to make any and all
expenditures which the Members, in their discretion, deem necessary or
appropriate in connection with the organization of the LLC, and the carrying
out of its obligations and responsibilities under this or any other Agreement;
(vii) to cause the LLC's property to be maintained and
operated in a manner which satisfies in all respects the obligations imposed
with respect to such maintenance and operation by law, by any mortgages
encumbering such property from time to time and by any lease, agreement or
rental arrangement pertaining to such property;
(viii) to cause necessary and proper repairs to be made and
supplies necessary for the proper operation, maintenance and repair of the
LLC's property to be obtained;
(ix) to lease, sell, finance or refinance all or any
portion of the LLC's property; and
(x) to exercise all powers and authority granted by the
Act to members, except as otherwise specifically provided in this Agreement.
(c) Any Member of the LLC is authorized to execute on behalf of
the LLC any documents to be filed with the Secretary of State of the State of
Delaware. Any Member is authorized to execute, acknowledge, deliver and
record on behalf of the LLC any recordable instrument purporting to affect an
interest in real property of the LLC.
(d) The signature of any one Member on any agreement, contract,
instrument or other document shall be sufficient to bind the LLC in respect
thereof and conclusively evidence the authority of such Member and the LLC
with respect thereto, and no third party need look to any other evidence or
require the joinder or consent of any other party.
3. Office of the Limited Liability Company. The LLC's registered
office in Delaware is c/o Corporation Trust Company, Corporation Trust Center,
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the principal place of business of the LLC is ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
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4. Agent for Service of Process. The name and address of the agent
for service of process of the LLC in Delaware is c/o Corporation Trust
Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
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5. Members' Names and Business Addresses. The name and business
address of each Member is set forth on Schedule A attached hereto.
6. Term of the LLC. The term of the LLC shall commence upon the
filing of a Certificate of Formation in the Office of the Secretary of State
of the State of Delaware. The term shall continue in perpetuity until the LLC
is terminated by agreement of the Members, unless earlier dissolved upon the
occurrence of an event of dissolution under Section 18-801 of the Act
(provided that, following the occurrence of such event, the LLC may be
continued pursuant to Section 12 of this Agreement or pursuant to the Act).
7. Capital Contributions; Capital Accounts; and Liability of Members.
(a) Each Member has contributed the cash or property to the
capital of the LLC set forth opposite such Member's name on Schedule A
attached hereto. Additional capital contributions may be made by any Member
if agreed to by all Members.
Except as otherwise provided in this Section 7, no Member shall be
obligated or permitted to contribute any additional capital to the LLC. No
interest shall accrue on any contributions to the capital of the LLC, and no
Member shall have the right to withdraw or to be repaid any capital
contributed by him, her or it or to receive any other payment in respect of
its interest in the LLC, including without limitation as a result of the
withdrawal or resignation of such Member from the LLC, except as specifically
provided in this Agreement.
(b) A "Capital Account" shall be maintained for each Member and
adjusted in accordance with Regulations under Section 704 of the Internal
Revenue Code of 1986, as amended (the "Code"). To the extent consistent with
such Regulations, the adjustments to such Capital Accounts shall include the
following: there shall be credited to each Member's Capital Account the
amount of any cash or the net fair market value of any property actually
contributed by such Member to the capital of the LLC and such Member's share
of the net profits of the LLC and of any items in the nature of income or gain
separately allocated to the Members; and there shall be charged against each
Member's Capital Account the amount of any cash and the net fair market value
of any property distributed to such Member and such Member's share of the net
losses of the LLC and of any items in the nature of losses or deductions
separately allocated to the Members.
(c) The liability of the Members for the losses, debts and
obligations of the LLC shall be limited to their capital contributions;
provided, however, that under applicable law, the Members may under certain
circumstances be liable to the LLC to the extent of previous distributions
made to them in the event that the LLC does not have sufficient assets to
discharge its liabilities. Without limiting the foregoing, (i) no Member, in
his, her or its capacity as a Member shall have any liability to restore any
negative balance in his, her or its Capital Account, and (ii) the failure of
the LLC to observe any formalities or requirements relating to exercise of its
powers or management of its business or affairs under this Agreement or the
Act shall not be grounds for imposing personal liability on the Members or
managers for liabilities of the LLC.
8. Return of Contributions. The contribution of each Member is to be
returned to such Member only upon the termination and liquidation of the LLC,
but contributions may be returned prior to such time if agreed upon by all
Members.
9. Share of Net Profits, Net Losses and Cash Distributions.
(a) During the term of the LLC, the net cash flow, net proceeds
of any sale or refinancing of any property of the LLC, and any other
distributions of cash or other property of the LLC, shall be allocated among
the Members in proportion to their respective capital contributions. Subject
to the foregoing, distributions to the Members shall be made at such times and
in such amounts as the Members shall determine.
Distributions of net proceeds of liquidation of the LLC (whether of cash
or other assets) shall be distributed to all Members with positive Capital
Account balances (after such balances have been adjusted to reflect the
allocation of net profits or net losses and items thereof through the date of
liquidation pursuant to Section 9(b)), in proportion to and to the extent of
such positive balances.
A Member, regardless of the nature of his, her or its contribution to
the LLC, shall have no right to demand or receive any distribution from the
LLC in any form other than cash. The LLC may, at any time and from time to
time, make distributions in kind to the Members. If any assets of the LLC are
distributed in kind, such assets shall be distributed on the basis of their
fair market value as determined by the Members.
(b) Net profits and net losses shall, for both accounting and
tax purposes, be net profits and net losses as determined for purposes of
adjusting Capital Account balances as provided in Treasury Regulation Section
1.704-1(b)(2)(iv)(b). Net profits and net losses of the LLC shall be
allocated among the members in proportion to their respective capital
contributions. For tax purposes, all items of depreciation, gain, loss,
deduction or credit shall be determined in accordance with the Treasury
Regulations under Section 704(b) of the Code and, except to the extent
otherwise required by the Code, allocated to and among the Members in the same
percentages in which the Members share in net profits and net losses.
(c) New England Electric System shall be the "tax matters
partner" of the LLC for purposes of the Code.
(d) No Member shall have any right to distributions respecting
his, her or its membership interest (upon withdrawal or resignation from the
LLC or otherwise) except as expressly set forth in this Agreement.
10. Substitution and Assignment of a Member's Interest; Resignation.
No Member may sell, assign, give, pledge, hypothecate, encumber or otherwise
transfer, including, without limitation, any assignment or transfer by
operation of law or by order of court, such Member's interest in the LLC or
any part thereof, or in all or any part of the assets of the LLC, or resign
from the LLC, in each case without the unanimous written consent of all of the
other Members, and any purported assignment or resignation without such
consent shall be null and void and of no effect whatsoever.
11. Admission of Additional Members. Additional Members may be
admitted to the LLC if agreed to by all Members.
12. Continuation of the LLC. To the extent permitted by applicable
law, the Members may continue the business of the LLC upon the occurrence of
any event which constitutes an event of dissolution of an LLC under the Act by
electing to do so within 90 days after the occurrence of any of such event.
Any such election shall be made by Members whose capital contributions to the
LLC represent at least a majority of the capital contributions made by all
Members.
13. Termination of Membership; Return of Capital. No Member may
resign from or terminate his or her or its membership in the LLC or have any
right to distributions respecting his, her or its membership interest (upon
withdrawal or resignation from the LLC or otherwise) except as expressly set
forth herein. No Member shall have the right to demand or receive property
other than cash in return for such Member's contribution.
14. Miscellaneous.
(a) The Members shall cause the LLC to keep just and true books
of account with respect to the operations of the LLC. Such books shall be
maintained at the principal place of business of the LLC, or at such other
place as the Members shall determine, and all Members, and their duly
authorized representatives, shall at all reasonable times have access to such
books.
(b) Such books shall be kept on the accrual method of
accounting, or on such other method of accounting as the Members may from time
to time determine, and shall be closed and balanced as of December 31 in each
year. The same method of accounting shall be used for both LLC accounting and
tax purposes. The fiscal year of the LLC shall be the calendar year.
(c) The Members shall cause the LLC to maintain one or more
accounts in a bank (or banks) which is a member of the F.D.I.C., which
accounts shall be used for the payment of the expenditures incurred by the
Members in connection with the business of the LLC, and in which shall be
deposited any and all cash receipts. All such amounts shall be and remain the
property of the LLC, and shall be received, held and disbursed by the Members
for the purposes specified in this Agreement.
(d) Subject to the restrictions on transfers set forth herein,
this Agreement, and each and every provision hereof, shall be binding upon and
shall inure to the benefit of the Members, their respective successors,
successors-in-title, heirs and assigns, and each and every successor-in-
interest to any Member, whether such successor acquires such interest by way
of gift, purchase, foreclosure or any other method, shall hold such interest
subject to all of the terms and provisions of this Agreement.
(e) No change, modification or amendment of this Agreement shall
be valid or binding unless such change, modification or amendment shall be in
writing and duly executed by all of the Members.
(f) This Agreement and the rights and obligations of the parties
hereunder shall be governed by and interpreted, construed and enforced in
accordance with the laws of the State of Delaware.
(g) This Agreement may be executed in a number of counterparts,
all of which together shall for all purposes constitute one Agreement, binding
on all the Members notwithstanding that all Members have not signed the same
counterpart.
(h) None of the provisions of this Agreement shall be for the
benefit of or enforceable by any creditor of any Member, or any creditor of
the LLC other than a Member who is such a creditor of the LLC.
(i) The Members hereby agree that no Member nor any successor-
in-interest to any Member, shall have the right while this Agreement remains
in effect to have the property of the LLC partitioned, or to file a complaint
or institute any proceeding at law or in equity to have the property of the
LLC partitioned, and each Member, on behalf of himself, his successors,
representatives, heirs and assigns, hereby waives any such right. It is the
intention of the Members that during the term of this Agreement, the rights of
the Members and their successors-in-interest, as among themselves, shall be
governed by the terms of this Agreement, and that the right of any Member or
successor-in-interest to assign, transfer, sell or otherwise dispose of his
interest in the LLC shall be subject to the limitations and restrictions of
this Agreement.
(j) This Agreement constitutes the full and complete agreement
of the parties hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Member has signed and sworn to this Agreement
under penalties of perjury as of the date first above written.
MEMBER:
New England Electric System
By:_____________________________________
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Vice President
The name "New England Electric System" means the trustee or trustees for
the time being (as trustee or trustees but not personally) under an agreement
and declaration of trust dated January 2, 1926, as amended, which is hereby
referred to, and a copy of which, as amended, has been filed with the
Secretary of the Commonwealth of Massachusetts. Any agreement, obligation or
liability made, entered into or incurred by or on behalf of New England
Electric System binds only its trust estate, and no shareholder, director,
trustee, officer or agent thereof assumes or shall be held to any liability
therefor.
SCHEDULE A
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
METROWEST REALTY, L.L.C.
MEMBER
NAME AND ADDRESS OF MEMBER CAPITAL CONTRIBUTION
New England Electric System $10
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