-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Fy2kaSBtGKTT0R8qnCtyhCRNmE2Gt4TT3IDFcEyVEO4IdGCe1RGB/7/u1KrNev1l fq0x8hlKeqssuSzw1hQY/w== 0001171520-04-000227.txt : 20040625 0001171520-04-000227.hdr.sgml : 20040625 20040625153252 ACCESSION NUMBER: 0001171520-04-000227 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 20040625 GROUP MEMBERS: SILVERSTEIN INVESTMENTS LP III SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FRANKLIN STREET PROPERTIES CORP /MA/ CENTRAL INDEX KEY: 0001031316 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 042724223 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-79072 FILM NUMBER: 04882102 BUSINESS ADDRESS: STREET 1: 401 EDGEWATER PL STREET 2: STE 200 CITY: WAKEFIELD STATE: MA ZIP: 01880 BUSINESS PHONE: 7815571300 MAIL ADDRESS: STREET 1: 401 EDGEWATER PLACE STREET 2: STE 200 CITY: WAKEFIELD STATE: MA ZIP: 01880 FORMER COMPANY: FORMER CONFORMED NAME: FRANKLIN STREET PARTNERS LP DATE OF NAME CHANGE: 20010301 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SILVERSTEIN BARRY CENTRAL INDEX KEY: 0001240924 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 401 EDGEWATER PLACE STREET 2: STE 200 CITY: WAKEFIELD STATE: MA ZIP: 01880 BUSINESS PHONE: 7815571300 MAIL ADDRESS: STREET 1: 401 EDGEWATER PLACE STREET 2: STE 200 CITY: WAKEFIELD STATE: MA ZIP: 01880 SC 13D 1 eps1409.txt BARRY SILVERSTEIN UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 Franklin Street Properties Corp. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $.0001 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 35471F102 -------------- (CUSIP Number) Barry Silverstein 5111 Ocean Boulevard, Suite C Sarasota, FL 34242 (941) 349-9200 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) June 1, 2003 ------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box |X|. NOTE: Schedules filed in paper format should include a signed original and five copies of the schedule, including all exhibits. See ss. 240.13d-7(b) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). - ----------------------------------- CUSIP No. 35471F102 13D - ----------------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Silverstein Investments Limited Partnership III 04-3531703 - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a)|_| (b)|X| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) OO - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |_| - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 3,128,206.86 NUMBER OF ------------------------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY EACH ------------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH ------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 3,128,206.86 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,128,206.86 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| (See Instructions) - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.3% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) PN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 1 NAMES OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (entities only) Barry Silverstein - -------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a)|_| (b)|X| - -------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------- 4 SOURCE OF FUNDS (See Instructions) OO - -------------------------------------------------------------------------------- 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) |_| - -------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION USA - -------------------------------------------------------------------------------- 7 SOLE VOTING POWER 1,141,463.75 NUMBER OF ------------------------------------------------------------------- SHARES 8 SHARED VOTING POWER BENEFICIALLY OWNED BY 24,418.40 EACH ------------------------------------------------------------------- REPORTING 9 SOLE DISPOSITIVE POWER PERSON WITH 1,141,463.75 ------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER 3,657,709.76 - -------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,799,173.51 - -------------------------------------------------------------------------------- 12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| (See Instructions) - -------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.7% - -------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON (See Instructions) IN - -------------------------------------------------------------------------------- SCHEDULE 13D This Schedule 13D amends a Schedule 13G filed on June 11, 2003. Based on the advice of current counsel, Silverstein Investments Limited Partnership III and Mr. Silverstein are filing this Schedule 13D to amend and supplement the information as to the transactions previously reported on a Schedule 13G and to report the creation of trusts for the benefit of Barry Silverstein's children. Item 1. Security and Issuer. This statement on Schedule 13D (this "Statement") relates to the common stock, par value $.0001 per share (the "Common Stock"), of Franklin Street Properties Corp., a Maryland corporation ("FSP Corp."). The principal executive offices of FSP Corp. are located at 401 Edgewater Place, Suite 200, Wakefield, MA 01880-6210. Item 2. Identity and Background. Silverstein Investments Limited Partnership, III is a Delaware limited partnership with its principal business address located at 40 Harvestwood Drive, West Bridgewater, MA 02379 ("SILP III"). SILP III's principal business office is 40 Harvestwood Drive, West Bridgewater, MA 02379. The principal business of SILP III is investing in securities for its own account. S.B. Investment Management, Inc., a Delaware corporation, is the general partner of SILP III. The principal business address and principal business office of S.B. Investment Management, Inc. is 40 Harvestwood Drive, West Bridgewater, MA 02379. The principal business of S.B. Investment Management, Inc. is to act as the managing general partner of SILP III. Steven Blechner is the president and sole executive officer and director of S.B. Investment Management, Inc. Barry Silverstein is a member of the board of directors of FSP Corp. and the limited partner of SILP III. Mr. Silverstein invests for his own account. The business address of Mr. Silverstein, who is a United States citizen, is 5111 Ocean Boulevard, Suite C, Sarasota, FL 34242. During the past five years, none of SILP III, S.B. Investment Management, Inc. or Mr. Silverstein (together the "Reporting Persons") or Mr. Blechner has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). During the past five years, none of the Reporting Persons or Mr. Blechner was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. No funds were borrowed by the Reporting Persons or any related entity for the acquisition of FSP Common Stock. On June 1, 2003, FSP Corp. completed its acquisition of thirteen real estate investment trusts (collectively, the "Target REITs"), each a Delaware corporation. The acquisitions were completed pursuant to an Agreement and Plan of Merger, dated as of January 14, 2003 (the "Merger Agreement"), by and among FSP Corp. and the Target REITs. Upon consummation of the transactions contemplated by the Merger Agreement, each Target REIT was merged with and into FSP Corp., with FSP Corp. as the surviving corporation (the "Mergers"). Under the terms of the Merger Agreement each outstanding share of preferred stock, $0.01 par value per share ("Target Stock"), of each respective Target REIT, as of June 1, 2003, was converted into a specified number of shares of Common Stock. Under the terms of the Merger Agreement each outstanding share of common stock, $0.01 par value per share, of each respective Target REIT, as of June 1, 2003, was cancelled. In connection with the Mergers, FSP Corp. reserved for issuance an aggregate of approximately 25,000,091 shares of Common Stock. Based on the capitalization of FSP Corp. as of the effective date of the Mergers, the Common Stock reserved for issuance to the Target REIT stockholders represented approximately 50.3% of the outstanding shares of FSP Common Stock. SILP III directly owned an aggregate of 439.5 shares of Target Stock prior to the Mergers. Pursuant to the Merger Agreement, such shares of Target Stock converted into 3,031,941.36 shares of FSP Common Stock upon consummation of the Mergers. SILP III also owned 1,106,434.5 shares of Common Stock prior to the Mergers. SILP III currently owns 3,128,206.86 shares of Common Stock. S.B. Investment Management, Inc., as general partner of SILP III, and Mr. Blechner, as president of the general partner of SILP III, indirectly owned an aggregate of 439.5 shares of Target Stock prior to the Mergers. Pursuant to the Merger Agreement, such shares of Target Stock converted into 3,031,941.36 shares of FSP Common Stock upon consummation of the Mergers. SILP III currently owns 3,128,206.86 shares of Common Stock. S.B. Investment Management, Inc. is also the general partner of Silverstein Investments Limited Partnership II. S.B. Investment Management, Inc., as general partner, and Mr. Blechner, as president of the general partner, indirectly own the 1,010,169 shares of Common Stock held by Silverstein Investments Limited Partnership II. S.B. Investment Management, Inc. and Mr. Blechner indirectly beneficially own a total of 4,138,375.86 shares of Common Stock. Mr. Silverstein indirectly owned an aggregate of 601.25 shares of Target Stock prior to the Mergers. Pursuant to the Merger Agreement, such shares of Target Stock converted into 4,130,961.11 shares of FSP Common Stock upon consummation of the Mergers. Mr. Silverstein was not an officer or director of any Target REIT. Mr. Silverstein's ownership is due to his participation in the following limited partnerships: o SILP III, of which Mr. Silverstein is the sole limited partner, owned 4,138,375.86 shares of Common Stock after the Mergers. On September 30, 2003, SILP III distributed 1,010,169 shares of Common Stock to Mr. Silverstein, who contributed the shares to Silverstein Investments Limited Partnership II. This transfer involved no change in beneficial ownership for Mr. Silverstein as he was the sole limited partner of Silverstein Investments Limited Partnership II. On September 30, 2003, Mr. Silverstein gifted his entire interest in Silverstein Investments Limited Partnership II to, and among, four charitable lead annuity trusts for the benefit of his children. SILP III currently owns 3,128,206.86 shares of Common Stock. o JMB Family Limited Partnership, of which Mr. Silverstein is general partner, owned 60.75 shares of Target Stock prior to the Mergers. Pursuant to the Merger Agreement, such shares of Target Stock converted into 412,650.97 shares of Common Stock. JMB Family Limited Partnership also owned 16,978 shares of Common Stock prior to the Mergers. JMB Family Limited Partnership currently owns 429,628.97 shares of Common Stock. o MSTB Family Limited Partnership, of which Mr. Silverstein is general partner, owned 91 shares of Target Stock prior to the Mergers. Pursuant to the Merger Agreement, such shares of Target Stock converted into 618,123.38 shares of Common Stock. MSTB Family Limited also owned 25,466 shares of Common Stock prior to the Mergers. MSTB Family Limited Partnership currently owns 643,589.38 shares of Common Stock. o Silverstein Family Limited Partnership 2002, Ltd., of which Mr. Silverstein is general partner, owned 10 shares of Target Stock prior to the Mergers. Pursuant to the Merger Agreement, such shares of Target Stock converted into 68,245.4 shares of Common Stock. Silverstein Family Limited Partnership 2002, Ltd. currently owns 68,245.4 shares of Common Stock. o Mr. Silverstein's spouse owned 3.5 shares of Target Stock prior to the Mergers. These shares were purchased with personal funds of $350,000. Pursuant to the Merger Agreement, such shares of Target Stock converted into 24,418.40 shares of Common Stock. In addition, pursuant to the Indenture of Trust Agreement by and between Barry Silverstein, as Grantor, and Trudy Silverstein and Dennis McGillicuddy, as Trustees, dated September 22, 2003, Mrs. Silverstein is a trustee of a charitable lead annuity trust for the benefit of their dependent children. The trust owns 50% of the limited partnership interests of Silverstein Investments Limited Partnership II, which owns 1,010,169 shares of Common Stock. Mrs. Silverstein, as trustee, has no voting power and shared dispositive power over 50% of the shares of Common Stock held by Silverstein Investments Limited Partnership II. Mr. Silverstein's spouse currently beneficially owns 529,502.9 shares of Common Stock. All descriptions of agreements filed as exhibits to this Schedule 13D are modified by the actual terms of such agreements. Item 4. Purpose of Transaction. See Item 3 above. The Reporting Persons have no present plans or proposals which relate to or would result in any of the actions enumerated in clauses (a) through (j) of Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. (a) The percentages set forth in this Item 5 are based on 49,630,338 shares of Common Stock outstanding. SILP III directly owns 3,128,206.86 shares of Common Stock representing approximately 6.3% of the outstanding Common Class. S.B. Investment Management, Inc. and Mr. Blechner indirectly own 4,138,375.86 shares of Common Stock representing approximately 8.3% of the outstanding Common Class. Mr. Silverstein indirectly owns 4,799,173.51 shares of Common Stock representing approximately 9.7% of the outstanding FSP Common Stock. (b) SILP III has sole voting power with respect to its 3,128,206.86 shares of Common Stock. S.B. Investment Management, Inc. and Mr. Blechner have sole voting and shared dispositive power with respect to 4,138,375.86 shares of Common Stock. Mr. Silverstein has sole voting power and sole dispositive power with respect to 1,141,463.75 shares of Common Stock. He has shared dispositive power and no voting power with respect to 3,128,206.86 shares of Common Stock. Mr. Silverstein may share voting power of 24,418.40 shares of Common Stock beneficially owned by his wife and dispositive power of 529,502.9 shares of Common Stock beneficially held by his wife. (c) Except as described in this Schedule 13D, there have been no transactions since June 11, 2003. (d) Various persons have the right to receive or the power to direct the receipt of dividends from, or proceeds from the sale of, shares of Common Stock beneficially owned by the Reporting Persons. Of such persons, S.B. Investment Management, Inc., as the general partner of Silverstein Investments Limited Partnership, II and SILP III, has the power to direct the receipt of dividends or the proceeds from the sale of shares of Common Stock beneficially owned by the Reporting Persons in excess of 5% of the outstanding shares of Common Stock. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. Pursuant to the Indenture of Trust Agreement by and between Barry Silverstein, as Grantor, and Trudy Silverstein and Dennis McGillicuddy, as Trustees, dated September 22, 2003, and the Indenture of Trust Agreements by and between Barry Silverstein, as Grantor, and Mark Shale Silverstein and Dennis McGillicuddy, as Trustees, dated September 22, 2003, Mr. McGillicuddy is a trustee of four charitable lead annuity trusts for the benefit of Mr. Silverstein's children. The trusts own, in the aggregate, 100% of the limited partnership interests of Silverstein Investments Limited Partnership II, which owns 1,010,169 shares of Common Stock. Mr. McGillicuddy, as trustee, has no voting power and shared dispositive power over the shares of Common Stock held by Silverstein Investments Limited Partnership II. Except as discussed in this Schedule 13D, none of the Reporting Persons is a party to any contract, arrangement, understanding or relationship with respect to any securities of the Issuer and none of the securities as to which this Statement relates is pledged or is otherwise subject to a contingency the occurrence of which would give another person voting power or investment power over such securities. Although Mr. McGillicuddy, also a director of FSP Corp., and Mr. Silverstein have had various long-term business relationships with each other, there is no understanding or agreement between Messrs. McGillicuddy and Silverstein as to voting or disposition of the Common Stock. Mr. Silverstein disclaims the existence of a Section 13 group between himself and Mr. McGillicuddy. Item 7. Material to be Filed as Exhibits. Exhibit 1 Joint Filing Agreement by and between Silverstein Investments Limited Partnership, III and Barry Silverstein, dated June 24, 2004 Exhibit 2 Agreement and Plan of Merger among Franklin Street Properties Corp. and thirteen real estate investment trusts, dated as of January 14, 2003, which is incorporated herein by reference to Exhibit 2.1 of Franklin Street Properties Corp.'s Report on Form 8-K filed on January 15, 2003 Exhibit 3 Limited Partnership Agreement of Silverstein Investments Limited Partnership, III, dated as of September 28, 2000 Exhibit 4 Limited Partnership Agreement of Silverstein Investments Limited Partnership, II, dated November 22, 1999, as amended on September 16, 2003 and June 24, 2004 Exhibit 5 Limited Partnership Agreement of JMB Family Limited Partnership, dated May 23, 2001 Exhibit 6 Limited Partnership Agreement of MSTB Family Limited Partnership, dated May 23, 2001 Exhibit 7 Limited Partnership Agreement of Silverstein Family Limited Partnership 2002, Ltd., dated May 17, 2002 Exhibit 8 Indenture of Trust for the JM Silverstein 2003 CLAT by and between Barry Silverstein, Trudy Silverstein and Dennis McGillicuddy, dated September 22, 2003 Exhibit 9 Indenture of Trust for the Mark S. Silverstein 2003 CLAT by and between Barry Silverstein, Mark Shale Silverstein and Dennis McGillicuddy, dated September 22, 2003 Exhibit 10 Indenture of Trust for the Susan S. Potter 2003 CLAT by and between Barry Silverstein, Mark Shale Silverstein and Dennis McGillicuddy, dated September 22, 2003 Exhibit 11 Indenture of Trust for the Thomas Benjamin Silverstein 2003 CLAT by and between Barry Silverstein, Mark Shale Silverstein and Dennis McGillicuddy, dated September 22, 2003 SIGNATURES After reasonable inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this Statement is true, complete and correct. Dated: June 24, 2004 By: /s/ Barry Silverstein -------------------------------- Barry Silverstein SILVERSTEIN INVESTMENTS LIMITED PARTNERSHIP III S.B. Investment Management, Inc. General Partner By: /s/ Steven Blechner -------------------------------- Steven Blechner President, S.B. Investment Management, Inc. EX-1 2 ex-1.txt Exhibit 1 JOINT FILING AGREEMENT In accordance with Rule 13d-1(k) under the Securities Exchange Act of 1934, as amended, the undersigned agree to the joint filing on behalf of each of them of a Statement on Schedule 13D (including any and all amendments thereto) with respect to the Common Stock, par value $0.0001 per share, of Franklin Street Properties Corp., and further agree that this Joint Filing Agreement shall be included as an Exhibit to such joint filings. The undersigned further agree that each party hereto is responsible for the timely filing of such Statement on Schedule 13D and any amendments thereto, and for the accuracy and completeness of the information concerning such party contained therein; provided, however, that no party is responsible for the accuracy or completeness of the information concerning any other party, unless such party knows or has reason to believe that such information is inaccurate. This Joint Filing Agreement may be signed in counterparts with the same effect as if the signature on each counterpart were upon the same instrument. IN WITNESS WHEREOF, the undersigned have executed this Agreement as of June 24, 2004. Silverstein Investments Limited Partnership, III S.B. Investment Management, Inc. Its: General Partner By: /s/ Steven Blechner ------------------------------------ Steven Blechner Its President /s/ Barry Silverstein ------------------------------------ Barry Silverstein EX-3 3 ex-3.txt Exhibit 3 LIMITED PARTNERSHIP AGREEMENT OF Silverstein Investments Limited Partnership, III a Delaware limited partnership TABLE OF CONTENTS Page No. ARTICLE I FORM AND INTERPRETATION Definitions 5 Captions and Certain Terms 9 Severability 9 Limitation of Grant 9 ARTICLE II ORGANIZATION OF PARTNERSHIP Formation, Name, Office and Registered Agent 9 Purpose of Partnership 10 Term of Partnership 11 Authorized Acts 11 Co-Ownership of Partnership Interests 12 Representations and Warranties of the Limited Partners 12 ARTICLE III PARTNERSHIP CAPITAL Capital Contributions 14 Capital Account 15 Expenses Paid by Partners 16 Loans by Partners; Restrictions on Borrowing 16 ARTICLE IV PROFITS AND LOSSES AND TAXABLE INCOME AND TAXABLE LOSS Allocations 16 ARTICLE V DISTRIBUTIONS, WITHDRAWLS AND LOANS Distributions 18 Limitation on Distributions to Partners 20 ARTICLE VI AUTHORITY, DUTIES, AND LIABILITIES OF PARTNERS Duties of Managing General Partner 20 Managing General Partner's Fees and Expenses 20 2 Authority of Managing General Partner 21 Special Limitation 22 Dealing with Affiliates 23 Indemnification of Managing General Partner 23 Liability of Limited Partners 23 Authority of Limited Partners and Non-Managing General Partners 23 ARTICLE VII TRANSFER OF PARTNERSHIP INTERESTS Limited Partners 24 Managing General Partner 24 Restriction on Transfer 24 Admission of Substitute Partner 25 Rights of Partner After Assignment and Substitution 25 Allocations and Distributions After Assignment 25 ARTICLE VIII RETIREMENT, WITHDRAWL OR REMOVAL OF PARTNERS Withdrawal of Managing General Partner or Limited Partner 26 Retirement, Removal, or Withdrawal of Managing General Partner 27 Retirement of Limited Partner 27 Rights of Partner After Retirement, Removal, or Withdrawal 27 ARTICLE IX DISSOLUTION Events of Dissolution 28 Winding Up and Distributions 28 Distribution of Liquidation Proceeds and Assets and Allocation of Gains and Losses 29 Limitation of Liability of Partners 29 Waiver of Right of Partition of Assets 29 ARTICLE X ACCOUNTING YEAR, BOOKS, RECORDS, AND REPORTS Books and Records 29 Reports 30 Bank Accounts 30 Tax Elections 30 Accounting Method and Fiscal Year 30 3 ARTICLE XI GENERAL PROVISIONS Power of Attorney 31 Partnership Contracts 31 Conveyances 31 Notices 32 Consents 32 Meetings 32 Binding Effect; Counterparts 33 Choice of Law 33 Complete Agreement; Modification 33 Evidence of Partnership Interests 33 Tax Matters Partner 34 Gender and Number 34 4 SILVERSTEIN INVESTMENTS LIMITED PARTNERSHIP III AGREEMENT This Limited Partnership Agreement ("Agreement") is entered into, pursuant to the provisions of the Delaware Uniform Limited Partnership Act, and shall be retroactively effective as of the date of filing of the Certificate of Limited Partnership with the Delaware Secretary of State, by S.B. Investment Management, Inc. with Steven Blechner as its president, whose address is 40 Harvestwood Drive, West Bridgewater, MA 02379 (as the "Managing General Partner"). Barry Silverstein, a resident of Florida, whose address is 5111 Ocean Boulevard, Suite C, Sarasota, Florida 33581, is the only limited partner in the Partnership. This Agreement is on the following terms and conditions: ARTICLE I FORM AND INTERPRETATION 1. Definitions. The following capitalized terms, as used in this Agreement and in the attached exhibits, which constitute a part of this Agreement, have the meanings ascribed to them below and include the plural as well as the singular number: "Act" means the Delaware law pertaining to Limited Partnerships, as amended, or any subsequent Delaware law concerning partnerships that are enacted in substitution for the Act. "Affiliate" of a Partner means (1) another Partner of the Partnership; (2) a legal or personal representative of any Partner; (3) the Partner's lineal descendants and spouse (other than a spouse who is legally separated from the Partner under a decree of divorce or separate maintenance); (4) a trustee of a trust for the benefit of any Person referred to in clause (1), (2) or (3); (5) a Person, other than an individual, of which 80% or more of the voting or equity interests is owned directly or indirectly by a Partner and/or one or more of the Persons referred to in clauses (1) through (4); (6) a Person owning 80% or more of the voting or equity interests of a Partner that is not an individual; or (7) a Person other than an individual, 80% or more of the voting or equity interests of which is owned by the same Person that owns 80% or more of the voting or equity interests of a Partner that is not an individual. "Agreement" means this Limited Partnership Agreement as originally executed and as subsequently amended or supplemented from time to time in accordance with section 54. "Assignment" means a sale, exchange, gift, pledge, transfer or disposition of any kind whatsoever and, in the case of a Person that is not an individual, it includes the sale, exchange, pledge, transfer or disposition of a majority of either voting control or the equity interests in such Person. 5 "Bankruptcy" means taking advantage of any bankruptcy or insolvency act (including the Bankruptcy Reform Act of 1978 or similar law, and also any proceeding under state or local insolvency or debtor relief laws), or a final adjudication of insolvency or an assignment of a major portion of a Person's assets for the benefit of creditors. "Capital Account" has the meaning set forth in section 12. "Capita1 Contribution" means the total amount of cash, and net fair market value of securities and other property contributed by a Partner to the equity of the Partnership, or agreed to be contributed by a Partner to the equity of the Partnership, pursuant to section 11(a), and reduced by any return of capital to the Partner within the meaning of section 11(c). Any reference in this Agreement to the Capital Contribution of either a Partner or an assignee of a Partner shall include the Capital Contribution of any prior Partner to whose Partnership Interest the then existing Partner or assignee succeeded. "Cash Flow" means the excess of cash derived by the Partnership from all sources, including from capital contributions, loans, sales of securities and other activities, (but excluding cash derived from the winding-up and liquidation of the Partnership pursuant to section 37) over the sum of all cash disbursements, including repayments of loans from Partners, loans to Partners for the Partnership, and distributions to Partners pursuant to section 16(a) or (b) (but excluding disbursements pursuant to section 16(c), plus a reasonable allowance for reserves for repairs, investments in Property (including Marketable Securities), replacements, contingencies and anticipated obligations (including debt service, capital improvements and replacements to the extent not funded by reserves) as reasonably determined by the Managing General Partner. Notwithstanding the preceding sentence, in determining the reasonable allowance for reserves, the Managing General Partner shall reduce such allowance to the extent necessary to ensure that annual distributions of Cash Flow to each Partner will be in an amount at least equal to the annual income tax liability (exclusive of income tax liability resulting from a transaction pursuant to section 16(b) or (c)) of each such Partner (determined assuming that the maximum possible income tax rate is applicable) resulting from the allocation to the Partner of his share of the Partnership's Taxable Income and Taxable Loss. Cash Flow is to be calculated separately for each Partner on the theory that each Partner owns the assets of the Partnership contributed by such Person directly. For this purpose, if a Partner has contributed Marketable Securities to the Partnership, such Marketable Securities (including stock dividends thereon, stock splits or other recapitalization) shall be allocated to the contributing Partner (or such Partner's assigns). In addition, Cash Flow shall be calculated and distributed separately for each of the Class A Partnership Interest and the Class B Partnership Interest and the assets of the Partnership allocated to such interests. "Class A Partnership Interest" means an interest in the Partnership represented by the Capital Account associated only with the Partnership's ownership of those assets listed on Exhibit A-1 attached hereto and made a part hereof (the "Class A Properties"), and the right to receive a percentage share of the income, gain, loss, deduction, cash and 6 other distributions and liquidation proceeds associated with such property, all subject to and interpreted in accordance with the terms of this Agreement. A Class A Partnership Interest may be expressed in units with each unit representing ownership of a one percent interest in the Class A Properties. "Class B Partnership Interest" means an interest in the Partnership represented by a partner's Capital Account relating to all assets of the Partnership other than those assets listed on Exhibit A-1 attached hereto and made apart hereof, (i.e., excluding the Capital Account relating to the Class A Properties), and the right to receive his percentage share of the income, gain, loss, deduction, cash and other distributions and liquidation proceeds of the Partnership (other than those associated with Class A Partnership Interests), all subject to and interpreted in accordance with the terms of this Agreement. "Code" means the Internal Revenue Code of 1986, as amended, or any subsequent federal law concerning income taxes that is enacted in substitution for the Code. "General Partner" Means any Person admitted as a general partner in accordance with this agreement. "General Partnership Interest" means the Partnership Interest of a Managing General Partner, in his capacity as a Managing General Partner. "Limited Partner" means any Person admitted as a limited partner in accordance with this Agreement. "Limited Partnership Interest" means the Partnership Interest of a Limited Partner, in the capacity as a Limited Partner. "Majority in Interest" when used in regard to the degree of consent, approval or agreement required among the Partners, means Partners whose aggregate Percentage Interests constitute over 50% of the total aggregate Percentage Interests then outstanding. "Managing General Partner" means the Person designated in this Agreement as the general partner responsible for management of the affairs of the Partnership, including all voting rights with respect to, and control over, Marketable Securities, and thereafter any Person which becomes a general partner responsible for management of the affairs of the Partnership pursuant to this Agreement, in the Person's capacity as a managing general partner of the Partnership. "Marketable Securities" means securities, including stock, which are traded on an established securities market, whether or not registered under the Securities Act of 1933. "Partner" means each Person which is a Managing General Partner or a Limited Partner. 7 "Partnership" means the SILVERSTEIN INVESTMENTS LIMITED PARTNERSHIP III, the limited partnership formed in accordance with the Act pursuant to this Agreement. "Partnership Interest" includes only a Partner's Capital Contribution and right to receive his Percentage Interest and excludes Partnership Rights. "Partnership Rights" excludes the Partnership Interest of a Partner, and includes, in addition to other rights provided in this Agreement, the rights provided to him by the Act except to the extent such rights are inconsistent with the provisions of this Agreement. "Percentage Interest" shall mean a partner's percentage share from time to time of the Net Profits and Net Losses, taxable income or taxable loss, Cash Receipts, cash and other distributions and liquidation proceeds of the capital of the Partnership attributable to a particular class of Partnership Interests all subject to and interpreted in accordance with the terms of this Agreement. The Percentage Interest of partners for each class of Partnership Interests shall be proportionate to the Capital Accounts of the partners in that class of Partnership Interest at all times so that, for example, if a Partner's Capital Account in one class is 100 and the aggregate of all Capital Accounts in the same class of Partnership Interest is 1000, the partner's Percentage in that class of the Partnership is 10%. Except as otherwise provided in this Agreement, in the event of a change among the partners in the Percentage Interest in the Partnership during the year, the Partnership shall use a closing-of-the-books method with respect to such change or changes in Percentage Interest in computing a partner's share of profits and losses, taxable income and taxable losses, and entitlement to distributions during such year. "Person" means any individual and any general or limited partnership, corporation, estate, joint venture, trust, business trust, cooperative, association or other organization. "Profits and Losses" means the annual net income or loss of the Partnership determined on a generally accepted accounting principles basis, as disclosed on the annual financial statements of the Partnership, except that Profits and Losses shall be computed separately for each of the Class A Partnership Interests and Class B Partnership Interests. If the Partners have elected for the Partnership to be excluded from the application of Subchapter K of Chapter 1 of the Code, the provisions relating to Profits and Losses shall be of no effect during such period at the Partnership level, but will be separately computed for each Partner. "Property" means any real, personal, tangible or intangible property contributed by a Partner to the equity of the Partnership or otherwise acquired by the Partnership. "Pro Rata" means in the proportion that the Percentage Interest of each Partner 8 bears to the total Percentage Interests of all the Partners. "Retirement" means the death, Bankruptcy, adjudication of incompetency as determined by a court of appropriate jurisdiction, dissolution and liquidation or termination of existence, merger or consolidation (except as provided in sections 33 and 34) of a Partner, or the sale, lease or other disposition of all or substantially all the property of a Partner (except as provided in sections 33 and 34). "Taxable Income or Taxable Loss" means the net income or loss of the Partnership for federal income tax purposes, as determined at the close of the Partnership's fiscal year by the accountants employed by the Partnership to prepare its income tax returns. If the Partners have elected for the Partnership to be excluded from the application of Subchapter K of Chapter 1 of the Code, the provision shall be of no effect for federal income tax purposes during such period, but will be separately computed for each Partner. 2. Captions and Certain Terms. The titles and captions preceding the text of the articles and sections of this Agreement are solely for convenience of reference and neither constitute a part of this Agreement nor affect its meaning, interpretation, or effect. The words "hereby," "herein," "hereof," "hereto," "hereunder," and terms of similar import refer to this Agreement as a whole and not to any particular article, section, subsection or other part of this Agreement. 3. Severability. If any article, section or other provision of this Agreement, or its application, is held to be invalid, illegal or unenforceable in any respect or for any reason, the remainder of this Agreement and the application of such article, section or other provision to a person or circumstance with respect to which it is valid, legal and enforceable is not affected. 4. Limitation of Grant. Nothing in this Agreement, whether express or implied, is intended or may be construed to confer upon, or to grant to, any creditor or any other Person (other than the Partners and their legal and personal representatives, heirs, successors and permitted assignees) any right, remedy or claim under or because of this Agreement or any covenant, condition or stipulation of it. ARTICLE II ORGANIZATION OF PARTNERSHIP 5. A. Formation, Name, Office and Registered Agent. The Partnership was organized as of the effective date of this Agreement and the signatories to this Agreement constitute the members of this Partnership under the Act as of such date and as of the date hereof. The rights and obligations of the Partners are determined by the Act, except as otherwise expressly provided in this Agreement. The name of the Partnership is "SILVERSTEIN INVESTMENTS LIMITED PARTNERSHIP III." The record keeping office of the Partnership and its principal place of business are located at 9 the residence of the Managing General Partner where the Managing General Partner performs administrative services on behalf of the Partnership. The Partnership does not have a principal business office. The Managing General Partner may change the name of the Partnership or may designate the location of its principal business office at any time and from time to time by giving written notice of such change to each Partner. The registered agent and registered office of the Partnership is The Corporation Trust Company, 1209 Orange Street, Wilmington, DE 19801. B. General and Limited Partners. S.B. Investment Management, Inc. with Steven Blechner as its president is the initial General Partner of the Partnership. The limited partner of the Partnership is Barry Silverstein. C. Certificate of Limited Partnership. In connection with the execution of this Agreement, the Managing General Partner signed a certificate of limited partnership, pursuant to the Act. The Managing General Partner shall cause the certificate to be filed with the Delaware Secretary of State. The certificate also has been amended to implement the change in General Partners. The Managing General Partner shall amend the certificate when required under this Agreement and shall execute the amended certificate as required by the Act. 6. Purpose of Partnership (a) Except as provided in 6(c) below, the purposes of the Partnership are to: (i) invest in, own, sell, acquire, manage and exercise the voting rights associated with Marketable Securities, (ii) after approval by a Majority in Interest, acquire, hold, sell, own, improve, develop or lease other types of property in addition to Marketable Securities, and (iii) engage in any other lawful activity for profit approved by an affirmative vote of a Majority in Interest. (b) Notwithstanding Section 6(a), unless unanimously approved by the Partners, the Partnership shall not engage in any activity(ies) which would result, based upon opinion of tax counsel, in the characterization of the Partnership as an investment company as that term is used in Section 721(b) or any successor provision of the Code. (c) Subsequent to the date of commencement of existence of the Partnership, the Partners may make the election set forth in Treas. Reg. ss. 1.761-2 to have the Partnership excluded from the application of Subchapter K of Chapter 1 of the Code until such time as a Majority in Interest determine to have the Partnership engage in an activity other than investing in Marketable Securities and other intangible assets. Until 10 such time as the Partnership engages in other than investment activities, and if the aforementioned election is made, it is the intention of the Partners that the Partnership shall be only for investment purposes and shall not actively conduct business. It is the intention of the Partners that the Partnership shall have legal title to, and ownership of, Marketable Securities so as to effectuate the co-ownership of the Marketable Securities by the Partners. As is evidenced by various provisions of this Agreement, each Partner reserves the right separately to take or dispose of their shares or interests in the Marketable Securities and the other assets contributed by such Partner to the Partnership. Further, during the period Subchapter K does not apply to the Partnership, this Agreement is to be interpreted in a manner that will give effect to such election. 7. Term of Partnership. The term of the Partnership shall continue until the earlier of (i) December 31, 2020, or (ii) the death or adjudication of incompetency as determined by a court of appropriate jurisdiction of Barry Silverstein, unless the Partnership is earlier dissolved and terminated under this Agreement. 8. Authorized Acts. In furtherance of its purposes, but subject to every other provision of this Agreement, the Partnership, through, and only through, the actions of the Managing General Partner acting alone, is authorized to do the following: (a) acquire by purchase, lease or otherwise, any real or personal, tangible or intangible property that may be necessary, convenient or incidental to the accomplishment of the purposes of the Partnership; (b) construct, operate, maintain, finance, improve, own, sell, convey, exchange, assign, mortgage or lease any property (or a part thereof) as may be necessary, convenient or incidental to the accomplishment of the purposes of the Partnership; (c) borrow money and issue evidences of indebtedness in furtherance of any purpose of the Partnership and secure the same by a mortgage, pledge, security interest or other liens on the property, any part thereof, any interest therein or on any improvements thereto; (d) prepay, in whole or in part, refinance, increase, renew, modify or extend any indebtedness of the Partnership and, in connection therewith, extend, renew or modify any mortgage, pledge, security interest or other lien affecting any property; (e) invest and reinvest the assets of the Partnership in, and purchase, acquire, hold, sell, transfer and exchange securities of all kinds, including Marketable Securities; (f) lend money to Partners; (g) exercise the voting rights associated with property owned by the Partnership; and 11 (h) enter into any activity and perform and carry out any contract in connection with, or necessary or incidental to, the accomplishment of the purposes of the Partnership. 9. Co-Ownership of Partnership Interests. Any consent required by a Partner shall require the action or vote of each Person (or in such other manner as such Persons have designated in writing to the Partnership) having an interest in such Partnership Interest, with a majority approval needed for consent. On the death of a co-owner of a Partnership Interest held in either joint tenancy with right of survivorship or tenancy by the entirety, the Partnership Interest is owned solely by the survivor as a Partner, and not as an assignee. The Partnership need not (although it may) recognize the death of a co-owner of a Partnership Interest until the Managing General Partner receives notice of the death. A co-owner of a Partnership Interest may sever the tenancy by giving to the Managing General Partner notice to that effect, and signed by the co-owner requesting the severance in the case of a joint tenancy, and by both co-owners in the case of a tenancy by the entirety. Upon receipt of the notice and the certificate evidencing the Partnership Interest owned by the co-owners, the Managing General Partner shall cause the Partnership Interest to be allocated as directed by the co-owners and shall indicate on the Partnership records such allocation. In absence of joint direction, the interests shall be allocated between the owners as the severed ownership interests would be valued for federal estate tax purposes. 10. Representations and Warranties of the Limited Partners. As a condition to becoming a Limited Partner of the Partnership, each Limited Partner represents, warrants, and covenants to each Managing General Partner and the Partnership as follows: (a) He will not assign, sell, mortgage, pledge, or otherwise transfer or encumber any of his rights under this Agreement except as expressly permitted under this Agreement and applicable laws; (b) He was granted full and unrestricted access to the Partnership's business premises, offices and properties and its business, partnership and financial books and records as he required, and was permitted to examine the foregoing, to question the Managing General Partner, and to make all other investigations that he considered appropriate to determine or verify the business or condition (financial or otherwise) of the Partnership and to consummate the transactions contemplated by this Agreement; (c) The Partnership furnished him all additional information concerning the Partnership's business and affairs that he requested; (d) He was permitted to ask questions of, and to receive answers from, the Managing General Partner concerning the terms and conditions of an investment in a Limited Partnership Interest, and to obtain all additional information he considered necessary to verify the accuracy of the information received by him from the Managing 12 General Partner, and he understands the risks associated with an investment in the Partnership and that such an investment is highly speculative; (e) Because of his considerable knowledge and experience in financial and business matters in general and securities investments in particular, he is able to evaluate the merits, risks, and other factors bearing on the suitability of a Limited Partnership Interest as an investment; (f) His income and net worth are such that he is not now, and does not contemplate being, required to dispose of any investment in the Partnership to satisfy any existing or expected obligation, and he is otherwise fully able to bear the economic risks of his proposed investment in the Partnership, including the risk of losing all or any part of his investment in the Partnership and the probable inability to sell, transfer, or pledge, or otherwise dispose of an investment in the Partnership for an indefinite period; (g) He is acquiring a Limited Partnership Interest solely for his own account, as principal, for investment purposes and not with a view to or for resale in connection with any distribution or underwriting of any Partnership Interests; (h) He understands that the Limited Partnership Interest that he will purchase has not been and will not be registered under either the Securities Act of 1933 or any state securities law, that he must hold the Limited Partnership Interest indefinitely unless the Partnership Interests are subsequently registered under those laws or transferred in reliance on advice of counsel satisfactory to the Partnership that registration under those laws is not required, and that stop-transfer instructions will be noted in the appropriate records of the Partnership; (i) He understands that the document evidencing a Limited Partnership Interest acquired by him will bear the following legend: These securities have not been registered under either the Securities Act of 1933 or any state securities law and were acquired pursuant to an investment representation by the record owner. These securities are not transferable absent either registration under the Act and every applicable state securities law or advice of counsel satisfactory to the Partnership that registration in not required. Additionally, these securities are subject to certain transfer restrictions set forth in the Limited Partnership Agreement of the Partnership. Reference may be made to the Limited Partnership Agreement for the details of those restrictions. (j) He understands that a legend substantially identical to the one described above will be placed on every new document issued upon a transfer of a Limited Partnership Interest; 13 (k) He shall not sell, transfer, pledge, or otherwise dispose of any part of his Limited Partnership Interest, unless the Partnership Interests are registered under the Securities Act of 1933 and under every applicable state securities law or unless the Partnership is furnished with advice of counsel satisfactory to it that registration under those laws is not required; and (l) He understands that the Partnership does not file periodic reports with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934. ARTICLE III PARTNERSHIP CAPITAL 11. Capital Contributions. (a) Upon executing this Agreement, each Partner shall make or has made a Capital Contribution in the amount and of the type, and initially shall have a Percentage Interest equal to the percentage, set forth opposite his name on Exhibit A. Partners may make (but Limited Partners are not required to make) additional Capital Contributions at such time and in such amount as they in their sole discretion shall determine but only if the Managing General Partner and a Majority in Interest consent to such additional Capital Contributions. Upon the assignment of any Partnership Interest, the making of an additional Capital Contribution or any return of a Capital Contribution, or any substitution of a Partner, Exhibit A shall be amended to accurately reflect the name, address, Capital Contribution and Percentage Interest of each Partner. Each Partner will also be assigned either or both a Class A and Class B Partnership Interest depending on the assets contributed by each Partner and as they shall mutually agree at the time of contribution. (b) Notwithstanding (a) above, no Capital Contributions shall be made or permitted by any Partner which would result, directly or indirectly, in the Partnership being treated as an investment company under section 721(b) of the Code, and any such attempted Capital Contribution shall be void ab initio. The Managing General Partner shall withhold its consent to the making of an additional Capital Contribution, unless it has satisfied itself (by seeking advice of legal counsel or otherwise) that the making of the additional Capital Contribution will not result, directly or indirectly, in the Partnership being treated as an investment company under section 721(b) of the Code. (c) A Partner shall not receive from the Managing General Partner or out of Partnership Property, and the Managing General Partner and the Partnership shall not return to a Partner, any part of his Capital Contribution, except as set forth in Articles V, VIII and IX of this Agreement and such distribution is determined to be a return of a Partner's Capital Contribution, and then only if all liabilities of the 14 Partnership, except liabilities to the Partners on account of their Capital Contributions, have been paid or there remains property of the Partnership sufficient to pay them. The Partnership shall not pay interest on Capital Contributions, and, a Partner may demand and receive only cash in return for his Capital Contribution, except to the extent provided for in Articles V and IX of this Agreement or unless the Liquidator (as defined in section 37) decides to distribute Partnership property in kind upon the dissolution, winding-up, and termination of the Partnership, or unless the distribution of property to a Partner is unanimous1y approved by the Partners. Each Partner, by signing this Agreement or a counterpart of it, consents to all distributions authorized by this Agreement and releases all other Partners from all liability to both him and the Partnership for all distributions made in accordance with this Agreement. 12. Capital Account (a) The Managing General Partner shall establish and maintain a Capital Account for each Partner in the Partnership's books of account. Capital Accounts shall be maintained and adjusted in accordance with generally accepted accounting principles. A Limited Partner shall not be obligated to restore a deficit balance in its Capital Account, except to the extent required by the Act. Consistent with these capital account maintenance rules, the Managing General Partner shall credit to each Partner's Capital Account the amounts of the Partner's Capital Contributions and any Profits allocated to the Partner. The Managing General Partner shall charge to or deduct from each Partner's Capital Account the amounts of all distributions (in cash or other property) or the Partner and any Losses allocated to the Partner. If any interest in the Partnership is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferror to the extent it relates to the transferred interest. (b) The provisions of this section and the other provisions of this Agreement pertaining to the maintenance of Capital Accounts are intended to comply with Treasury Regulation Section 1.704-1(b) (or any successor provision thereto), and shall be interpreted and applied in a manner consistent with such Regulations. In the event that Managing General Partner determines that it is prudent to modify the manner in which the Capital Accounts are computed in order to comply with such Regulations, provided that it is not likely to have a material effect on the amounts distributable to any Partner without such Partner's consent and upon receipt of an opinion of tax counsel to the Partnership concluding that such modification will be given effect for federal income tax purposes, the Managing General Partner may make such modification. (c) The Managing General Partner shall revalue the Partnership's Property (based on its fair market value as of the moment immediately preceding the relevant event) and shall adjust Capital Accounts to take into account any resulting Profit or Loss (determined as if the Partnership sold all its Property for cash equal to the Property's fair market value) upon the occurrence of either of the following events: (1) the making by any Partner of any non-Pro Rata additional Capital Contribution, (2) the partial or complete withdrawal of a Partner's Partnership Interest, or (3) the admission of a Partner. 15 (d) For the purposes of determining Percentage Interests, making allocations and distributions pursuant to Articles IV and V, and wherever else relevant in this Agreement, multiple Capital Accounts shall be maintained for each Partner who owns more than one class of Partnership Interest. A combined Capital Account shall also be maintained for each Partner who has more than one class of Partnership Interest. The combined Capital Account shall be relevant for determining the total amount of distributions to a Partner in the event of the liquidation of the Partnership. In the event that a Partner with more than one class of Partnership Interest has a positive combined Capital Account balance at the time of the liquidation of the Partnership, but has a deficit in one of the separate Capital Accounts, liquidating distributions shall be made only to the extent of the net positive balance. 13. Expenses Paid by Partners. Any Partnership expense reasonably paid by any Partner on behalf of the Partnership is an indebtedness of the Partnership to the Partner and does not increase the Partner's Partnership Interest or Percentage Interest. The Partnership shall reimburse the Partner as soon as practicable and may pay interest on the indebtedness. 14. Loans by Partners; Restrictions on Borrowing. The Managing General Partner may borrow money on behalf of the Partnership from any Partner in such amounts and for such purposes as it considers necessary, convenient or incidental to the accomplishment of the purposes of the Partnership. Each loan to the Partnership by a Partner (excluding reimbursable expenses) shall be evidenced by a promissory note or similar instrument of the Partnership, may be secured by a lien on the Property, may bear interest at a rate determined by agreement between such Partner and the Managing General Partner and may be subject to such other terms and conditions as are agreed to by such Partner and the Managing General Partner. The Partnership may prepay each loan from a Partner in whole or in part, at any time and from time to time, without premium or penalty. The Managing General Partner may not borrow money from persons other than Partners or pledge Partnership assets without the express written consent of the non-managing general partner. ARTICLE IV PROFITS AND LOSSES AND TAXABLE INCOME AND TAXABLE LOSS 15. Allocations. (a) Allocation of Profits and Losses. (i) Profits and Losses of the Partnership shall be determined for each fiscal year of the Partnership in accordance with the cash method of accounting, with such exceptions thereto as are set forth in this Agreement, and otherwise in 16 accordance with generally accepted accounting principles applied in a consistent manner. (ii) Except as otherwise provided, the Partnership's Losses, if any, arising in a fiscal year shall be allocated among the Partners as follows: (1) FIRST: To the extent of the aggregate positive Capital Account balances of the Partners as of the end of the fiscal year, Pro Rata to the Partners taking into account any changes in Partnership Percentage Interests during the fiscal year. (2) SECOND: Pro Rata, to the Managing General Partner. (iii) Profits arising in a fiscal year shall be allocated among the Partners as follows: (1) FIRST: To the Managing General Partner until Profits allocated to the Managing General Partner during the term of the Partnership pursuant to this Section 15(a)(ii)(1) equal Losses allocated to the Managing General Partner during the term of the Partnership pursuant to Section 15(a)(ii)(2) then (2) SECOND: To the Partners Pro Rata taking into account any changes in Partnership Percentage Interests during the fiscal year. (b) Allocation of Taxable Income and Taxable Loss. (i) Except as otherwise provided in this section l5(b), allocations of tax items among the Partners shall be consistent with corresponding book (Profits and Losses) items (if any). For tax purposes, Profits and Losses, or any item thereof, shall be appropriately adjusted to reflect Taxable Income and Taxable Loss, or any item thereof, as determined under the Code and shall be allocated among the Partners in such a manner as to comply with the provisions of the Code and Regulations thereunder (including, if necessary, the "minimum gain chargeback provisions" of the Regulations under Section 704 of the Code). For example, any gain or loss recognized by the Partnership with respect to property contributed to the Partnership by a Partner shall be shared among the Partners so as to take account of the variation, if any, between the basis of the property to the Partnership and its fair market value at the time of contribution or revaluation, whichever is applicable, so as to comply with the requirements of Section 704 of the Code. Thus, for example, if a Partner contributes Property to the Partnership whose agreed fair market value exceeds its adjusted basis in the hands of the contributing Partner ("built-in gain"), and there have been no events giving rise to a revaluation, built-in gain with respect to such contributed Property shall first be allocated to such contributing Partner when the Partnership recognizes gain upon a disposition of such contributed Property, but not in an amount in excess of such built-in gain; the remaining balance of such recognized gain, if any, shall be allocated among the Partners as set forth herein. The allocation of built-in gain to a contributing Partner shall not increase such Partner's Capital Account, because such gain was already taken into 17 account when the built-in gain property was contributed to the Partnership. A Partner who contributes property other than cash shall provide the Managing General Partner with information necessary to verify the contributing Partner's adjusted tax basis in the items of property contributed by him to the Partnership. (ii) Generally, except as provided in section l5(b)(i), Taxable Income and Taxable Loss (and each such income and loss item) shall be allocated Pro Rata among the Partners. In the event, however, that non-Pro Rata distributions of property are made to a Partner or the net proceeds from the sale of property are distributed non-Pro Rata to a Partner, Taxable Income and Taxable Loss derived from such distributions or sales shall be allocated 100% to such Partner, subject only to such modifications as are necessary to comply with Section 704 of the Code. In addition, no allocations of Taxable Loss shall be made to a Limited Partner that would create a deficit balance in the Limited Partner's Capital Account. ARTICLE V DISTRIBUTIONS, WITHDRAWALS AND LOANS 16. Distributions (a) Cash Flow Distributions. Cash Flow is to be distributed periodically as the Managing General Partner shall determine. (b) Partial or Complete Withdrawal by a Partner From the Partnership. (i) In the event of a partial or complete withdrawal of a Partner from the Partnership pursuant to Article VIII, the Managing General Partner shall, as promptly as is reasonably possible, distribute to the Partner any assets then owned by the Partnership that were previously contributed by such Partner to the Partnership but this distribution shall be limited to the extent it would cause the Capital Account of such Partner to be negative. If the Partner has a positive Capital Account balance, then the Partnership shall distribute to the Partner his Pro Rata share of the Marketable Securities, cash and other readily divisible assets of the Partnership. The withdrawing Partner shall also be entitled to receive cash equal in value to his Pro Rata share of the fair market value (as reasonably determined by the Managing General Partner) of any non-readily divisible assets owned by the Partnership. The Managing General Partner shall, as promptly as possible, distribute this additional amount of cash, if any, to the withdrawing Partner. Cash distributions to the withdrawing Partner shall be reduced by such Partner's Pro Rata share of the liabilities of the Partnership and by any expenses incurred by the Partnership with respect to the withdrawal of the Partner. (ii) A Partner may request that all or a portion of the Marketable Securities subject to the requested withdrawal be sold by the Partnership 18 and the net proceeds (after selling and other expenses) distributed as directed by him. In the event that the Managing General Partner is unable or unwilling to sell these Marketable Securities, it shall distribute them to the Partner, unless it is notified by the Partner to cancel the withdrawal. (iii) The Managing General Partner shall not be required to distribute to the requesting Partner any assets that the Partnership is legally restricted or prohibited from distributing to the Partner, unless steps can be taken to remove the restriction or prohibition; in which case the requesting Partner shall be charged with the expense of removing such restriction or prohibition. Any distribution hereunder shall also be subject to the limitations set forth in sections 11(c) and 17, respectively. (c) Liquidating Distributions. The net proceeds from liquidation of the Partnership's assets pursuant to its dissolution, winding-up, and termination shall be distributed, and all Profits and Losses resulting from the liquidation of the Partnership Property shall be allocated, among the Partners in the proportions and orders of priority specified in this section 16(c). (i) The Liquidator shall distribute the net proceeds from liquidation of the Partnership's assets as follows: (1) FIRST: To pay all the liabilities of the Partnership that are then due and payable, except for both Capital Contributions of Partners and liabilities to the Partners, in the order of priority required by Delaware law; then (2) SECOND: To establish any reasonable reserve that the Liquidator may determine is required for unpaid, future, or contingent liabilities or obligations of the Partnership; then (3) THIRD: To pay all liabilities of the Partnership to the Partners; Pro Rata according to the amounts of their respective liabilities; then (4) FOURTH: To the Partners to the extent of any positive balances in their Capital Accounts, Pro Rata according to the amounts of their respective positive balances; then (5) FIFTH: Any remaining net proceeds shall be distributed Pro Rata among the Partners. (ii) Any Profits and Losses and Taxable Income and Taxable Loss resulting from the disposition of the Partnership's assets in the process of liquidation shall be allocated among the Partners in the manner provided in section l5. Any Property distributed in kind in the liquidation shall be valued and treated as if the 19 Property were sold and the cash proceeds were distributed. The Profits and Losses arising from the constructive sale of the Property described in the preceding sentence shall be allocated among the Partners in the manner provided in section 15. 17. Limitation on Distributions to Partners. A Partner may receive distributions from the Partnership only to the extent the Partnership's total assets exceed its total liabilities, other than liabilities to the Partners on account of their Capital Contributions. ARTICLE VI AUTHORITY, DUTIES, AND LIABILITIES OF PARTNERS 18. Duties of Managing General Partner. The Managing General Partner, and no other Partners, shall manage the affairs of the Partnership, shall apply himself diligently for the Partnership, and shall devote to the Partnership such time as is necessary and appropriate to manage the business of the Partnership. The Managing General Partner is not required to devote all its business time to the Partnership, and it may engage in other business ventures and employment, including those in competition with the Partnership. In the performance of its duties, the Managing General Partner may hire employees and agents of the Partnership and generally shall supervise and direct all the daily operations of the Partnership. 19. Managing General Partner's Fees and Expenses. (a) Fees to Managing General Partner. In consideration for performing services described herein, the Managing General Partner may be paid a fee as agreed to by a Majority in Interest. Such fees shall be deemed earned when the services have been performed and, regardless of when paid, shall be non-executory from the date earned and shall be the obligation of the Partnership from and after that date. (b) Expenses. Except as otherwise provided herein, the Partnership shall pay all expenses of the Partnership (which expenses may be either billed directly to the Partnership or reimbursed to the Managing General Partner) which may include, but are not limited to: (i) all costs of borrowed money, taxes and assessments on the Property and other taxes applicable to the Partnership; (ii) all costs for goods and materials, whether purchased by the Partnership directly or by the Managing General Partner on behalf of the Partnership; (iii) legal, audit, accounting, brokerage and other professional fees; (iv) fees and expenses paid to independent contractors, mortgage bankers, brokers, insurance brokers and other agents; (v) expenses of organizing, revising, amending, converting, modifying or terminating the Partnership; (vi) expenses in connection with distributions made by the Partnership to, and communications and bookkeeping work necessary in maintaining relations with, Partners; (vii) expenses in connection with preparing and mailing reports to Partners; (viii) costs of any accounting, statistical or 20 bookkeeping equipment necessary for the maintenance of the books and records of the Partnership; (ix) the cost of preparation and dissemination of informational material and documentation relating to the Partnership; (x) except with respect to litigation solely among the Partners as such, costs incurred in connection with any litigation in which the Partnership is involved, as well as in the examination, investigation or other proceedings, conducted against the Partnership by any regulatory agency, including legal and accounting fees incurred in connection therewith; (xi) costs of any computer services or equipment or services of personnel used for or by the Partnership; and (xii) expenses of professionals employed by the Partnership in connection with any of the foregoing, including attorneys, accountants and appraisers. 20. Authority of Managing General Partner. Except as otherwise provided herein, the Managing General Partner may bind the Partnership to do all acts that are necessary, appropriate, or incidental to the accomplishment of the purposes of the Partnership. Any person dealing with the Partnership or the Managing General Partner may rely on a certificate signed by the Managing General Partner as to the identity of any Partner, the existence or absence of any fact or condition that is necessary to permit action by either the Partnership or the Managing General Partner or germane in any other way to the affairs of the Partnership, and the persons who are authorized to execute and deliver any documents or instruments of or on behalf of the Partnership. Without limiting the generality of the foregoing, the Managing General Partner is specifically authorized to do the following: (a) to negotiate and enter into leases and agreements with land or building owners or other Persons, and to incur obligations for, and on behalf of, the Partnership in connection with Partnership business; (b) to borrow money on behalf of the Partnership and, as security therefore, to encumber the Property; (c) to prepay, in whole or in part, refinance, increase, modify or extend any obligation affecting the Property; (d) to sell, exchange, convey and lease the Property; (e) to employ from time to time, at the expense of the Partnership, other Persons required for the operation and management of the Partnership business, including accountants, attorneys and others, who may be Partners, on such terms and for such compensation as the Managing General Partner determines to be reasonable and this may include Persons which are Affiliates; (f) to pay all attorney's and accountant's fees and other costs incurred in connection with the formation of the Partnership business and the completion of all steps necessary or advisable for the Partnership to comply with applicable laws; (g) to assume the responsibilities imposed on the Managing General 21 Partner by the Act; (h) to compromise, arbitrate or otherwise adjust claims in favor of or against the Partnership and to carry such insurance as the Managing General Partner considers advisable; (i) to exercise the voting rights associated with the securities and other Property owned by the Partnership; (j) to commence or defend litigation with respect to the Partnership or any assets of the Partnership as the Managing General Partner considers advisable, at the expense of the Partnership; (k) to make, execute, acknowledge and deliver documents of transfer and conveyance and any other instruments that may be necessary or appropriate to carry out its powers; and (l) to do all such acts and take all such proceedings and execute all such rights and privileges, although not specifically mentioned herein, as the Managing General Partner considers necessary to conduct the business of the Partnership and to carry out the purposes of the Partnership. Notwithstanding the foregoing, the Managing General Partner shall not take any of the fo11owing actions without the consent of a Majority in Interest: (1) assign all or any part of the property for the benefit of its creditors or confess a judgment against the Partnership; (2) take any action in contravention of the Act, the certificate of limited partnership or this Agreement; (3) sell, lease, transfer, assign, pledge or encumber the property of the Partnership (except with respect to transactions to which section 32 or section 37 applies); (4) loan an amount of money in excess of $100,000 to a Partner; or (5) admit a Person as a Managing General Partner of the Partnership. 21. Special Limitation. During the period the Partners have determined that the Partnership will only be availed of only for investment purposes, which shall be the period, if any, contemplated by Section 6(c), the Managing General Partner may not purchase, sell, or exchange Marketable Securities or assets that pertain to a Class B Partnership Interest without the consent of the Partners to whom the Marketable 22 Securities are deemed owned or allocated for federal income tax purposes, but the Managing General Partner shall have voting rights and all other aspects of management and control over such Marketable Securities and assets to which a Class B Partnership Interests pertains. 22. Dealing with Affiliates. The Managing General Partner may employ and enter into contracts and other arrangements with any Person, including an Affiliate, and may obligate the Partnership to pay reasonable compensation for services rendered by such Persons on terms that, in the judgment of the Managing General Partner, are not less favorable to the Partnership than would be available from an unrelated party. 23. Indemnification of Managing General Partner. The Managing General Partner need not secure the performance of its duties by bond or otherwise. A Managing General Partner is not liable, responsible, or accountable in damages or otherwise to any Partner or to the Partnership for any act taken or omission made in good faith on behalf of the Partnership and in a manner that such Managing General Partner reasonably believes to be within the scope of the authority granted to it by this Agreement and in the best interest of the Partnership, except for gross negligence or willful misconduct. Any loss, expense (including attorneys' fees) or damage incurred by a Managing General Partner by reason of any act or omission by it in good faith on behalf of the Partnership and in a manner that it reasonably believes to be within the scope of the authority granted to it by this Agreement and in the best interest of the Partnership (but not, in any event, any loss, expense or damage incurred by a Managing General Partner by reason of gross negligence or willful misconduct) shall be paid to the indemnified Managing General Partner from the Partnership's assets, to the extent available. 24. Liability of Limited Partners. The liability of each Limited Partner is limited to its Capital Contributions. Except as provided by the Act, a Limited Partner is not required to contribute money to, or for the liabilities of the Partnership, and is not personally liable for any loss, liability or other obligations of the Partnership. 25. Authority of Limited Partners and Non-Managing General Partners. The Limited Partners shall not participate in the management of, or have any control over, the business or policies of the Partnership, nor any control over Marketable Securities, except as required by the Act or permitted by section 20, and the Limited Partners shall not transact any business in the name of the Partnership. Notwithstanding the foregoing, the Partners may make the election set forth in Treas. Reg. ss. 1.761-2 to have the Partnership excluded from the provisions of Subchapter K of Chapter 1 of the Code. In the event a Partner ceases (whether through removal, death, or resignation) to serve as Managing General Partner, a Majority in Interest of the Partners shall appoint another Partner to serve as the Managing General Partner. 23 ARTICLE VII TRANSFER OF PARTNERSHIP INTERESTS 26. Limited Partners. A Limited Partner shall not pledge, encumber or hypothecate his interest in the Partnership without the consent of the Managing General Partner. Otherwise, subject to sections 28 and 29, and only if the Managing General Partner consents, a Limited Partner may make an Assignment of a Limited Partnership Interest. However, an Assignment does not relieve the Limited Partner of his obligations and liabilities under this Agreement, or constitute the assignee a Limited Partner, or confer on the assignee any Partnership Rights. An assignee of a Limited Partner's Partnership Interest may be admitted and substituted as a Limited Partner and acquire Partnership Rights only upon the satisfactory completion of the requirements specified in section 29. The failure or refusal of the Managing General Partner to consent to the admission of an assignee as a Limited Partner does not affect the right of the assignee to the Partnership Interest of his predecessor in interest. 27. Managing General Partner. Subject to section 28, a Managing General Partner may make an Assignment, directly or indirectly, of all or any part of its Partnership Interest. However, an Assignment does not relieve such Managing General Partner of its obligations and liabilities under this Agreement, or constitute the assignee a Managing General Partner, or confer on the assignee any Partnership Rights. Subject to section 28, and only if a Majority in Interest consents, a Managing General Partner may make an Assignment of both its Partnership Interest and its Partnership Rights if the assignee assumes in writing all such Managing General Partner's obligations and liabilities under this Agreement and if all the applicable requirements of section 29 are satisfied. Upon compliance with the immediately preceding sentence, an assignee of such Managing General Partner has all the rights and powers granted to such Managing General Partner under this Agreement and has all the obligations and liabilities of such Managing General Partner under this Agreement. 28. Restriction on Transfer. Notwithstanding any other provision of this Agreement, an assignment of a Partnership Interest shall not be made, and consent thereto shall be withheld: (a) Unless the Managing General Partner has satisfied itself (by seeking advice of legal counsel or otherwise, with any resulting Partnership expense to be reimbursed by the assignor) that the assignment will not have any significant adverse tax effect upon the Partnership or the other Partners; (b) Unless the Managing General Partner has satisfied itself (by advice of legal counsel, with any resulting Partnership expense to be reimbursed by the assignor) that the proposed assignment may be made without registration under any applicable securities law; and it will not violate any applicable securities law (including investor suitability standards); 24 (c) If the Assignment is sought to be made to: (i) a minor or incompetent, except if made by will or intestate succession, or (ii) to a Person which is not an Affiliate. 29. Admission of Substitute Partner. Subject to the other provisions of this Agreement, an assignee of a Partnership Interest may be admitted as a Partner and granted Partnership Rights only if: (a) the Assignment is made pursuant to a written instrument in a form satisfactory to the Managing General Partner and specifies the intention of the assignor that the assignee be substituted as a Partner; (b) the Managing General Partner consents to the admission by executing two counterparts of this Agreement that evidences the Partnership Rights of the assignee, and if the assignee is to be admitted as a Partner a Majority in Interest consent to the admission; (c) the assignee accepts, signs and agrees to be bound by this Agreement, by executing two counterparts of this Agreement, including an amended Exhibit A, and such other documents or instruments as the Managing General Partner requires to effect the admission of the assignee as a Partner; (d) the assignee provides the Managing General Partner with evidence satisfactory to it of the assignee's authority to become a Partner under the terms of this Agreement; (e) the assignee pays all filing, publication and other costs (including reasonable attorneys' fees) incurred by either the Partnership or the Managing General Partner in connection with the admission and substitution of the assignee as a Partner. Notwithstanding an assignee's satisfaction of any or all of the conditions specified above, the Managing General Partner, in its absolute discretion, may refuse to consent to the assignee's admission as a Partner, in which event the assignee will not obtain any Partnership Rights, but will retain only the rights of an assignee under sections 26 or 27. 30. Rights of Partner After Assignment and Substitution. Upon the Assignment of all his Partnership Interest, and the admission of a substitute partner, a Partner shall cease to be a Partner and to have any Partnership Rights. 31. Allocations and Distributions After Assignment. For the purposes of allocations of Profits and Losses, Taxable Income or Taxable Loss, and distributions, an Assignment of a Partnership Interest is effective as to the Partnership, and shall be 25 reflected in the records of the Partnership, as of the date that the Managing Genera1 Partner receives written notice of the Assignment. The Taxable Income or Taxable Loss, Profits and Losses and cash and other distributions in respect of the assigned Partnership Interest with respect to the fiscal year in which the Assignment of the Partnership Interest occurs shall be divided between the assignor and the assignee according to the method provided to the Managing General Partner by the assignor and the assignee, so long as such method is permitted under the Code and does not adversely affect the other Partners or the Partnership from a tax or economic perspective. The method of allocation shall be provided to the Managing General Partner in the written notice of the Assignment. Any additional costs for computing the allocations hereunder shall be paid by the assignor or assignee, as the case may be. The written notice referred to above shall also contain information as to whether the assignor or assignee shall be responsible for the payment of such additional cost, if any. ARTICLE VIII RETIREMENT, WITHDRAWAL, OR REMOVAL OF PARTNERS 32. Withdrawal of Managing General Partner or Limited Partner. (a) A Limited Partner may, at any time, withdraw all or part of his Partnership Interest from the Partnership by providing written notice thereof to the Managing General Partner. Immediately after the receipt of such written notice from a Partner, the Managing General Partner shall make the appropriate distributions to the Partner in partial or complete redemption of his Partnership Interest as set forth in section 16(b). (b) A partial withdrawal by a Partner shall be made in increments of one tenth (1/10th) of one percent (1%) of a Percentage Interest. The written notice of withdrawal from a Partner to the Managing General Partner must state whether the withdrawal is a partial or complete withdrawal and, if a partial withdrawal, must state the Percentage Interest that is being withdrawn. A Partner shall not make a partial withdrawal that will result in his remaining Percentage Interest becoming less than one tenth (1/10th) of one percent (1%) immediately after the withdrawal. (c) The Managing General Partner agrees that it will fully cooperate to the extent permitted by law to accomplish a withdrawal requested by a Partner hereunder. It also agrees that it will not take any action that will obstruct or render impossible the application of this section 32 (such as to pledge the Partnership's Marketable Securities as collateral to creditors of the Partnership), unless such action is essential to accomplish the purposes of the Partnership. (d) The partial withdrawal of a Limited Partner does not dissolve or terminate the Partnership unless there is only one Partner then remaining. The remaining Partners shall amend this Agreement to reflect the partia1 or complete withdrawal of the 26 Partner from the Partnership, if and to the extent necessary. (e) Upon the giving of the notice of withdrawal pursuant to Paragraph (a), and upon the dissolution of the Partnership, the voting rights with respect to any Marketable Securities allocable to the Percentage Interest being withdrawn shall be vested in the withdrawing Partner or Partners, and the Partnership shall have no voting rights with respect to such stock. (f) The complete withdrawal of all the Limited Partners shall constitute a dissolution of the Partnership pursuant to Article IX. 33. Retirement, Removal, or Withdrawal of Managing General Partner. The Managing General Partner may withdraw any part of its General Partnership Interest without the consent of a Majority in Interest. The Retirement, removal, or withdrawal of the Managing General Partner shall dissolve the Partnership only if there is no successor General Partner. Notwithstanding the foregoing or anything else in this Agreement to the contrary, a merger, consolidation, or reorganization of a Managing General Partner who is not a natural person, or a sale of all or substantially all its assets that includes its Partnership Interest, is not a Retirement or withdrawal of such Managing General Partner if the resulting, surviving or acquiring Person is an Affiliate and becomes substituted as the Managing General Partner of the Partnership. The resulting, surviving or acquiring Person is substituted as the Managing General Partner without further act if it gives notice of the substitution to the Partners before the effective date of the merger, consolidation, reorganization or sale. Each Partner consents to the admission and substitution of such substitute Managing General Partner pursuant to this section 33, and no further consent or approval of any Partner is required. 34. Retirement of Limited Partner. The Retirement of a Limited Partner does not dissolve or terminate the Partnership except as provided in section 36(g), but the legal or personal representatives, heirs, successors, assignees, or stockholders of a Retired Limited Partner, subject to section 26, shall succeed to the Partnership Interests of the Retired Limited Partner and may make an Assignment of the Partnership Interests within the limitations set forth in this Agreement. 35. Rights of Partner After Retirement, Removal, or Withdrawal. A Partner ceases to have any Partnership Rights upon his Retirement, removal, or complete withdrawal from the Partnership. However, until the appropriate distributions, if any, are made to a Retired, removed, or withdrawn Partner for his Partnership Interest, the Retired, removed, or withdrawn Partner is entitled to receive the allocations of Profits and Losses, Taxable Income or Taxable Loss and all distributions referred to in section 16 applicable to his Partnership Interest. 27 ARTICLE IX DISSOLUTION 36. Events of Dissolution. The Partnership shall be dissolved, and unless reconstituted shall be terminated, upon: (a) the expiration of its term; (b) the vote of a Majority in Interest to dissolve the Partnership; (c) the Partnership being adjudicated insolvent or bankrupt; (d) the Retirement, removal, or withdrawal of the Managing General Partner; (e) the death of Barry Silverstein; or (f) the sale of all or substantially all of the Partnership's Property. (g) the complete withdrawal of the Limited Partners. 37. Winding Up and Distributions. Upon the dissolution of the Partnership pursuant to section 36, and unless the Partnership is reconstituted, the winding up of the Partnership's business and the liquidation and distribution of Partnership assets must be carried out with due diligence and in a timely manner, and consistent with both the requirements of applicable law and the following provisions of this section: (a) The Managing General Partner shall be responsible for taking all actions relating to the winding up, liquidation, and distribution of assets of the Partnership, unless its Retirement, removal, or withdrawal causes the dissolution, in which case the fiscal agent, liquidator, or receiver appointed (without judicial action) by a Majority in Interest shall be so responsible. The Managing General Partner, or the appointed fiscal agent, liquidator, or receiver, is referred to in this Agreement as the "Liquidator." A Limited Partner can be appointed to be the Liquidator. The Liquidator shall file all certificates or notices of the dissolution of the Partnership as required by law. Upon the complete liquidation and distribution of the Partnership assets, the Partnership shall terminate, and the Liquidator shall execute, acknowledge, and cause to be filed all certificates and notices required by law to terminate the Partnership. (b) The Liquidator shall proceed without unnecessary delay to sell and otherwise liquidate the Partnership's assets. Unless directed otherwise by a Majority in Interest, all Marketable Securities, cash and other readily divisible or fungible assets of the Partnership shall be distributed directly to the Partners in the manner set forth in section 16(c)(i). The Liquidator shall promptly sell the other assets of the Partnership 28 unless it determines that an immediate sale of part or all of such assets would cause undue loss to the Partners. In such case, the Liquidator, to avoid such loss, may defer the liquidation of the Partnership assets for a reasonable time, except for those liquidations that are necessary to satisfy the debts and liabilities of the Partnership to persons and parties other than the Partners. The Liquidator shall distribute the proceeds from the liquidation of the Partnership's assets as provided in section 16(c). (c) Upon the dissolution of the Partnership pursuant to section 36, and unless the Partnership is reconstituted, the Liquidator shall cause the accountants for the Partnership to prepare within ninety (90) days after the occurrence of the event of dissolution, and immediately thereafter shall furnish to each Partner, a statement setting forth the assets and liabilities of the Partnership as of the date of its dissolution. The Liquidator, promptly following the complete liquidation and distribution of the Partnership's assets, shall cause the Partnership's accountants to prepare, and the Liquidator shall furnish to each person who is a Partner immediately before the dissolution, a statement showing the manner in which the Partnership assets were liquidated and distributed. 38. Distribution of Liquidation Proceeds and Assets and Allocation of Gains and Losses. Subject to the last sentence of 12(d), the net proceeds from liquidation of the Partnership's assets and the unliquidated Property of the Partnership shall be distributed, and all Profits and Losses resulting from the liquidation of the Partnership shall be allocated, among the Partners in the proportions and orders of priority specified in section 16(c). 39. Limitation of Liability of Partners. Upon the dissolution of the Partnership and the distribution of the net liquidation proceeds pursuant to section 36 and section 16(c), each Partner shall look solely to the assets of the Partnership for the payment of his unreturned Capital Contributions, and if the Partnership's assets remaining after the payment or discharge of the debts and liabilities of the Partnership are insufficient to pay the full amount of the unreturned Capital Contributions of each Partner, the Partner shall have no recourse or claim against any Partner or the Partnership with respect to its unreturned Capital Contributions, except for claims for fraud, gross negligence, or breach of fiduciary duty. 40. Waiver of Right of Partition of Assets. Each Partner, and for his heirs, successors, and assigns, waives his right to the partition of the assets of the Partnership upon the dissolution and liquidation of the Partnership. ARTICLE X ACCOUNTING YEAR, BOOKS, RECORDS, AND REPORTS 41. Books and Records. In accordance with the Act, the Managing General Partner shall maintain at the principal office of the Partnership a complete and accurate set of books of records and accounts, in which it shall make full and complete entries of 29 all dealings or transactions relating to the Partnership's business and where it shall keep all supporting documentation of transactions with respect to the conduct of the Partnership's business. The Managing General Partner may delegate responsibility to those persons as a Majority in Interest agree to compile and maintain all required information and prepare all required materials provided for in this Agreement. Each Partner or his duly authorized representative, upon five days' advance notice to the Managing General Partner, may examine during normal business hours the books of the Partnership and all other records and information concerning the operation of the Partnership. 42. Reports. If requested by a Partner at least 30 days prior to the end of a quarter, within 60 days after the end of each fiscal quarter in each fiscal year of the Partnership, the Managing General Partner shall cause to be prepared and sent to each Partner a balance sheet, income statement and cash flow statement of the Partnership for and as of the end of that fiscal quarter, in each case unaudited but accompanied by a report of the activities of the Partnership for that quarter. Within 90 days after the end of each fiscal year of the Partnership, the Managing General Partner shall cause to be prepared and sent to each Partner a financial report consisting of (a) a balance sheet as of the end of the fiscal year; (b) statements of income, partner's equity, and changes in financial position for the fiscal year; (c) if requested by a Partner, the opinion of the Partnership's certified public accountant concerning the foregoing financial statements; (d) a summary of the Partnership's activities for the fiscal year; (e) a statement showing the distributions to each Partner during the fiscal year and identifying any distributions which constitute a return of Capital Contribution; and (f) a statement showing the amount of Taxable Income or Taxable Loss, and listing each item of income, gain, loss, deduction, or credit allocated or charged against the Partner for federal and state income tax purposes. 43. Bank Accounts. The Managing General Partner shall maintain the bank accounts of the Partnership in such financial institutions as the Managing General Partner considers appropriate. The Managing General Partner shall make or permit withdrawals from the Partnership's bank accounts on the signature of the Managing General Partner or on such other signatures as the Partners shall designate in writing. 44. Tax Elections. If the Partnership has not made the election set froth in Treas. Reg. ss. 1.761-2, or if Subchapter K of Chapter 1 of the Code applies to the Partnership, the Partnership shall file an election under Section 754 of the Code, relating to the optional adjustment to the basis of partnership property, at the first time it is permitted to do so after the beginning of the term of this Partnership. The Managing General Partner shall make or waive, at its discretion, all other tax elections required or permitted to be made by the Partnership under the Code. 45. Accounting Method and Fiscal Year. The Managing General Partner shall maintain the Partnership records and books of accounts in accordance with the cash method of accounting, with such modifications as are set forth in this Agreement, and 30 otherwise in accordance with genera11y accepted accounting principles consistently applied. The fiscal year of the Partnership is the calendar year. ARTICLE XI GENERAL PROVISIONS 46. Power of Attorney. Each Limited Partner (including each substitute Limited Partner), by executing a counterpart of this Agreement, irrevocably constitutes and appoints, with full power of substitution, the Managing General Partner as his true and lawful attorney-in-fact, with full power and authority in his name, place and stead to make, execute, acknowledge, deliver, swear to, publish, record and file: (a) any certificate or other instrument that may be required to be fi1ed, published or recorded by the Partnership under the Act or any other law of Delaware or that the Managing Genera1 Partner considers advisable to file, publish or record; (b) all documents (including schedules and amendments to this Agreement) that may be required to effect the continuation or reinstatement of the Partnership, admit an additional or substitute Partner (other than any approval required of Limited Partners), reduce the Capital Contributions of a Partner, or dissolve and terminate the Partnership; and (c) all amendments to this Agreement adopted in accordance with section 54. The foregoing power of attorney is coupled with an interest, resulting from each Limited Partner's reliance on the power of the attorney-in-fact to act as contemplated by this Agreement for the purposes described in this section 46. The foregoing power of attorney shall survive the Retirement of a Limited Partner and the Assignment by any Limited Partner of all or any part of his Partnership Interest, except that when an assignee is granted Partnership Rights and admitted as a substitute Limited Partner the power of Attorney of the assignor Limited Partner shall survive the Assignment only for the purpose of enabling the non-managing General Partner to make, execute, acknowledge, deliver, swear to, publish, record and file every instrument necessary to effect the substitution. 47. Partnership Contracts. The Managing General Partner may enter into agreements and contracts on behalf of the Partnership only if they are in writing and clearly indicate to the other parties that the Partnership is a general partnership of which the Managing General Partner is a general partner. 48. Conveyances. Subject to section 20, the Managing General Partner may sign any deed, mortgage, lease, bill of sale, security agreement, pledge, contract or other instrument or commitment purporting to convey or encumber any of the Partnership's Property or any interest therein, whether now or subsequently owned or leased at any time by the Partnership, and no other signature is required. 31 49. Notices. To be effective, a notice required or permitted by this Agreement must be in writing, or by telegram, telex or telecopy if promptly confirmed in writing. A notice is given when delivered or, if mailed, when deposited in a United States postal service letterbox to be sent by first class, postage prepaid, certified mail, with return receipt requested (whether or not the sender receives the return receipt), and addressed, if to a Partner, at his registered address listed on Exhibit A and, if to the Managing General Partner or the Partnership, to the attention of such Managing General Partner at the Partnership's principal business office. 50. Consents. Any consent required by this Agreement may be given as follows: (a) by a writing given by the consenting Partner and received by the Managing General Partner or other appropriate recipient at or before the occurrence of the action or other thing for which the consent was solicited, unless the consent is nullified by: (i) A writing from the consenting Partner that is received by the Managing General Partner before the occurrence of the action or other thing for which the consent was so1icited; or (ii) the negative vote by the consenting Partner at any meeting called for the purpose of considering the action or other thing. (b) by the affirmative vote of the consenting Partner at any meeting called for the purpose of considering the action or other thing for which the Partner's consent was solicited. 51. Meetings. The Managing General Partner may call meetings of the Partners for any purpose, at any, time. The Managing General Partner shall call a meeting of the Partners within 30 days after he receives from a Majority in Interest a written request for a meeting, stating the purpose of the requested meeting and the matters proposed for consideration. Meetings of the Partners may be held at such time, date and place as the Managing General Partner designates. The Managing General Partner shall give notice of any meeting of the Partners not less than ten nor more than 60 days before the date of the meeting, to each Partner at his registered address listed on Exhibit A. The notice shall state the time, date and place of the meeting, the purpose of the meeting and the Partner at whose direction or request the meeting is called. Except in the case of emergency, meetings of the Partnership shall be held in Delaware or South Carolina. If a meeting is adjourned to another time or place, notice of the adjourned meeting is not required if the time and place of the adjournment is announced at the called meeting. The presence in person or by proxy of a Majority in Interest constitutes a quorum at a meeting. Any notice of a meeting required by this section may be waived in writing at, before or after the meeting and shall be deemed to be waived by each Partner who is present in person or by proxy at the meeting. Only those persons who are Partners 32 at the close of business on the day before the meeting are entitled to vote at the meeting. Any Partner entitled to vote at a meeting may authorize any person to act for him by written proxy if a copy of the proxy is delivered to the Managing General Partner before the commencement of the meeting. To be effective, a proxy must be signed by the Partner (and, if applicable, each co-owner) or his duly appointed attorney-in-fact, and no proxy shall be valid for more than 11 months after its date. A proxy is revocable at the pleasure of the Partner granting it. 52. Binding Effect; Counterparts. The covenants and agreements contained in this Agreement are binding on, and inure to the benefit of, the legal and personal representatives, heirs, successors and permitted assignees of the parties to this Agreement. The parties may execute this Agreement in any number of counterparts, each of which will be an original, but all of which together will constitute one and the same agreement. 53. Choice of Law. This Agreement and the rights and obligations of the Partners under it are governed by, and construed and enforced in accordance with, the laws of Delaware. 54. Complete Agreement; Modification. This Agreement contains the final, complete and exclusive expression of the understanding among the Partners with respect to the Partnership and its purposes and objectives and supersedes any prior or contemporaneous agreement or representation, oral or written, by any of them. Except to admit a new or a substitute Partner or to reflect the withdrawal or Retirement of a Partner, this Agreement and every provision of it may be modified or amended only by an agreement in writing signed by or on behalf of all Partners. 55. Evidence of Partnership Interests. The Partnership Interest of each Partner is evidenced exclusively by a counterpart of this Agreement (including Exhibit A) that has been signed and dated by the Managing General Partner. 56. Tax Matters Partner. The Managing General Partner or its designee shall be the "tax matters partner" of the Partnership for federal income tax purposes. Pursuant to Section 6223(c)(2) of the Code, upon receipt of notice from the Internal Revenue Service of the beginning of an administrative proceeding with respect to the Partnership, the Managing General Partner, as the tax matters partner, shall furnish the Internal Revenue Service with the names, addresses, and Percentage Interests of each of the Partners. The Managing General Partner agrees not to enter into a settlement agreement pursuant to Section 6224 of the Code without providing at least 30 days advance written notice to each Partner. As tax matters partner, the Managing General Partner shall have absolute discretion regarding whether to seek judicial review of any administrative determination and, if it determines to seek judicial review of Internal Revenue Service action pursuant to Section 6226 of the Code, then the Managing General Partner shall select the judicial forum for such review. The tax matters partner shall receive no compensation for its services as such. The Partnership shall bear all third party costs and expenses incurred by the tax matters partner in performing its duties as such. Nothing 33 herein shall be construed to restrict the Partnership from engaging an accounting firm or law firm to assist the tax matters partner in discharging its duties hereunder. 57. Gender and Number. As used in this Agreement, the masculine gender includes the feminine and neuter, and the singular includes the plural. 58. Title. Title to any Property acquired by the Partnership shall be taken in the name of the Partnership. IN WITNESS WHEREOF, this agreement has been executed by or on behalf of each Partner as of the date written beside his name. GENERAL PARTNER: S. B. Investment Management, Inc. /s/ Steven Blechner ------------------------------------------ Steven Blechner Date As its President LIMITED PARTNER: /s/ Barry Silverstein ------------------------------------------ Barry Silverstein Date 34 herein shall be construed to restrict the Partnership from engaging an accounting firm or law firm to assist the tax matters partner in discharging its duties hereunder. 57. Gender and Number. As used in this Agreement, the masculine gender includes the feminine and neuter, and the singular includes the plural. 58. Title. Title to any Property acquired by the Partnership shall be taken in the name of the Partnership. IN WITNESS WHEREOF, this agreement has been executed by or on behalf of each Partner as of the date written beside his name. GENERAL PARTNER: S. B. Investment Management, Inc. ------------------------------------------ Steven Blechner Date As its President LIMITED PARTNER: /s/ Barry Silverstein ------------------------------------------ Barry Silverstein Date 34 EX-4 4 ex-4.txt Exhibit 4 LIMITED PARTNERSHIP AGREEMENT OF SILVERSTEIN INVESTMENTS LIMITED PARTNERSHIP, II a Delaware limited partnership TABLE OF CONTENTS Page No. -------- ARTICLE I FORM AND INTERPRETATION ...................... -5- Definitions ......................................................... -5- Captions and Certain Terms .......................................... -5- Severability ........................................................ -9- Limitation of Grant ................................................. -9- ARTICLE II ORGANIZATION OF PARTNERSHIP .................... -9- Formation, Name, Office and Registered Agent ........................ -9- Purpose of Partnership .............................................. -9- Term of Partnership ................................................. -10- Authorized Acts ..................................................... -11- Co-Ownership of Partnership Interests ............................... -12- Representations and Warranties of the Limited Partners .............. -12- ARTICLE III PARTNERSHIP CAPITAL ........................ -14- Capital Contributions ............................................... -14- Capital Account ..................................................... -15- Expenses Paid by Partners ........................................... -16- Loans by Partners; Restrictions on Borrowing ........................ -16- ARTICLE IV PROFITS AND LOSSES AND TAXABLE INCOME AND TAXABLE LOSS ....... -16- Allocations ......................................................... -16- ARTICLE V DISTRIBUTIONS, WITHDRAWALS AND LOANS ............... -18- Distributions ....................................................... -18- Limitation on Distributions to Partners ............................. -20- ARTICLE VI AUTHORITY, DUTIES, AND LIABILITIES OF PARTNERS ........... -20- Duties of Managing General Partner .................................. -20- Managing General Partner's Fees and Expenses ........................ -20- Authority of Managing General Partner ............................... -21- Special Limitation .................................................. -23- Dealing with Affiliates ............................................. -23- Indemnification of General Partner .................................. -23- Liability of Limited Partners ....................................... -23- Authority of Limited Partners and Non-Managing General Partners ..... -24- ARTICLE VII TRANSFER OF PARTNERSHIP INTERESTS ................. -24- Limited Partners .................................................... -24- General Partner ..................................................... -24- Restriction on Transfer ............................................. -24- Admission of Substitute Partner ..................................... -25- Rights of Partner After Assignment and Substitution ................. -26- Allocations and Distributions After Assignment ...................... -26- ARTICLE VIII RETIREMENT, WITHDRAWAL OR REMOVAL OF PARTNERS ........... -26- Withdrawal of General Partner or Limited Partner .................... -26- Retirement, Removal, or Withdrawal of Managing General Partner ...... -27- Retirement of Limited Partner ....................................... -28- Rights of Partner After Retirement, Removal, or Withdrawal .......... -28- ARTICLE IX DISSOLUTION ............................ -28- Events of Dissolution ............................................... -28- Winding-Up and Distributions ........................................ -28- Distribution of Liquidation Proceeds and Assets and Allocation of Gains and Losses .......................................... -29- Limitation of Liability of Partners ................................. -30- Waiver of Right of Partition of Assets .............................. -30- ARTICLE X ACCOUNTING YEAR, BOOKS, RECORDS, AND REPORTS ............ -30- Books and Records ................................................... -30- Reports ............................................................. -30- Bank Accounts ....................................................... -31- Tax Elections ....................................................... -31- Accounting Method and Fiscal Year ................................... -31- ARTICLE XI GENERAL PROVISIONS ......................... -31- Power of Attorney ................................................... -31- Partnership Contracts ............................................... -32- Conveyances ......................................................... -32- Notices ............................................................. -32- Consents .................................................................. -32- Meetings .................................................................. -33- Binding Effect; Counterparts .............................................. -33- Choice of Law ............................................................. -34- Complete Agreement; Modification .......................................... -34- Evidence of Partnership Interests ......................................... -34- Tax Matters Partner ....................................................... -34- Gender and Number ......................................................... -34- Title ..................................................................... -34- SILVERSTEIN INVESTMENTS LIMITED PARTNERSHIP II AGREEMENT This Limited Partnership Agreement ("Agreement") is entered into, pursuant to the provisions of the Delaware Uniform Limited Partnership Act, and shall be retroactively effective as of the date of filing of the Certificate of Limited Partnership with the Delaware Secretary of State, by S.B. Investment Management, Inc. with Steven Blechner as its president, whose address is 40 Harvestwood Drive, West, Bridgewater, MA 02379 (as the "Managing General Partner"). Barry Silverstein, whose address is 5111 Ocean Boulevard, Suite C, Sarasota, Florida 34242 is the only limited partner in the Partnership. This Agreement is on the following terms and conditions: ARTICLE I FORM AND INTERPRETATION 1. Definitions. The following capitalized terms, as used in this Agreement and in the attached exhibits, which constitute a part of this Agreement, have the meanings ascribed to them below and include the plural as well as the singular number: "Act" means the Delaware law pertaining to Limited Partnerships, as amended, or any subsequent Delaware law concerning partnerships that are enacted in substitution for the Act. "Affiliate" of a Partner means (1) another Partner of the Partnership; (2) a legal or personal representative of any Partner; (3) the Partner's lineal descendants and spouse (other than a spouse who is legally separated from the Partner under a decree of divorce or separate maintenance); (4) a trustee of a trust for the benefit of any Person referred to in clause (1), (2) or (3); (5) a Person, other than an individual, of which 80% or more of the voting or equity interests is owned directly or indirectly by a Partner and/or one or more of the Persons referred to in clauses (1) through (4); (6) a Person owning 80% or more of the voting or equity interests of a Partner that is not an individual; or (7) a Person other than an individual, 80% or more of the voting or equity interests of which is owned by the same Person that owns 80% or more of the voting or equity interests of a Partner that is not an individual. "Agreement" means this Limited Partnership Agreement as originally executed and as subsequently amended or supplemented from time to time in accordance with section 54. "Assignment" means a sale, exchange, gift, pledge, transfer or disposition of any kind whatsoever and, in the case of a Person that is not an individual, it includes the sale, exchange, pledge, transfer or disposition of a majority of either voting control or the equity interests in such Person. "Bankruptcy" means taking advantage of any bankruptcy or insolvency act (including the Bankruptcy Reform Act of 1978 or similar law, and also any proceeding under state or local insolvency or debtor relief laws), or a final adjudication of insolvency or an assignment of a major portion of a Person's assets for the benefit of creditors. "Capital Account" has the meaning set forth in section 12. "Capita1 Contribution" means the total amount of cash, and net fair market value of securities and other property contributed by a Partner to the equity of the Partnership, or agreed to be contributed by a Partner to the equity of the Partnership, pursuant to section 11(a), and reduced by any return of capital to the Partner within the meaning of section 11(c). Any reference in this Agreement to the Capital Contribution of either a Partner or an assignee of a Partner shall include the Capital Contribution of any prior Partner to whose Partnership Interest the then existing Partner or assignee succeeded. "Cash Flow" means the excess of cash derived by the Partnership from all sources, including from capital contributions, loans, sales of securities and other activities, (but excluding cash derived from the winding-up and liquidation of the Partnership pursuant to section 37) over the sum of all cash disbursements, including repayments of loans from Partners, loans to Partners for the Partnership, and distributions to Partners pursuant to section 16(a) or (b) (but excluding disbursements pursuant to section 16(c), plus a reasonable allowance for reserves for repairs, investments in Property (including Marketable Securities), replacements, contingencies and anticipated obligations (including debt service, capital improvements and replacements to the extent not funded by reserves) as reasonably determined by the Managing General Partner. Notwithstanding the preceding sentence, in determining the reasonable allowance for reserves, the Managing General Partner shall reduce such allowance to the extent necessary to ensure that annual distributions of Cash Flow to each Partner will be in an amount at least equal to the annual income tax liability (exclusive of income tax liability resulting from a transaction pursuant to section 16(b) or (c)) of each such Partner (determined assuming that the maximum possible income tax rate is applicable) resulting from the allocation to the Partner of his share of the Partnership's Taxable Income and Taxable Loss. Cash Flow is to be calculated separately for each Partner on the theory that each Partner owns the assets of the Partnership contributed by such Person directly. For this purpose, if a Partner has contributed Marketable Securities to the Partnership, such Marketable Securities (including stock dividends thereon, stock splits or other recapitalizations) shall be allocated to the contributing Partner (or such Partner's assigns). In addition, Cash Flow shall be calculated and distributed separately for each of the Class A Partnership Interest and the Class B Partnership Interests and the assets of the Partnership allocated to such interests. -6- "Class A Partnership Interest" means an interest in the Partnership represented by the Capital Account associated only with the Partnership's ownership of those assets listed on Exhibit A-1 attached hereto and made a part hereof (the "Class A Properties"), and the right to receive a percentage share of the income, gain, loss, deduction, cash and other distributions and liquidation proceeds associated with such property, all subject to and interpreted in accordance with the terms of this Agreement. A Class A Partnership Interest may be expressed in units with each unit representing ownership of a one percent interest in the Class A Properties. "Class B Partnership Interest" means an interest in the Partnership represented by a partner's Capital Account relating to all assets of the Partnership other than those assets listed on Exhibit A-1 attached hereto and made apart hereof, (i.e., excluding the Capital Account relating to the Class A Properties), and the right to receive his percentage share of the income, gain, loss, deduction, cash and other distributions and liquidation proceeds of the Partnership (other than those associated with Class A Partnership Interests), all subject to and interpreted in accordance with the terms of this Agreement. "Code" means the Internal Revenue Code of 1986, as amended, or any subsequent federal law concerning income taxes that is enacted in substitution for the Code. "General Partner" means any Person admitted as a general partner in accordance with this agreement. "General Partnership Interest" means the Partnership Interest of a General Partner, in his capacity as a General Partner. "Limited Partner" means any Person admitted as a limited partner in accordance with this Agreement. "Limited Partnership Interest" means the Partnership Interest of a Limited Partner, in the capacity as a Limited Partner. "Majority in Interest" when used in regard to the degree of consent, approval or agreement required among the Partners, means Partners whose aggregate Percentage Interests constitute over 50% of the total aggregate Percentage Interests then outstanding. "Managing General Partner" means the Person designated in this Agreement as the general partner responsible for management of the affairs of the Partnership, including all voting rights with respect to, and control over, Marketable Securities, and thereafter any Person which becomes a general partner responsible for management of the affairs of the Partnership pursuant to this Agreement, in the Person's capacity as a managing general partner of the Partnership. -7- "Marketable Securities" means securities, including stock, which are traded on an established securities market, whether or not registered under the Securities Act of 1933. "Partner" means each Person which is a Managing General Partner or a Limited Partner. "Partnership" means the SILVERSTEIN INVESTMENTS LIMITED PARTNERSHIP II, the limited partnership formed in accordance with the Act pursuant to this Agreement. "Partnership Interest" includes only a Partner's Capital Contribution and right to receive his Percentage Interest and excludes Partnership Rights. "Partnership Rights" excludes the Partnership Interest of a Partner, and includes, in addition to other rights provided in this Agreement, the rights provided to him by the Act except to the extent such rights are inconsistent with the provisions of this Agreement. "Percentage Interest" shall mean a partner's percentage share from time to time of the Net Profits and Net Losses, taxable income or taxable loss, Cash Receipts, cash and other distributions and liquidation proceeds of the capital of the Partnership attributable to a particular class of Partnership Interests all subject to and interpreted in accordance with the terms of this Agreement. The Percentage Interest of partners for each class of Partnership Interests shall be proportionate to the Capital Accounts of the partners in that class of Partnership Interest at all times so that, for example, if a Partner's Capital Account in one class is 100 and the aggregate of all Capital Accounts in the same class of Partnership Interest is 1000, the partner's Percentage in that class of the Partnership is 10%. Except as otherwise provided in this Agreement, in the event of a change among the partners in the Percentage Interest in the Partnership during the year, the Partnership shall use a closing-of-the-books method with respect to such change or changes in Percentage Interest in computing a partner's share of profits and losses, taxable income and taxable losses, and entitlement to distributions during such year. "Person" means any individual and any general or limited partnership, corporation, estate, joint venture, trust, business trust, cooperative, association or other organization. "Profits and Losses" means the annual net income or loss of the Partnership determined on a generally accepted accounting principles basis, as disclosed on the annual financial statements of the Partnership, except that Profits and Losses shall be computed separately for each of the Class A Partnership Interests and Class B Partnership Interests. If the Partners have elected for the Partnership to be excluded -8- from the application of Subchapter K of Chapter 1 of the Code, the provisions relating to Profits and Losses shall be of no effect during such period at the Partnership level, but will be separately computed for each Partner. "Property" means any real, personal, tangible or intangible property contributed by a Partner to the equity of the Partnership or otherwise acquired by the Partnership. "Pro Rata" means in the proportion that the Percentage Interest of each Partner bears to the total Percentage Interests of all the Partners. "Retirement" means the death, Bankruptcy, adjudication of incompetency as determined by a court of appropriate jurisdiction, dissolution and liquidation or termination of existence, merger or consolidation (except as provided in sections 33 and 34) of a Partner, or the sale, lease or other disposition of all or substantially all the property of a Partner (except as provided in sections 33 and 34). "Taxable Income or Taxable Loss" means the net income or loss of the Partnership for federal income tax purposes, as determined at the close of the Partnership's fiscal year by the accountants employed by the Partnership to prepare its income tax returns. If the Partners have elected for the Partnership to be excluded from the application of Subchapter K of Chapter 1 of the Code, the provision shall be of no effect for federal income tax purposes during such period, but will be separately computed for each Partner. 2. Captions and Certain Terms. The titles and captions preceding the text of the articles and sections of this Agreement are solely for convenience of reference and neither constitute a part of this Agreement nor affect its meaning, interpretation, or effect. The words "hereby," "herein," "hereof," "hereto," "hereunder," and terms of similar import refer to this Agreement as a whole and not to any particular article, section, subsection or other part of this Agreement. 3. Severability. If any article, section or other provision of this Agreement, or its application, is held to be invalid, illegal or unenforceable in any respect or for any reason, the remainder of this Agreement and the application of such article, section or other provision to a person or circumstance with respect to which it is valid, legal and enforceable is not affected. 4. Limitation of Grant. Nothing in this Agreement, whether express or implied, is intended or may be construed to confer upon, or to grant to, any creditor or any other Person (other than the Partners and their legal and personal representatives, heirs, successors and permitted assignees) any right, remedy or claim under or because of this Agreement or any covenant, condition or stipulation of it. -9- ARTICLE II ORGANIZATION OF PARTNERSHIP 5. A. Formation, Name, Office and Registered Agent. The Partnership was organized as of the effective date of this Agreement and the signatories to this Agreement constitute the members of this Partnership under the Act as of such date and as of the date hereof. The rights and obligations of the Partners are determined by the Act, except as otherwise expressly provided in this Agreement. The name of the Partnership is "SILVERSTEIN INVESTMENTS LIMITED PARTNERSHIP II." The record keeping office of the Partnership and its principal place of business are located at the residence of the Managing General Partner where the Managing General Partner performs administrative services on behalf of the Partnership. The Partnership does not have a principal business office. The Managing General Partner may change the name of the Partnership or may designate the location of its principal business office at any time and from time to time by giving written notice of such change to each Partner. The registered agent and registered office of the Partnership is The Corporation Trust Company, 1209 Orange Street, Wilmington, DE 19801. B. General and Limited Partners. S. B. Investment Management, Inc. with Steven Blechner as its President is the initial Managing General Partner of the Partnership. The initial Limited Partner of the Partnership is Barry Silverstein. C. Certificate of Limited Partnership. In connection with the execution of this Agreement, the Managing General Partner signed a certificate of limited partnership, pursuant to the Act. The Managing General Partner shall cause the certificate to be filed with the Delaware Secretary of State. The certificate also has been amended to implement the change in General Partners. The Managing General Partner shall amend the certificate when required under this Agreement and shall execute the amended certificate as required by the Act. 6. Purpose of Partnership. (a) Except as provided in 6(c) below, the purposes of the Partnership are to: (i) invest in, own, sell, acquire, manage and exercise the voting rights associated with Marketable Securities, (ii) after approval by a Majority in Interest, acquire, hold, sell, own, improve, develop or lease other types of property in addition to Marketable Securities, and -10- (i) engage in any other lawful activity for profit approved by an affirmative vote of a Majority in Interest. (b) Notwithstanding Section 6(a), unless unanimously approved by the Partners, the Partnership shall not engage in any activity(ies) which would result, based upon opinion of tax counsel, in the characterization of the Partnership as an investment company as that term is used in Section 721(b) or any successor provision of the Code. (c) Subsequent to the date of commencement of existence of the Partnership, the Partners may make the election set forth in Treas. Reg. ss. 1.761-2 to have the Partnership excluded from the application of Subchapter K of Chapter 1 of the Code until such time as a Majority in Interest determine to have the Partnership engage in an activity other than investing in Marketable Securities and other intangible assets. Until such time as the Partnership engages in other than investment activities, and if the aforementioned election is made, it is the intention of the Partners that the Partnership shall be only for investment purposes and shall not actively conduct business. It is the intention of the Partners that the Partnership shall have legal title to, and ownership of, Marketable Securities so as to effectuate the co-ownership of the Marketable Securities by the Partners. As is evidenced by various provisions of this Agreement, each Partner reserves the right separately to take or dispose of their shares or interests in the Marketable Securities and the other assets contributed by such Partner to the Partnership. Further, during the period Subchapter K does not apply to the Partnership, this Agreement is to be interpreted in a manner that will give effect to such election. 7. Term of Partnership. The term of the Partnership shall continue until the earlier of (i) December 31, 2020, or (ii) the death or adjudication of incompetency as determined by a court of appropriate jurisdiction of Barry Silverstein, unless the Partnership is earlier dissolved and terminated under this Agreement. 8. Authorized Acts. In furtherance of its purposes, but subject to every other provision of this Agreement, the Partnership, through, and only through, the actions of the Managing General Partner acting alone, is authorized to do the following: -11- (a) acquire by purchase, lease or otherwise, any real or personal, tangible or intangible property that may be necessary, convenient or incidental to the accomplishment of the purposes of the Partnership; (b) construct, operate, maintain, finance, improve, own, sell, convey, exchange, assign, mortgage or lease any property (or a part thereof) as may be necessary, convenient or incidental to the accomplishment of the purposes of the Partnership; (c) borrow money and issue evidences of indebtedness in furtherance of any purpose of the Partnership and secure the same by a mortgage, pledge, security interest or other liens on the property, any part thereof, any interest therein or on any improvements thereto; (d) prepay, in whole or in part, refinance, increase, renew, modify or extend any indebtedness of the Partnership and, in connection therewith, extend, renew or modify any mortgage, pledge, security interest or other lien affecting any property; (e) invest and reinvest the assets of the Partnership in, and purchase, acquire, hold, sell, transfer and exchange securities of all kinds, including Marketable Securities; (f) lend money to Partners; (g) exercise the voting rights associated with property owned by the Partnership; and (h) enter into any activity and perform and carry out any contract in connection with, or necessary or incidental to, the accomplishment of the purposes of the Partnership. 9. Co-Ownership of Partnership Interests. Any consent required by a Partner shall require the action or vote of each Person (or in such other manner as such Persons have designated in writing to the Partnership) having an interest in such Partnership Interest, with a majority approval needed for consent. On the death of a co-owner of a Partnership Interest held in either joint tenancy with right of survivorship or tenancy by the entirety, the Partnership Interest is owned solely by the survivor as a Partner, and not as an assignee. The Partnership need not (although it may) recognize the death of a co-owner of a Partnership Interest until the Managing General Partner receives notice of the death. A co-owner of a Partnership Interest may sever the tenancy by giving to the Managing General Partner notice to that effect, and signed by the co-owner requesting the severance in the case of a joint tenancy, and by both co-owners in the case of a tenancy by the entirety. Upon receipt of the notice and -12- the certificate evidencing the Partnership Interest owned by the co-owners, the Managing General Partner shall cause the Partnership Interest to be allocated as directed by the co-owners and shall indicate on the Partnership records such allocation. In absence of joint direction, the interests shall be allocated between the owners as the severed ownership interests would be valued for federal estate tax purposes. 10. Representations and Warranties of the Limited Partners. As a condition to becoming a Limited Partner of the Partnership, each Limited Partner represents, warrants, and covenants to each General Partner and the Partnership as follows: (a) He will not assign, sell, mortgage, pledge, or otherwise transfer or encumber any of his rights under this Agreement except as expressly permitted under this Agreement and applicable laws; (b) He was granted full and unrestricted access to the Partnership's business premises, offices and properties and its business, partnership and financial books and records as he required, and was permitted to examine the foregoing, to question the General Partner, and to make all other investigations that he considered appropriate to determine or verify the business or condition (financial or otherwise) of the Partnership and to consummate the transactions contemplated by this Agreement; (c) The Partnership furnished him all additional information concerning the Partnership's business and affairs that he requested; (d) He was permitted to ask questions of, and to receive answers from, the General Partner concerning the terms and conditions of an investment in a Limited Partnership Interest, and to obtain all additional information he considered necessary to verify the accuracy of the information received by him from the General Partner, and he understands the risks associated with an investment in the Partnership and that such an investment is highly speculative; (e) Because of his considerable knowledge and experience in financial and business matters in general and securities investments in particular, he is able to evaluate the merits, risks, and other factors bearing on the suitability of a Limited Partnership Interest as an investment; (f) His income and net worth are such that he is not now, and does not contemplate being, required to dispose of any investment in the Partnership to satisfy any existing or expected obligation, and he is otherwise fully able to bear the economic risks of his proposed investment in the Partnership, including the risk of losing all or any part of his investment in the Partnership and the probable inability to sell, transfer, or pledge, or otherwise dispose of an investment in the Partnership for an indefinite period; -13- (g) He is acquiring a Limited Partnership Interest solely for his own account, as principal, for investment purposes and not with a view to or for resale in connection with any distribution or underwriting of any Partnership Interests; (h) He understands that the Limited Partnership Interest that he will purchase has not been and will not be registered under either the Securities Act of 1933 or any state securities law, that he must hold the Limited Partnership Interest indefinitely unless the Partnership Interests are subsequently registered under those laws or transferred in reliance on advice of counsel satisfactory to the Partnership that registration under those laws is not required, and that stop-transfer instructions will be noted in the appropriate records of the Partnership; (i) He understands that the document evidencing a Limited Partnership Interest acquired by him will bear the following legend: These securities have not been registered under either the Securities Act of 1933 or any state securities law and were acquired pursuant to an investment representation by the record owner. These securities are not transferable absent either registration under the Act and every applicable state securities law or advice of counsel satisfactory to the Partnership that registration in not required. Additionally, these securities are subject to certain transfer restrictions set forth in the Limited Partnership Agreement of the Partnership. Reference may be made to the Limited Partnership Agreement for the details of those restrictions. (j) He understands that a legend substantially identical to the one described above will be placed on every new document issued upon a transfer of a Limited Partnership Interest; (k) He shall not sell, transfer, pledge, or otherwise dispose of any part of his Limited Partnership Interest, unless the Partnership Interests are registered under the Securities Act of 1933 and under every applicable state securities law or unless the Partnership is furnished with advice of counsel satisfactory to it that registration under those laws is not required; and (l) He understands that the Partnership does not file periodic reports with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934. -14- ARTICLE III PARTNERSHIP CAPITAL 11. Capital Contributions. (a) Upon executing this Agreement, each Partner shall make or has made a Capital Contribution in the amount and of the type, and initially shall have a Percentage Interest equal to the percentage, set forth opposite his name on Exhibit A. Partners may make (but Limited Partners are not required to make) additional Capital Contributions at such time and in such amount as they in their sole discretion shall determine but only if the Managing General Partner and a Majority in Interest consent to such additional Capital Contributions. Upon the assignment of any Partnership Interest, the making of an additional Capital Contribution or any return of a Capital Contribution, or any substitution of a Partner, Exhibit A shall be amended to accurately reflect the name, address, Capital Contribution and Percentage Interest of each Partner. Each Parties will also be assigned either or both as Class A and Class B Partnership Interest depending on the assets contributed by each Partner and as they shall mutually agree at the time of contribution. (b) Notwithstanding (a) above, no Capital Contributions shall be made or permitted by any Partner which would result, directly or indirectly, in the Partnership being treated as an investment company under section 721(b) of the Code, and any such attempted Capital Contribution shall be void ab initio. The Managing General Partner shall withhold its consent to the making of an additional Capital Contribution, unless it has satisfied itself (by seeking advice of legal counsel or otherwise) that the making of the additional Capital Contribution will not result, directly or indirectly, in the Partnership being treated as an investment company under section 721(b) of the Code. (c) A Partner shall not receive from the Managing General Partner or out of Partnership Property, and the Managing General Partner and the Partnership shall not return to a Partner, any part of his Capital Contribution, except as set forth in Articles V, VIII and IX of this Agreement and such distribution is determined to be a return of a Partner's Capital Contribution, and then only if all liabilities of the Partnership, except liabilities to the Partners on account of their Capital Contributions, have been paid or there remains property of the Partnership sufficient to pay them. The Partnership shall not pay interest on Capital Contributions, and, a Partner may demand and receive only cash in return for his Capital Contribution, except to the extent provided for in Articles V and IX of this Agreement or unless the Liquidator (as defined in section 37) decides to distribute Partnership property in kind upon the dissolution, winding-up, and termination of the Partnership, or unless the distribution of property to a Partner is unanimous1y approved by the Partners. Each Partner, by signing this Agreement or a counterpart -15- of it, consents to all distributions authorized by this Agreement and releases all other Partners from all liability to both him and the Partnership for all distributions made in accordance with this Agreement. 12. Capital Account (a) The Managing General Partner shall establish and maintain a Capital Account for each Partner in the Partnership's books of account. Capital Accounts shall be maintained and adjusted in accordance with generally accepted accounting principles. A Limited Partner shall not be obligated to restore a deficit balance in its Capital Account, except to the extent required by the Act. Consistent with these capital account maintenance rules, the Managing General Partner shall credit to each Partner's Capital Account the amounts of the Partner's Capital Contributions and any Profits allocated to the Partner. The Managing General Partner shall charge to or deduct from each Partner's Capital Account the amounts of all distributions (in cash or other property) or the Partner and any Losses allocated to the Partner. If any interest in the Partnership is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferror to the extent it relates to the transferred interest. (b) The provisions of this section and the other provisions of this Agreement pertaining to the maintenance of Capital Accounts are intended to comply with Treasury Regulation Section 1.704-1(b) (or any successor provision thereto), and shall be interpreted and applied in a manner consistent with such Regulations. In the event that Managing General Partner determines that it is prudent to modify the manner in which the Capital Accounts are computed in order to comply with such Regulations, provided that it is not likely to have a material effect on the amounts distributable to any Partner without such Partner's consent and upon receipt of an opinion of tax counsel to the Partnership concluding that such modification will be given effect for federal income tax purposes, the Managing General Partner may make such modification. (c) The Managing General Partner shall revalue the Partnership's Property (based on its fair market value as of the moment immediately preceding the relevant event) and shall adjust Capital Accounts to take into account any resulting Profit or Loss (determined as if the Partnership sold all its Property for cash equal to the Property's fair market value) upon the occurrence of either of the following events: (1) the making by any Partner of any non-Pro Rata additional Capital Contribution, (2) the partial or complete withdrawal of a Partner's Partnership Interest, or (3) the admission of a Partner. (d) For the purposes of determining Percentage Interests, making allocations and distributions pursuant to Articles IV and V, and wherever else relevant in this Agreement, multiple Capital Accounts shall be maintained for each partner who -16- owns more than one class of Partnership Interest. A combined Capital Account shall also be maintained for each partner who has more than one class of Partnership Interest. The combined Capital Account shall be relevant for determining the total amount of distributions to a partner in the event of the liquidation of the Partnership. In the event that a Partner with more than one class of Partnership Interest has a positive combined Capital Account balance at the time of the liquidation of the Partnership, but has a deficit in one of the separate Capital Accounts, liquidating distributions shall be made only to the extent of the net positive balance. 13. Expenses Paid by Partners. Any Partnership expense reasonably paid by any Partner on behalf of the Partnership is an indebtedness of the Partnership to the Partner and does not increase the Partner's Partnership Interest or Percentage Interest. The Partnership shall reimburse the Partner as soon as practicable and may pay interest on the indebtedness. 14. Loans by Partners; Restrictions on Borrowing. The Managing General Partner may borrow money on behalf of the Partnership from any Partner in such amounts and for such purposes as it considers necessary, convenient or incidental to the accomplishment of the purposes of the Partnership. Each loan to the Partnership by a Partner (excluding reimbursable expenses) shall be evidenced by a promissory note or similar instrument of the Partnership, may be secured by a lien on the Property, may bear interest at a rate determined by agreement between such Partner and the Managing General Partner and may be subject to such other terms and conditions as are agreed to by such Partner and the Managing General Partner. The Partnership may prepay each loan from a Partner in whole or in part, at any time and from time to time, without premium or penalty. The Managing General Partner may not borrow money from persons other than Partners or pledge Partnership assets without the express written consent of the non-managing general partner. ARTICLE IV PROFITS AND LOSSES AND TAXABLE INCOME AND TAXABLE LOSS 15. Allocations. (a) Allocation of Profits and Losses. (i) Profits and Losses of the Partnership shall be determined for each fiscal year of the Partnership in accordance with the cash method of accounting, with such exceptions thereto as are set forth in this Agreement, and otherwise in accordance with generally accepted accounting principles applied in a consistent manner. -17- (ii) Except as otherwise provided, the Partnership's Losses, if any, arising in a fiscal year shall be allocated among the Partners as follows: (1) FIRST: To the extent of the aggregate positive Capital Account balances of the Partners as of the end of the fiscal year, Pro Rata to the Partners taking into account any changes in Partnership Percentage Interests during the fiscal year. (2) SECOND: Pro Rata, to the Managing General Partner. (iii) Profits arising in a fiscal year shall be allocated among the Partners as follows: (1) FIRST: To the General Partner until Profits allocated to the General Partner during the term of the Partnership pursuant to this Section 15(a)(ii)(1) equal Losses allocated to the General Partner during the term of the Partnership pursuant to Section 15(a)(ii)(2) then (2) SECOND: To the Partners Pro Rata taking into account any changes in Partnership Percentage Interests during the fiscal year. (b) Allocation of Taxable Income and Taxable Loss. (i) Except as otherwise provided in this section l5(b), allocations of tax items among the Partners shall be consistent with corresponding book (Profits and Losses) items (if any). For tax purposes, Profits and Losses, or any item thereof, shall be appropriately adjusted to reflect Taxable Income and Taxable Loss, or any item thereof, as determined under the Code and shall be allocated among the Partners in such a manner as to comply with the provisions of the Code and Regulations thereunder (including, if necessary, the "minimum gain chargeback provisions" of the Regulations under Section 704 of the Code). For example, any gain or loss recognized by the Partnership with respect to property contributed to the Partnership by a Partner shall be shared among the Partners so as to take account of the variation, if any, between the basis of the property to the Partnership and its fair market value at the time of contribution or revaluation, whichever is applicable, so as to comply with the requirements of Section 704 of the Code. Thus, for example, if a Partner contributes Property to the Partnership whose agreed fair market value exceeds its adjusted basis in the hands of the contributing Partner ("built-in gain"), and there have been no events giving rise to a revaluation, built-in gain with respect to such contributed Property shall first be allocated to such contributing Partner when the Partnership recognizes gain upon a disposition of such contributed Property, but not in an amount in excess of such built-in gain; the remaining balance of such recognized gain, if any, shall be allocated among the Partners as set forth herein. The allocation of built-in gain to a contributing Partner shall not increase such Partner's Capital -18- Account, because such gain was already taken into account when the built-in gain property was contributed to the Partnership. A Partner who contributes property other than cash shall provide the Managing General Partner with information necessary to verify the contributing Partner's adjusted tax basis in the items of property contributed by him to the Partnership. (ii) Generally, except as provided in section l5(b)(i), Taxable Income and Taxable Loss (and each such income and loss item) shall be allocated Pro Rata among the Partners. In the event, however, that non-Pro Rata distributions of property are made to a Partner or the net proceeds from the sale of property are distributed non-Pro Rata to a Partner, Taxable Income and Taxable Loss derived from such distributions or sales shall be allocated 100% to such Partner, subject only to such modifications as are necessary to comply with Section 704 of the Code. In addition, no allocations of Taxable Loss shall be made to a Limited Partner that would create a deficit balance in the Limited Partner's Capital Account. ARTICLE V DISTRIBUTIONS, WITHDRAWALS AND LOANS 16. Distributions. (a) Cash Flow Distributions. Cash Flow is to be distributed periodically as the Managing General Partner shall determine. (b) Partial or Complete Withdrawal by a Partner From the Partnership. (i) In the event of a partial or complete withdrawal of a Partner from the Partnership pursuant to Article VIII, the Managing General Partner shall, as promptly as is reasonably possible, distribute to the Partner any assets then owned by the Partnership that were previously contributed by such Partner to the Partnership but this distribution shall be limited to the extent it would cause the Capital Account of such Partner to be negative. If the Partner has a positive Capital Account balance, then the Partnership shall distribute to the Partner his Pro Rata share of the Marketable Securities, cash and other readily divisible assets of the Partnership. The withdrawing Partner shall also be entitled to receive cash equal in value to his Pro Rata share of the fair market value (as reasonably determined by the Managing General Partner) of any non-readily divisible assets owned by the Partnership. The Managing General Partner shall, as promptly as possible, distribute this additional amount of cash, if any, to the withdrawing Partner. Cash distributions to the withdrawing Partner shall be reduced by such Partner's Pro Rata share of the -19- liabilities of the Partnership and by any expenses incurred by the Partnership with respect to the withdrawal of the Partner. (ii) A Partner may request that all or a portion of the Marketable Securities subject to the requested withdrawal be sold by the Partnership and the net proceeds (after selling and other expenses) distributed as directed by him. In the event that the Managing General Partner is unable or unwilling to sell these Marketable Securities, it shall distribute them to the Partner, unless it is notified by the Partner to cancel the withdrawal. (iii) The Managing General Partner shall not be required to distribute to the requesting Partner any assets that the Partnership is legally restricted or prohibited from distributing to the Partner, unless steps can be taken to remove the restriction or prohibition; in which case the requesting Partner shall be charged with the expense of removing such restriction or prohibition. Any distribution hereunder shall also be subject to the limitations set forth in sections 11(c) and 17, respectively. (c) Liquidating Distributions. The net proceeds from liquidation of the Partnership's assets pursuant to its dissolution, winding-up, and termination shall be distributed, and all Profits and Losses resulting from the liquidation of the Partnership Property shall be allocated, among the Partners in the proportions and orders of priority specified in this section 16(c). (i) The Liquidator shall distribute the net proceeds from liquidation of the Partnership's assets as follows: (1) FIRST: To pay all the liabilities of the Partnership that are then due and payable, except for both Capital Contributions of Partners and liabilities to the Partners, in the order of priority required by Delaware law; then (2) SECOND: To establish any reasonable reserve that the Liquidator may determine is required for unpaid, future, or contingent liabilities or obligations of the Partnership; then (3) THIRD: To pay all liabilities of the Partnership to the Partners; Pro Rata according to the amounts of their respective liabilities; then (4) FOURTH: To the Partners to the extent of any positive balances in their Capital Accounts, Pro Rata according to the amounts of their respective positive balances; then (5) FIFTH: Any remaining net proceeds shall be distributed Pro Rata among the Partners. -20- (ii) Any Profits and Losses and Taxable Income and Taxable Loss resulting from the disposition of the Partnership's assets in the process of liquidation shall be allocated among the Partners in the manner provided in section l5. Any Property distributed in kind in the liquidation shall be valued and treated as if the Property were sold and the cash proceeds were distributed. The Profits and Losses arising from the constructive sale of the Property described in the preceding sentence shall be allocated among the Partners in the manner provided in section 15. 17. Limitation on Distributions to Partners. A Partner may receive distributions from the Partnership only to the extent the Partnership's total assets exceed its total liabilities, other than liabilities to the Partners on account of their Capital Contributions. ARTICLE VI AUTHORITY, DUTIES, AND LIABILITIES OF PARTNERS 18. Duties of Managing General Partner. The Managing General Partner, and no other Partners, shall manage the affairs of the Partnership, shall apply himself diligently for the Partnership, and shall devote to the Partnership such time as is necessary and appropriate to manage the business of the Partnership. The Managing General Partner is not required to devote all its business time to the Partnership, and it may engage in other business ventures and employment, including those in competition with the Partnership. In the performance of its duties, the Managing General Partner may hire employees and agents of the Partnership and generally shall supervise and direct all the daily operations of the Partnership. 19. Managing General Partner's Fees and Expenses. (a) Fees to Managing General Partner. In consideration for performing services described herein, the Managing General Partner may be paid a fee as agreed to by a Majority in Interest. Such fees shall be deemed earned when the services have been performed and, regardless of when paid, shall be non-executory from the date earned and shall be the obligation of the Partnership from and after that date. (b) Expenses. Except as otherwise provided herein, the Partnership shall pay all expenses of the Partnership (which expenses may be either billed directly to the Partnership or reimbursed to the Managing General Partner) which may include, but are not limited to: (i) all costs of borrowed money, taxes and assessments on the Property and other taxes applicable to the Partnership; (ii) all costs for goods and materials, whether purchased by the Partnership directly or by the Managing General Partner on behalf of the Partnership; (iii) legal, audit, accounting, -21- brokerage and other professional fees; (iv) fees and expenses paid to independent contractors, mortgage bankers, brokers, insurance brokers and other agents; (v) expenses of organizing, revising, amending, converting, modifying or terminating the Partnership; (vi) expenses in connection with distributions made by the Partnership to, and communications and bookkeeping work necessary in maintaining relations with, Partners; (vii) expenses in connection with preparing and mailing reports to Partners; (viii) costs of any accounting, statistical or bookkeeping equipment necessary for the maintenance of the books and records of the Partnership; (ix) the cost of preparation and dissemination of informational material and documentation relating to the Partnership; (x) except with respect to litigation solely among the Partners as such, costs incurred in connection with any litigation in which the Partnership is involved, as well as in the examination, investigation or other proceedings, conducted against the Partnership by any regulatory agency, including legal and accounting fees incurred in connection therewith; (xi) costs of any computer services or equipment or services of personnel used for or by the Partnership; and (xii) expenses of professionals employed by the Partnership in connection with any of the foregoing, including attorneys, accountants and appraisers. 20. Authority of Managing General Partner. Except as otherwise provided herein, the Managing General Partner may bind the Partnership to do all acts that are necessary, appropriate, or incidental to the accomplishment of the purposes of the Partnership. Any person dealing with the Partnership or the Managing General Partner may rely on a certificate signed by the Managing General Partner as to the identity of any Partner, the existence or absence of any fact or condition that is necessary to permit action by either the Partnership or the Managing General Partner or germane in any other way to the affairs of the Partnership, and the persons who are authorized to execute and deliver any documents or instruments of or on behalf of the Partnership. Without limiting the generality of the foregoing, the Managing General Partner is specifically authorized to do the following: (a) to negotiate and enter into leases and agreements with land or building owners or other Persons, and to incur obligations for, and on behalf of, the Partnership in connection with Partnership business; (b) to borrow money on behalf of the Partnership and, as security therefore, to encumber the Property; (c) to prepay, in whole or in part, refinance, increase, modify or extend any obligation affecting the Property; (d) to sell, exchange, convey and lease the Property; (e) to employ from time to time, at the expense of the Partnership, other Persons required for the operation and management of the -22- Partnership business, including accountants, attorneys and others, who may be Partners, on such terms and for such compensation as the Managing General Partner determines to be reasonable and this may include Persons which are Affiliates; (f) to pay all attorney's and accountant's fees and other costs incurred in connection with the formation of the Partnership business and the completion of all steps necessary or advisable for the Partnership to comply with applicable laws; (g) to assume the responsibilities imposed on the Managing General Partner by the Act; (h) to compromise, arbitrate or otherwise adjust claims in favor of or against the Partnership and to carry such insurance as the Managing General Partner considers advisable; (i) to exercise the voting rights associated with the securities and other Property owned by the Partnership; (j) to commence or defend litigation with respect to the Partnership or any assets of the Partnership as the Managing General Partner considers advisable, at the expense of the Partnership; (k) to make, execute, acknowledge and deliver documents of transfer and conveyance and any other instruments that may be necessary or appropriate to carry out its powers; and (l) to do all such acts and take all such proceedings and execute all such rights and privileges, although not specifically mentioned herein, as the Managing General Partner considers necessary to conduct the business of the Partnership and to carry out the purposes of the Partnership. Notwithstanding the foregoing, the Managing General Partner shall not take any of the fo11owing actions without the consent of a Majority in Interest: (1) assign all or any part of the property for the benefit of its creditors or confess a judgment against the Partnership; (2) take any action in contravention of the Act, the certificate of limited partnership or this Agreement; (3) sell, lease, transfer, assign, pledge or encumber the property of the Partnership (except with respect to transactions to which section 32 or section 37 applies); -23- (4) loan an amount of money in excess of $100,000 to a Partner; or (5) admit a Person as a General Partner of the Partnership. 21. Special Limitation. During the period the Partners have determined that the Partnership will only be availed of only for investment purposes, which shall be the period, if any, contemplated by Section 6(c), the Managing General Partner may not purchase, sell, or exchange Marketable Securities or assets that pertain to a Class B Partnership Interest or other security without the consent of the Partners to whom the Marketable Securities are deemed owned or allocated for federal income tax purposes, but the Managing General Partner shall have voting rights and all other aspects of management and control over such Marketable Securities and assets to which a Class B Partnership Interest pertains. 22. Dealing with Affiliates. The Managing General Partner may employ and enter into contracts and other arrangements with any Person, including an Affiliate, and may obligate the Partnership to pay reasonable compensation for services rendered by such Persons on terms that, in the judgment of the Managing General Partner, are not less favorable to the Partnership than would be available from an unrelated party. 23. Indemnification of Managing General Partner. The Managing General Partner need not secure the performance of its duties by bond or otherwise. A General Partner is not liable, responsible, or accountable in damages or otherwise to any Partner or to the Partnership for any act taken or omission made in good faith on behalf of the Partnership and in a manner that such General Partner reasonably believes to be within the scope of the authority granted to it by this Agreement and in the best interest of the Partnership, except for gross negligence or willful misconduct. Any loss, expense (including attorneys' fees) or damage incurred by a General Partner by reason of any act or omission by it in good faith on behalf of the Partnership and in a manner that it reasonably believes to be within the scope of the authority granted to it by this Agreement and in the best interest of the Partnership (but not, in any event, any loss, expense or damage incurred by a General Partner by reason of gross negligence or willful misconduct) shall be paid to the indemnified General Partner from the Partnership's assets, to the extent available. 24. Liability of Limited Partners. The liability of each Limited Partner is limited to its Capital Contributions. Except as provided by the Act, a Limited Partner is not required to contribute money to, or for the liabilities of the Partnership, and is not personally liable for any loss, liability or other obligations of the Partnership. 25. Authority of Limited Partners and Non-Managing General Partners. The Limited Partners shall not participate in the management of, or have any control over, -24- the business or policies of the Partnership, nor any control over Marketable Securities, except as required by the Act or permitted by section 20, and the Limited Partners shall not transact any business in the name of the Partnership. Notwithstanding the foregoing, the Partners may make the election set forth in Treas. Reg. ss. 1.761-2 to have the Partnership excluded from the provisions of Subchapter K of Chapter 1 of the Code. In the event a Partner ceases (whether through removal, death, or resignation) to serve as Managing General Partner, a Majority in Interest of the Partners shall appoint another Partner to serve as the Managing General Partner. ARTICLE VII TRANSFER OF PARTNERSHIP INTERESTS 26. Limited Partners. A Limited Partner shall not pledge, encumber or hypothecate his interest in the Partnership without the consent of the Managing Partner. Otherwise, subject to sections 28 and 29, and only if the Managing General Partner consents, a Limited Partner may make an Assignment of a Limited Partnership Interest. However, an Assignment does not relieve the Limited Partner of his obligations and liabilities under this Agreement, or constitute the assignee a Limited Partner, or confer on the assignee any Partnership Rights. An assignee of a Limited Partner's Partnership Interest may be admitted and substituted as a Limited Partner and acquire Partnership Rights only upon the satisfactory completion of the requirements specified in section 29. The failure or refusal of the Managing General Partner to consent to the admission of an assignee as a Limited Partner does not affect the right of the assignee to the Partnership Interest of his predecessor in interest. 27. General Partner. Subject to section 28, a General Partner may make an Assignment, directly or indirectly, of all or any part of its Partnership Interest. However, an Assignment does not relieve such General Partner of its obligations and liabilities under this Agreement, or constitute the assignee a General Partner, or confer on the assignee any Partnership Rights. Subject to section 28, and only if a Majority in Interest consents, a General Partner may make an Assignment of both its Partnership Interest and its Partnership Rights if the assignee assumes in writing all such General Partner's obligations and liabilities under this Agreement and if all the applicable requirements of section 29 are satisfied. Upon compliance with the immediately preceding sentence, an assignee of such General Partner has all the rights and powers granted to such General Partner under this Agreement and has all the obligations and liabilities of such General Partner under this Agreement. 28. Restriction on Transfer. Notwithstanding any other provision of this Agreement, an assignment of a Partnership Interest shall not be made, and consent thereto shall be withheld: -25- (a) Unless the Managing General Partner has satisfied itself (by seeking advice of legal counsel or otherwise, with any resulting Partnership expense to be reimbursed by the assignor) that the assignment will not have any significant adverse tax effect upon the Partnership or the other Partners; (b) Unless the Managing General Partner has satisfied itself (by advice of legal counsel, with any resulting Partnership expense to be reimbursed by the assignor) that the proposed assignment may be made without registration under any applicable securities law; and it will not violate any applicable securities law (including investor suitability standards); (c) If the Assignment is sought to be made to: (i) a minor or incompetent, except if made by will or intestate succession, or (ii) to a Person which is not an Affiliate. 29. Admission of Substitute Partner. Subject to the other provisions of this Agreement, an assignee of a Partnership Interest may be admitted as a Partner and granted Partnership Rights only if: (a) the Assignment is made pursuant to a written instrument in a form satisfactory to the Managing General Partner and specifies the intention of the assignor that the assignee be substituted as a Partner; (b) the Managing General Partner consents to the admission by executing two counterparts of this Agreement that evidences the Partnership Rights of the assignee, and if the assignee is to be admitted as a Partner a Majority in Interest consent to the admission; (c) the assignee accepts, signs and agrees to be bound by this Agreement, by executing two counterparts of this Agreement, including an amended Exhibit A, and such other documents or instruments as the Managing General Partner requires to effect the admission of the assignee as a Partner; (d) the assignee provides the Managing General Partner with evidence satisfactory to it of the assignee's authority to become a Partner under the terms of this Agreement; (e) the assignee pays all filing, publication and other costs (including reasonable attorneys' fees) incurred by either the Partnership or the Managing General Partner in connection with the admission and substitution of the assignee as a Partner. -26- Notwithstanding an assignee's satisfaction of any or all of the conditions specified above, the Managing General Partner, in its absolute discretion, may refuse to consent to the assignee's admission as a Partner, in which event the assignee will not obtain any Partnership Rights, but will retain only the rights of an assignee under sections 26 or 27. 30. Rights of Partner After Assignment and Substitution. Upon the Assignment of all his Partnership Interest, and the admission of a substitute partner, a Partner shall cease to be a Partner and to have any Partnership Rights. 31. Allocations and Distributions After Assignment. For the purposes of allocations of Profits and Losses, Taxable Income or Taxable Loss, and distributions, an Assignment of a Partnership Interest is effective as to the Partnership, and shall be reflected in the records of the Partnership, as of the date that the Managing Genera1 Partner receives written notice of the Assignment. The Taxable Income or Taxable Loss, Profits and Losses and cash and other distributions in respect of the assigned Partnership Interest with respect to the fiscal year in which the Assignment of the Partnership Interest occurs shall be divided between the assignor and the assignee according to the method provided to the Managing General Partner by the assignor and the assignee, so long as such method is permitted under the Code and does not adversely affect the other Partners or the Partnership from a tax or economic perspective. The method of allocation shall be provided to the Managing General Partner in the written notice of the Assignment. Any additional costs for computing the allocations hereunder shall be paid by the assignor or assignee, as the case may be. The written notice referred to above shall also contain information as to whether the assignor or assignee shall be responsible for the payment of such additional cost, if any. ARTICLE VIII RETIREMENT, WITHDRAWAL, OR REMOVAL OF PARTNERS 32. Withdrawal of General Partner or Limited Partner. (a) A Limited Partner may, at any time, withdraw all or part of his Partnership Interest from the Partnership by providing written notice thereof to the Managing General Partner. Immediately after the receipt of such written notice from a Partner, the Managing General Partner shall make the appropriate distributions to the Partner in partial or complete redemption of his Partnership Interest as set forth in section 16(b). (b) A partial withdrawal by a Partner shall be made in increments of one-tenth (1/10th) of one percent (1%) of a Percentage Interest. The written notice of withdrawal from a Partner to the Managing General Partner must -27- state whether the withdrawal is a partial or complete withdrawal and, if a partial withdrawal, must state the Percentage Interest that is being withdrawn. A Partner shall not make a partial withdrawal that will result in his remaining Percentage Interest becoming less than one-tenth (1/10th) of one percent (1%) immediately after the withdrawal. (c) The Managing General Partner agrees that it will fully cooperate to the extent permitted by law to accomplish a withdrawal requested by a Partner hereunder. It also agrees that it will not take any action that will obstruct or render impossible the application of this section 32 (such as to pledge the Partnership's Marketable Securities as collateral to creditors of the Partnership), unless such action is essential to accomplish the purposes of the Partnership. (d) The partial withdrawal of a Limited Partner does not dissolve or terminate the Partnership unless there is only one Partner then remaining. The remaining Partners shall amend this Agreement to reflect the partia1 or complete withdrawal of the Partner from the Partnership, if and to the extent necessary. (e) Upon the giving of the notice of withdrawal pursuant to Paragraph (a), and upon the dissolution of the Partnership, the voting rights with respect to any Marketable Securities allocable to the Percentage Interest being withdrawn shall be vested in the withdrawing Partner or Partners, and the Partnership shall have no voting rights with respect to such stock. (f) The complete withdrawal of all the Limited Partners shall constitute a dissolution of the Partnership pursuant to Article IX. 33. Retirement, Removal, or Withdrawal of Managing General Partner. The Managing General Partner may withdraw any part of its General Partnership Interest without the consent of a Majority in Interest. The Retirement, removal, or withdrawal of the Managing General Partner shall dissolve the Partnership only if there is no successor General Partner. Notwithstanding the foregoing or anything else in this Agreement to the contrary, a merger, consolidation, or reorganization of a Managing General Partner who is not a natural person, or a sale of all or substantially all its assets that includes its Partnership Interest, is not a Retirement or withdrawal of such Managing General Partner if the resulting, surviving or acquiring Person is an Affiliate and becomes substituted as the Managing General Partner of the Partnership. The resulting, surviving or acquiring Person is substituted as the Managing General Partner without further act if it gives notice of the substitution to the Partners before the effective date of the merger, consolidation, reorganization or sale. Each Partner consents to the admission and substitution of such substitute Managing General Partner pursuant to this section 33, and no further consent or approval of any Partner is required. -28- 34. Retirement of Limited Partner. The Retirement of a Limited Partner does not dissolve or terminate the Partnership except as provided in section 36(g), but the legal or personal representatives, heirs, successors, assignees, or stockholders of a Retired Limited Partner, subject to section 26, shall succeed to the Partnership Interests of the Retired Limited Partner and may make an Assignment of the Partnership Interests within the limitations set forth in this Agreement. 35. Rights of Partner After Retirement, Removal, or Withdrawal. A Partner ceases to have any Partnership Rights upon his Retirement, removal, or complete withdrawal from the Partnership. However, until the appropriate distributions, if any, are made to a Retired, removed, or withdrawn Partner for his Partnership Interest, the Retired, removed, or withdrawn Partner is entitled to receive the allocations of Profits and Losses, Taxable Income or Taxable Loss and all distributions referred to in section 16 applicable to his Partnership Interest. ARTICLE IX DISSOLUTION 36. Events of Dissolution. The Partnership shall be dissolved, and unless reconstituted shall be terminated, upon: (a) the expiration of its term; (b) the vote of a Majority in Interest to dissolve the Partnership; (c) the Partnership being adjudicated insolvent or bankrupt; (d) the Retirement, removal, or withdrawal of the Managing General Partner; (e) the death of Barry Silverstein; or (f) the sale of all or substantially all of the Partnership's Property. (g) the complete withdrawal of the Limited Partners. 37. Winding-Up and Distributions. Upon the dissolution of the Partnership pursuant to section 36, and unless the Partnership is reconstituted, the winding-up of the Partnership's business and the liquidation and distribution of Partnership assets must be carried out with due diligence and in a timely manner, and consistent with both the requirements of applicable law and the following provisions of this section: -29- (a) The Managing General Partner shall be responsible for taking all actions relating to the winding-up, liquidation, and distribution of assets of the Partnership, unless its Retirement, removal, or withdrawal causes the dissolution, in which case the fiscal agent, liquidator, or receiver appointed (without judicial action) by a Majority in Interest shall be so responsible. The Managing General Partner, or the appointed fiscal agent, liquidator, or receiver, is referred to in this Agreement as the "Liquidator." A Limited Partner can be appointed to be the Liquidator. The Liquidator shall file all certificates or notices of the dissolution of the Partnership as required by law. Upon the complete liquidation and distribution of the Partnership assets, the Partnership shall terminate, and the Liquidator shall execute, acknowledge, and cause to be filed all certificates and notices required by law to terminate the Partnership. (b) The Liquidator shall proceed without unnecessary delay to sell and otherwise liquidate the Partnership's assets. Unless directed otherwise by a Majority in Interest, all Marketable Securities, cash and other readily divisible or fungible assets of the Partnership shall be distributed directly to the Partners in the manner set forth in section 16(c)(i). The Liquidator shall promptly sell the other assets of the Partnership unless it determines that an immediate sale of part or all of such assets would cause undue loss to the Partners. In such case, the Liquidator, to avoid such loss, may defer the liquidation of the Partnership assets for a reasonable time, except for those liquidations that are necessary to satisfy the debts and liabilities of the Partnership to persons and parties other than the Partners. The Liquidator shall distribute the proceeds from the liquidation of the Partnership's assets as provided in section 16(c). (c) Upon the dissolution of the Partnership pursuant to section 36, and unless the Partnership is reconstituted, the Liquidator shall cause the accountants for the Partnership to prepare within ninety (90) days after the occurrence of the event of dissolution, and immediately thereafter shall furnish to each Partner, a statement setting forth the assets and liabilities of the Partnership as of the date of its dissolution. The Liquidator, promptly following the complete liquidation and distribution of the Partnership's assets, shall cause the Partnership's accountants to prepare, and the Liquidator shall furnish to each person who is a Partner immediately before the dissolution, a statement showing the manner in which the Partnership assets were liquidated and distributed. 38. Distribution of Liquidation Proceeds and Assets and Allocation of Gains and Losses. Subject to the last sentence of 12(d), the net proceeds from liquidation of the Partnership's assets and the unliquidated Property of the Partnership shall be distributed, and all Profits and Losses resulting from the liquidation of the Partnership shall be allocated, among the Partners in the proportions and orders of priority specified in section 16(c). -30- 39. Limitation of Liability of Partners. Upon the dissolution of the Partnership and the distribution of the net liquidation proceeds pursuant to section 36 and section 16(c), each Partner shall look solely to the assets of the Partnership for the payment of his unreturned Capital Contributions, and if the Partnership's assets remaining after the payment or discharge of the debts and liabilities of the Partnership are insufficient to pay the full amount of the unreturned Capital Contributions of each Partner, the Partner shall have no recourse or claim against any Partner or the Partnership with respect to its unreturned Capital Contributions, except for claims for fraud, gross negligence, or breach of fiduciary duty. 40. Waiver of Right of Partition of Assets. Each Partner, and for his heirs, successors, and assigns, waives his right to the partition of the assets of the Partnership upon the dissolution and liquidation of the Partnership. ARTICLE X ACCOUNTING YEAR, BOOKS, RECORDS, AND REPORTS 41. Books and Records. In accordance with the Act, the Managing General Partner shall maintain at the principal office of the Partnership a complete and accurate set of books of records and accounts, in which it shall make full and complete entries of all dealings or transactions relating to the Partnership's business and where it shall keep all supporting documentation of transactions with respect to the conduct of the Partnership's business. The Managing General Partner may delegate responsibility to those persons as a Majority in Interest and agree to compile and maintain all required information and prepare all required materials provided for in this Agreement. Each Partner or his duly authorized representative, upon five days' advance notice to the Managing General Partner, may examine during normal business hours the books of the Partnership and all other records and information concerning the operation of the Partnership. 42. Reports. If requested by a Partner at least 30 days prior to the end of a quarter, within 60 days after the end of each fiscal quarter in each fiscal year of the Partnership, the Managing General Partner shall cause to be prepared and sent to each Partner a balance sheet, income statement and cash flow statement of the Partnership for and as of the end of that fiscal quarter, in each case unaudited but accompanied by a report of the activities of the Partnership for that quarter. Within 90 days after the end of each fiscal year of the Partnership, the Managing General Partner shall cause to be prepared and sent to each Partner a financial report consisting of (a) a balance sheet as of the end of the fiscal year; (b) statements of income, partner's equity, and changes in financial position for the fiscal year; (c) if requested by a Partner, the opinion of the Partnership's certified public accountant concerning the foregoing financial statements; (d) a summary of the Partnership's activities for the fiscal year; -31- (e) a statement showing the distributions to each Partner during the fiscal year and identifying any distributions which constitute a return of Capital Contribution; and (f) a statement showing the amount of Taxable Income or Taxable Loss, and listing each item of income, gain, loss, deduction, or credit allocated or charged against the Partner for federal and state income tax purposes. 43. Bank Accounts. The Managing General Partner shall maintain the bank accounts of the Partnership in such financial institutions as the Managing General Partner considers appropriate. The Managing General Partner shall make or permit withdrawals from the Partnership's bank accounts on the signature of the Managing General Partner. 44. Tax Elections. If the Partnership has not made the election set froth in Treas. Reg. ss. 1.761-2, or if Subchapter K of Chapter 1 of the Code applies to the Partnership, the Partnership shall file an election under Section 754 of the Code, relating to the optional adjustment to the basis of partnership property, at the first time it is permitted to do so after the beginning of the term of this Partnership. The Managing General Partner shall make or waive, at its discretion, all other tax elections required or permitted to be made by the Partnership under the Code. 45. Accounting Method and Fiscal Year. The Managing General Partner shall maintain the Partnership records and books of accounts in accordance with the cash method of accounting, with such modifications as are set forth in this Agreement, and otherwise in accordance with genera11y accepted accounting principles consistently applied. The fiscal year of the Partnership is the calendar year. ARTICLE XI GENERAL PROVISIONS 46. Power of Attorney. Each Limited Partner (including each substitute Limited Partner), by executing a counterpart of this Agreement, irrevocably constitutes and appoints, with full power of substitution, the General Partner as his true and lawful attorney-in-fact, with full power and authority in his name, place and stead to make, execute, acknowledge, deliver, swear to, publish, record and file: (a) any certificate or other instrument that may be required to be fi1ed, published or recorded by the Partnership under the Act or any other law of Delaware or that the Managing Genera1 Partner considers advisable to file, publish or record; (b) all documents (including schedules and amendments to this Agreement) that may be required to effect the continuation or reinstatement of the -32- Partnership, admit an additional or substitute Partner (other than any approval required of Limited Partners), reduce the Capital Contributions of a Partner, or dissolve and terminate the Partnership; and (c) all amendments to this Agreement adopted in accordance with section 54. The foregoing power of attorney is coupled with an interest, resulting from each Limited Partner's reliance on the power of the attorney-in-fact to act as contemplated by this Agreement for the purposes described in this section 46. The foregoing power of attorney shall survive the Retirement of a Limited Partner and the Assignment by any Limited Partner of all or any part of his Partnership Interest, except that when an assignee is granted Partnership Rights and admitted as a substitute Limited Partner the power of Attorney of the assignor Limited Partner shall survive the Assignment only for the purpose of enabling the non-managing General Partner to make, execute, acknowledge, deliver, swear to, publish, record and file every instrument necessary to effect the substitution. 47. Partnership Contracts. The Managing General Partner may enter into agreements and contracts on behalf of the Partnership only if they are in writing and clearly indicate to the other parties that the Partnership is a general partnership of which the Managing General Partner is a general partner. 48. Conveyances. Subject to section 20, the Managing General Partner may sign any deed, mortgage, lease, bill of sale, security agreement, pledge, contract or other instrument or commitment purporting to convey or encumber any of the Partnership's Property or any interest therein, whether now or subsequently owned or leased at any time by the Partnership, and no other signature is required. 49. Notices. To be effective, a notice required or permitted by this Agreement must be in writing, or by telegram, telex or telecopy if promptly confirmed in writing. A notice is given when delivered or, if mailed, when deposited in a United States postal service letterbox to be sent by first class, postage-prepaid, certified mail, with return receipt requested (whether or not the sender receives the return receipt), and addressed, if to a Partner, at his registered address listed on Exhibit A and, if to the Managing General Partner or the Partnership, to the attention of such Managing General Partner at the Partnership's principal business office. 50. Consents. Any consent required by this Agreement may be given as follows: (a) by a writing given by the consenting Partner and received by the Managing General Partner or other appropriate recipient at or before the -33- occurrence of the action or other thing for which the consent was solicited, unless the consent is nullified by: (i) A writing from the consenting Partner that is received by the Managing General Partner before the occurrence of the action or other thing for which the consent was so1icited; or (ii) the negative vote by the consenting Partner at any meeting called for the purpose of considering the action or other thing. (b) by the affirmative vote of the consenting Partner at any meeting called for the purpose of considering the action or other thing for which the Partner's consent was solicited. 51. Meetings. The Managing General Partner may call meetings of the Partners for any purpose, at any, time. The Managing General Partner shall call a meeting of the Partners within 30 days after he receives from a Majority in Interest a written request for a meeting, stating the purpose of the requested meeting and the matters proposed for consideration. Meetings of the Partners may be held at such time, date and place as the Managing General Partner designates. The Managing General Partner shall give notice of any meeting of the Partners not less than ten nor more than 60 days before the date of the meeting, to each Partner at his registered address listed on Exhibit A. The notice shall state the time, date and place of the meeting, the purpose of the meeting and the Partner at whose direction or request the meeting is called. Except in the case of emergency, meetings of the Partnership shall be held in Delaware or South Carolina. If a meeting is adjourned to another time or place, notice of the adjourned meeting is not required if the time and place of the adjournment is announced at the called meeting. The presence in person or by proxy of a Majority in Interest constitutes a quorum at a meeting. Any notice of a meeting required by this section may be waived in writing at, before or after the meeting and shall be deemed to be waived by each Partner who is present in person or by proxy at the meeting. Only those persons who are Partners at the close of business on the day before the meeting are entitled to vote at the meeting. Any Partner entitled to vote at a meeting may authorize any person to act for him by written proxy if a copy of the proxy is delivered to the Managing General Partner before the commencement of the meeting. To be effective, a proxy must be signed by the Partner (and, if applicable, each co-owner) or his duly appointed attorney-in-fact, and no proxy shall be valid for more than 11 months after its date. A proxy is revocable at the pleasure of the Partner granting it. 52. Binding Effect; Counterparts. The covenants and agreements contained in this Agreement are binding on, and inure to the benefit of, the legal and personal representatives, heirs, successors and permitted assignees of the parties to this Agreement. The parties may execute this Agreement in any number of counterparts, -34- each of which will be an original, but all of which together will constitute one and the same agreement. 53. Choice of Law. This Agreement and the rights and obligations of the Partners under it are governed by, and construed and enforced in accordance with, the laws of Delaware. 54. Complete Agreement; Modification. This Agreement contains the final, complete and exclusive expression of the understanding among the Partners with respect to the Partnership and its purposes and objectives and supersedes any prior or contemporaneous agreement or representation, oral or written, by any of them. Except to admit a new or a substitute Partner or to reflect the withdrawal or Retirement of a Partner, this Agreement and every provision of it may be modified or amended only by an agreement in writing signed by or on behalf of all Partners. 55. Evidence of Partnership Interests. The Partnership Interest of each Partner is evidenced exclusively by a counterpart of this Agreement (including Exhibit A) that has been signed and dated by the Managing General Partner. 56. Tax Matters Partner. The General Partner or its designee shall be the "tax matters partner" of the Partnership for federal income tax purposes. Pursuant to Section 6223(c)(2) of the Code, upon receipt of notice from the Internal Revenue Service of the beginning of an administrative proceeding with respect to the Partnership, the General Partner, as the tax matters partner, shall furnish the Internal Revenue Service with the names, addresses, and Percentage Interests of each of the Partners. The General Partner agrees not to enter into a settlement agreement pursuant to Section 6224 of the Code without providing at least 30 days advance written notice to each Partner. As tax matters partner, the General Partner shall have absolute discretion regarding whether to seek judicial review of any administrative determination and, if it determines to seek judicial review of Internal Revenue Service action pursuant to Section 6226 of the Code, then the General Partner shall select the judicial forum for such review. The tax matters partner shall receive no compensation for its services as such. The Partnership shall bear all third party costs and expenses incurred by the tax matters partner in performing its duties as such. Nothing herein shall be construed to restrict the Partnership from engaging an accounting firm or law firm to assist the tax matters partner in discharging its duties hereunder. 57. Gender and Number. As used in this Agreement, the masculine gender includes the feminine and neuter, and the singular includes the plural. 58. Title. Title to any Property acquired by the Partnership shall be taken in the name of the Partnership. -35- IN WITNESS WHEREOF, this agreement has been executed by or on behalf of each Partner as of the date written beside his name. GENERAL PARTNER: S.B. Investment Management, Inc. /s/ Steven Blechner ------------------------------------------ Steven Blechner 11/22/99 As its President Effective November 22, 1999 LIMITED PARTNER: /s/ Barry Silverstein ------------------------------------------ Barry Silverstein 11/19/99 FIRST AMENDMENT TO THE LIMITED PARTNERSHIP AGREEMENT OF SILVERSTEIN INVESTMENTS LIMITED PARTNERSHIP II This First Amendment of Agreement of Limited Partnership is made as of the 16th day of September 2003, by and among S.B. INVESTMENT MANAGEMENT, Inc., as general partner (the "General Partner"), and BARRY SILVERSTEIN as limited partner (the "Limited Partner"). WHEREAS, the Limited Partnership Agreement of Silverstein Investments Limited Partnership II (the "Agreement") was executed on the 22nd day of November, 1999 under the laws of the state of Delaware; and; WHEREAS, Paragraph 54 of the Agreement provides that the Agreement may be amended by an agreement in writing signed by or on behalf of all Partners; and WHEREAS, the undersigned, being the General Partner and persons representing all of the Limited Partnership interests, wish to amend and restate the Agreement as hereinafter set forth. NOW, THEREFORE, the undersigned do hereby amend the Agreement as follows: 1) Section 32.(a) of the Agreement is hereby amended in its entirety to read as follows: 32.(a) A Limited Partner may withdraw all or part of his Partnership Interest from the Partnership only with the prior written consent of the Managing General Partner. 2) Section 36. of the Agreement is hereby amended in its entirety to read as follows: 36. Events of Dissolution. The Partnership shall be dissolved, and unless reconstituted shall be terminated, upon: (a) the expiration of its term: (b) the Partnership being adjudicated insolvent or bankrupt; (c) the Retirement, removal, or withdrawal of the Managing General Partner; (d) the sale of all or substantially all of the Partnership's Property; or (e) the complete withdrawal of the Limited Partner. 3) Except as amended hereby, the Agreement remains in full force and effect. IN WITNESS WHEREOF, the parties have executed this agreement as of the date first set forth above. GENERAL PARTNER: S.B. Investment Management, Inc. --------------------------------------- Steven Blechner As its President LIMITED PARTNER: /s/ Barry Silverstein --------------------------------------- Barry Silverstein IN WITNESS WHEREOF, the parties have executed this agreement as of the date first set forth above. GENERAL PARTNER: S.B. Investment Management, Inc. /s/ Steven Blechner --------------------------------------- Steven Blechner As its President LIMITED PARTNER: --------------------------------------- Barry Silverstein SECOND AMENDMENT to the LIMITED PARTNERSHIP AGREEMENT of SILVERSTEIN INVESTMENT LIMITED PARTNERSHIP II THIS SECOND AMENDMENT to the LIMITED PARTNERSHIP AGREEMENT of SILVERSTEIN INVESTMENT LIMITED PARTNERSHIP II (the "Partnership") (this "Amendment") is made as of June 24, 2004, by and among (i) S.B. Investment Management, Inc., (ii) Trudy Silverstein and Dennis McGillicuddy, as Trustees of the JM Silverstein 2003 CLAT, which trust was created under indenture dated September 22, 2003 by and between Barry Silverstein, as Grantor, and Trudy Silverstein and Dennis McGillicuddy, as Trustees (the "JM Silverstein 2003 CLAT") (iii) Mark Shale Silverstein and Dennis McGillicuddy, as Trustees of the Mark S. Silverstein 2003 CLAT, which trust was created under indenture dated September 22, 2003 by and between Barry Silverstein, as Grantor, and Mark Shale Silverstein and Dennis McGillicuddy, as Trustees (the "Mark S. Silverstein 2003 CLAT"), (iv) Mark Shale Silverstein and Dennis McGillicuddy, as Trustees of the Susan S. Potter 2003 CLAT, which trust was created under indenture dated September 22, 2003 by and between Barry Silverstein, as Grantor, and Mark Shale Silverstein and Dennis McGillicuddy, as Trustees (the "Susan S. Potter 2003 CLAT") and (v) Mark Shale Silverstein and Dennis McGillicuddy, as Trustees of the Thomas Benjamin Silverstein 2003 CLAT, which trust was created under indenture dated September 22, 2003 by and between Barry Silverstein, as Grantor, and Mark Shale Silverstein and Dennis McGillicuddy, as Trustees (the "Thomas Benjamin Silverstein 2003 CLAT"). Capitalized terms used but not otherwise defined herein are defined in the Limited Partnership Agreement of the Partnership (the "Agreement"). WHEREAS, the parties hereto wish to amend that certain Agreement, dated as of November 22, 1999; WHEREAS, the parties hereto wish to remove the consent requirement of a Majority in Interest as to certain transactions to be taken on behalf of the Partnership by the Managing General Partner; NOW, THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Amendment hereby agree as follows: 1. Purpose of Partnership. Upon the date hereof, Section 6(a)(ii) of the Agreement is amended in its entirety to read as follows: "acquire, hold, sell, own, improve, develop or lease other types of property in addition to Marketable Securities, and" 2. Authority of Managing General Partner. Upon the date hereof, Section 20(3) shall be deleted in its entirety. 3. Amendment and Waiver. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Amendment shall be effective unless such modification, amendment or waiver is approved in writing in accordance with Section 54 of the Agreement. The failure of any party to enforce any of the provisions of this Amendment shall in no way be construed as a waiver of such provisions and shall not affect the right of such party thereafter to enforce each and every provision of this Amendment in accordance with its terms. 4. Severability. Whenever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Amendment shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein. 5. Entire Agreement. Except as otherwise expressly set forth herein, this document embodies the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way. 6. Successors and Assigns. Except as otherwise provided herein, this Amendment shall bind and inure to the benefit of and be enforceable by the Partnership, the parties hereto and their respective successors and assigns. 7. Counterparts. This Amendment may be executed in separate counterparts (including by means of telecopied signature pages), each of which shall be an original and all of which taken together shall constitute one and the same agreement. 8. Governing Law. This Amendment is governed by and shall be construed in accordance with the law of the States of Delaware, excluding any conflict-of-laws rule or principal that might refer the governance or construction of this Amendment to the law of another jurisdiction. 9. Descriptive Headings. The descriptive headings of this Amendment are inserted for convenience only and do not constitute a part of this Amendment. * * * * * 2 IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the day and year first above written. S.B. INVESTMENT MANAGEMENT, INC. By: /s/ Steven Blechner ------------------------------ Name: Steven Blechner Its: President JM SILVERSTEIN 2003 CLAT By: /s/ Dennis J. McGillicuddy ------------------------------ Name: Dennis J. McGillicuddy Its: Trustee By: /s/ Trudy Silverstein ------------------------------ Name: Trudy Silverstein Its: Trustee MARK S. SILVERSTEIN 2003 CLAT By: /s/ Dennis J. McGillicuddy ------------------------------ Name: Dennis J. McGillicuddy Its: Trustee SUSAN S. POTTER 2003 CLAT By: /s/ Dennis J. McGillicuddy ------------------------------ Name: Dennis J. McGillicuddy Its: Trustee By: /s/ Mark S. Silverstein ------------------------------ Name: Mark S. Silverstein Its: Trustee THOMAS BENJAMIN SILVERSTEIN 2003 CLAT By: /s/ Dennis J. McGillicuddy ------------------------------ Name: Dennis J. McGillicuddy Its: Trustee By: /s/ Mark S. Silverstein ------------------------------ Name: Mark S. Silverstein Its: Trustee EX-5 5 ex-5.txt Exhibit 5 AGREEMENT OF LIMITED PARTNERSHIP OF JMB FAMILY LIMITED PARTNERSHIP AGREEMENT OF LIMITED PARTNERSHIP made as of the 23rd day of May, 2001, among BARRY SILVERSTEIN, as general partner (the "General Partner"), and BARRY SILVERSTEIN and TRUDY SILVERSTEIN, as limited partners (individually, a "Limited Partner" and collectively, the "Limited Partners"). WHEREAS, the parties hereto wish to enter into a limited partnership (the "Partnership") with each other in accordance with the terms hereof to carry on certain investment activities; NOW, THEREFORE, in consideration of the mutual agreements contained herein, the parties agree as follows: ARTICLE I GENERAL PROVISIONS 1.01. Commencement. The Partnership shall, upon the terms and subject to the conditions set forth herein, commence its existence subject to the provisions of the Delaware Revised Uniform Limited Partnership Act (the "Act") as of the date hereof. 1.02. Duration. The Partnership will continue until December 31, 2033, unless earlier dissolved and terminated as herein provided. 1.03. Names, Status and Residences of Partners. The names, status and places of residence of the General Partner and of the Limited Partners (individually, a "Partner," and collectively, the "Partners") are set forth in Schedule A attached hereto. 1.04. Filing and Publication of Certificate. The General Partner has executed, acknowledged and filed or shall execute, acknowledge and file with the office of the Secretary of State of the State of Delaware the requisite certificates to comply with the provisions of the Act. 1.05. Power of Attorney. The Limited Partners hereby constitute and appoint the General Partner their true and lawful attorney to make, sign, execute, certify, acknowledge and file on behalf of the Limited Partners (i) any certificates of amendment or certificate of dissolution required under the Act and to include therein all information required by law and (ii) any documents, agreements and instruments necessary or related to the business and operation of the Partnership. 1.06. Purposes of Partnership. The purposes of the Partnership are to purchase or otherwise acquire, hold for investment or sell or otherwise dispose of or realize upon, and generally deal in all forms of securities including limited partnership interests, stocks and bonds, real property and interests in real property, and interests or participations in other property or assets of any kind or description created or issued by any person, firm, partnership, syndicate or other entity, to exercise as owner or holder of the foregoing all rights, powers and privileges in respect thereof and to do all acts and things necessary or appropriate for the presentation, protection, improvement and enhancement in value of the foregoing. Without limiting the generality of the foregoing, the Partnership may carry out its business and accomplish its purposes as principal, whether by or through trustees or agents, alone or with associates, or as a member of or as a participant in any firm, association, trust, syndicate or other entity. The exercise of any powers pursuant to Article II hereof shall be deemed consistent with the purposes of the Partnership. 1.07. Name of Partnership. The name of the Partnership will be JMB Family Limited Partnership, or such other name as the General Partner shall choose at any time. -2- 1.08. Principal Office. The principal place of business of the Partnership, and such additional places of business of the Partnership as the General Partner may from time to time desire to establish, shall be located at such place or places inside or outside of the State of Delaware as the General Partner may determine from time to time. 1.09. Liability of General Partner. The General Partner shall be liable for the repayment, satisfaction and discharge of all debts, liabilities and obligations of the Partnership. 1.10. Liability of Limited Partners. Subject to the provisions of the Act, no Limited Partner shall be liable for the repayment, satisfaction and discharge of all debts, liabilities and obligations of the Partnership in excess of the balance of his, her or its respective Capital Account (as defined in Section 4.02 hereof). 1.11. Additional Limited Partners. The General Partner may admit additional Limited Partners to the Partnership, without the consent of any Limited Partner. Admission of any partner hereunder shall not be a cause of dissolution of the Partnership. ARTICLE II POWERS 2.01 The Partnership shall have the following powers: (a) Investments. To invest and trade, on margin or otherwise, in capital stock, bonds, notes, debentures, interests in limited partnerships, mortgages including senior and junior mortgages and other instruments or evidences of indebtedness, in rights and options relating thereto and in real and personal property (collectively, "Securities") and to sell Securities short; -3- (b) Securities. To possess, transfer, mortgage, pledge or otherwise deal in and to exercise a11 rights, powers, privileges and other incidents of ownership or possession with respect to, Securities held or owned by the Partnership with the ultimate objective of the preservation, protection, improvement and enhancement in value thereof; (c) Borrowing. To borrow or raise moneys and, from time to time without limit as to amount, to issue, accept, endorse and execute promissory notes, drafts, bills of exchange, warrants, bonds, debentures and other negotiable or non-negotiable instruments and evidences of indebtedness, and to secure the payment of any thereof and of the interest thereon by mortgage upon, pledge of, or conveyance or assignment in trust of, the whole or any part of the property of the Partnership, whether at the time owned or thereafter acquired, and to sell, pledge, or otherwise dispose of such obligations of the Partnership for its purposes; (d) Affiliates. To borrow moneys and/or securities from, and lend moneys and/or securities to, relatives of Partners, corporations controlled by Partners, trusts of which Partners are settlors, trustees or beneficiaries, and any other person or entity affiliated with any of the Partners (collectively, "Affiliates"), as well as Partners themselves, or to pledge, mortgage or hypothecate securities to secure borrowings or other liabilities of Affiliates to any financial institution, including any bank, and to make investments in or otherwise be involved with respect to entities or ventures in which Partners or Affiliates are involved; provided that it is expressly agreed and understood that the General Partner shall be authorized to sign any documents on behalf of the Partnership for this purpose without obtaining the prior consent of the Limited Partners; (e) Offices. To have and maintain one or more offices within or without the State of Delaware and in connection therewith to rent or acquire -4- office space, engage personnel and do such other acts and things as may be necessary or advisable in connection with the maintenance of such office or offices; (f) Bank Accounts. To open, maintain and close bank accounts, including the power to draw checks or other orders for the payment of moneys; (g) Contracts. To enter into, make and perform all contracts, agreements and other undertakings as may be necessary or advisable or incident to the carrying out of the foregoing objects and purposes; and (h) Other. In general, to do and perform everything that may be necessary or desirable for the conduct of the Partnership's business and to carry out the purposes for which the Partnership is formed. ARTICLE III CAPITAL CONTRIBUTIONS 3.01. Contribution. Each Partner has agreed to contribute cash or Securities having a value equal to the sum set forth opposite his, her or its name on Schedule A hereof to the Partnership. The Partners shall make such additional contributions as may from time to time be agreed upon by unanimous consent of the Partners. With the consent of the General Partner, a Partner may contribute Securities to the capital of the Partnership. 3.02. Interest. The Partnership shall not be required to pay interest on the capital contribution of any Partner. -5- ARTICLE IV CAPITAL ACCOUNTS AND DIVISION OF PROFIT AND LOSS 4.01, Partnership Books; Fiscal Year; Inspection. Proper and complete books of account of the investment activities of the Partnership shall be kept at the principal office of the Partnership. The fiscal year of the Partnership will be the calendar year, provided, that the first taxable year of the Partnership shall begin on the date hereof and end on December 31, 2001. As soon as practicable after the end of each fiscal year, the General Partner shall cause financial statements for such fiscal year to be prepared at the expense of the Partnership. Except as may be otherwise required by law, the right of each Limited Partner to inspect and copy the books of the Partnership shall be limited to the portions of such books which deal with the interest in the Partnership of such Limited Partner. 4.02. Capital Amounts. Cumulative records reflecting the amount of a Partner's capital contributions, distributions, gains, losses, expenses and income ("Capital Accounts") will be maintained for each Partner. 4.03. Allocation of Tax Items. Except as provided in Section 4.04 below, income, gains, losses, deductions and credits of the Partnership (each as determined for Federal income tax purposes) shall, for federal income tax purposes, be allocated to the Partners proportionately in accordance with their respective Capital Account balances. In the event that the Partners' proportionate Capital Accounts vary during a fiscal year, appropriate allocations shall be made by the General Partner. 4.04. Gain or Loss on Contributed Securities. Any gain or loss realized during any fiscal year by the Partnership from the sale of any contributed -6- Securities shall, for federal income tax purposes, be allocated between the contributing Partner and all of the other Partners as follows: (a) Any such gain or loss attributable to the difference between the contributing Partner's adjusted basis for such Securities and the market value thereof at the time of their contribution shall be allocated to such contributing Partner; and (b) Any such gain or loss attributable to the difference between the market value of such Securities at the time of their contribution and the proceeds realized by the Partnerships shall be allocated among all of the Partners (including such contributing Partner) in proportion to their respective Capital Accounts. If operation of the "ceiling rule" set forth in the regulations under Section 704 of the Internal Revenue Code of 1986, as amended (the "Code"), prevents the preceding clause (a) from having its intended effect, appropriate "curative allocations" shall be made by the General Partner. 4.05. Valuation of Securities. For purposes of determining the value of Securities, Securities which are traded on a stock exchange shall be valued at their last sales prices on the date of determination, or, if no sales occurred on such day, at the mean between the "bid" and "asked" price on such day; Securities which are not so listed shall be valued at their last closing bid prices if held "long" by the Partnership and their last closing asked prices on the date of determination if held "short" by the Partnership; Securities which are in the form of put or call options shall be valued at their last sales prices; and Securities which are not readily marketable shall be valued at Fair market value as determined by the General Partner, in his sole discretion. -7- ARTICLE V MANAGEMENT 5.01 Control by General Partner. Except as otherwise limited herein, the general management, control and conduct of the business of the Partnership will be vested solely in the General Partner. The Limited Partners will not take any part in the management of the business or transact any business for the Partnership, and will have no power to sign for or bind the Partnership. 5.02. Liability of General Partner. The General Partner shall not be liable to the Limited Partners for any losses, damages or other injury incurred in the conduct of Partnership activities except those caused by the willful neglect or gross negligence of the General Partner. 5.03. Other Business Interests. The General Partner will devote such time to the activities of the Partnership as he deems necessary for its operation. It is understood, however, that the General Partner has and expects to have other interests to which he intends to devote substantial amounts of time and from which he expects to derive profits; and such other interests are expressly permitted. 5.04. Fees of General Partner. The Partnership shall not pay the General Partner any fee as compensation for his services as General Partner to the Partnership, but shall reimburse him for his out-of-pocket expenses. The Partnership may retain and pay the fees and expenses of counsel, accountants and other experts whether or not Affiliates of the General Partner. 5.05. Tax Matters Partner. The General Partner shall be the Tax Matters Partner as defined in Section 6231 (a)(7) of the Code. -8- ARTICLE VI LEGAL INTERESTS AND DISTRIBUTIONS 6.01. Legal Interests. Each Partner shall have and own an undivided interest in the Partnership equal to his, her or its Capital Account. 6.02. Distributions. The General Partner shall make distributions of cash and properly at such times and in such amounts and shall maintain such reserves as he shall, in his sole discretion, deem to be necessary or desirable. Distributions shall be made to the Partners in proportion to their respective Capital Account balances. ARTICLE VII TRANSFER OF PARTNERSHIP INTEREST 7.01. Prohibited Transfers. No Partner may, without the prior written consent of the General Partner, transfer, sell, assign, pledge or otherwise dispose of, whether voluntarily or by operation of law, at judicial sale or otherwise, all or any portion of its, his or her interest in the Partnership to any person or entity other than to the Partnership or to another Partner. Any transfer of an interest in the Partnership, other than in accordance with this Article, shall be voidable and the Partnership shall not be required to recognize any equitable or other claims to such partnership interest on the part of the purported transferee thereof. Any permitted transferee who is not already a Partner shall become a Partner upon its, his, or her execution and delivery to the Partnership of a copy of this Agreement, whereupon such permitted transferee shall have the benefit, and shall be subject to the obligations, of this Agreement. -9- ARTICLE VIII TERMINATION, DISSOLUTION AND DISTRIBUTION OF PROCEEDS 8.01. Election by General Partner. The Partnership may be terminated by the General Partner as of the end of any fiscal year after fiscal year 2001 upon at least ninety (90) days' prior written notice to each of the Partners. In such event, the Partnership shall be wound up and liquidated. 8.02. Death, Withdrawal, Etc. of Limited Partner. If any Limited Partner dies or becomes incapable of acting as such, the Partnership shall not dissolve, but the legal representative of such Limited Partner in his capacity as such shall become the Limited Partner in lieu of the deceased or incapacitated Limited Partner. A Limited Partner may withdraw from the Partnership only with the prior written consent of the General Partner. 8.03. Death, Withdrawal, Etc. of General Partner. The General Partner may withdraw as such as of the end of any fiscal year upon at least thirty days' prior written notice to each of the Partners. If the General Partner so withdraws, or dies or becomes physically or mentally incapable of performing his duties as the General Partner, or if all the legal interest of the General Partner in the Partnership is sold, transferred, assigned or conveyed (whether voluntarily or by operation of law), the interest of the General Partner shall without further action be converted into an interest as Limited Partner. In the event of the death, withdrawal or physical or mental incapacity or the sale, transfer, assignment and conveyance of all the legal interest in the Partnership of the General Partner, the Partnership shall terminate and shall be wound up and liquidated, unless within ninety (90) days after the date of the death, withdrawal or physical or mental incapacity or the sale, transfer, assignment -10- and conveyance of all the legal interest in the Partnership of the General Partner, all the Limited Partners agree in writing to continue the business of the Partnership and to the appointment of one or more General Partners to the Partnership. 8.04. Liquidation. A liquidation of the Partnership following its termination and dissolution shall be carried out by the General Partner or, if there is no General Partner, the Limited Partners may choose a liquidator. Such liquidation may be completed either by selling the Partnership assets and distributing the proceeds of such sale or by distributing the Partnership assets to the Partners in kind as the person carrying out the liquidation shall determine. Upon a distribution in kind each Partner shall receive an interest in the Partnership assets subject to any unsatisfied Partnership liabilities. 8.05. Payments Prior to Liquidating Distribution. Before any liquidating distribution is made to the Partners, all Partnership debts and obligations (to persons other than the Partners) shall be paid or provided for and reasonable reserves shall be established for contingent liabilities in amounts determined by the General Partner. Any obligations of the Partnership to Partners shall then be paid. Thereafter the remaining Partnership assets shall be distributed to the Partners in proportion to their Capital Account balances. -11- ARTICLE IX GENERAL PROVISIONS 9.01. Election Under Section 754. Promptly upon receipt of notice from a Partner or legal representative of a deceased Partner requesting the Partnership to make an election under Section 754 of the Code (or any successor section) or requesting revocation of such an election, the General Partner shall give notice thereof to all other Partners, and, after considering any comments from the other Partners, may in his discretion make an election or attempt to revoke any election then in effect pursuant to such Section 754. 9.02. Notices. All notices hereunder shall be in writing. Notices to a Partner shall be directed to him, her or it at the address stated in Schedule A hereto. Notices to the Partnership shall be directed to the attention of the General Partner. Any Partner, by notice to the Partnership, may designate a new address to which notices to him, her or it may be sent and the Partnership will advise all of the Partners of such new address; similarly the Partnership may designate a new address for notices to it, by written notice to all the Partners. Unless otherwise specified herein, all notices shall be effective either when delivered to the proper address or when sent by registered or certified mail to such address. 9.03. Indemnification. Notwithstanding the provisions of Section 1.09 hereof, the Partnership shall indemnify and save harmless the General Partner from any personal loss, damage or liability incurred by him by reason of any act performed by him or and on behalf of the Partnership except losses, damages and liabilities incurred arising from the willful neglect or gross negligence of such General Partner. 9.04. Securities Law Restrictions. Each Partner by executing and delivering this Agreement represents, warrants and covenants to the other Partners -12- and the Partnership that his, her or its Partnership interest is being acquired solely for his, her or its own account for investment and not with a view to any public sale or other disposition thereof, and not for or on behalf of any other person or entity and that such Partnership interest will not be sold without registration under the Securities Act of 1933 or exemption therefrom. 9.05. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by the General Partner and his determination shall be final, binding and conclusive. If and to the extent that the foregoing provision shall be invalid or ineffective, any such controversy or claim arising out of or relating to this Agreement or the breach thereof shall be submitted to arbitration before a single arbitrator in Delaware in accordance with the then prevailing Rules of Commercial Arbitration of the American Arbitration Association and judgment upon any arbitration award may be entered in any court having jurisdiction thereof. 9.06. Further Assurances. Each Partner will do all acts and execute all additional documents necessary or desirable to carry out the provisions of this Agreement. 9.07. Binding Effect. The rights and liabilities of the parties shall bind and inure to the benefit of their respective heirs, administrators, executors, successors and assigns. 9.08. Survival. All the terms and conditions of this Agreement shall survive the filing of the Limited Partnership Certificate and any other certificates to be filed hereunder. 9.09. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings of the -13- parties in connection therewith. No Partner or agent of the Partnership is authorized to make any representation, warranty or promise not contained herein. No change, termination or attempted waiver of any of the provisions hereof shall be binding on the Partnership unless in writing and signed by the General Partner and a majority-in-interest of the Limited Partners (unless a higher percentage is required by this Agreement or applicable law). No Partner or agent of the Partnership is authorized to agree to any change, termination or waiver of any of the provisions hereof in any other way. No modification, waiver, termination, rescission, discharge or cancellation of this Agreement shall affect the right of the Partnership to enforce any claim, whether or not liquidated, which accrued prior to the date of such modification, waiver, termination, rescission, discharge or cancellation of this Agreement, and no waiver of any provision of or default under this Agreement shall affect the right of the Partnership or Partners thereafter to enforce said provision or to exercise any right or remedy in the event of any other default, whether or not similar. 9.10. Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or enforceability without rendering invalid or unenforceable the remaining terns and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. 9.11. Grammatical Construction. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice versa. -14- 9.12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. 9.13. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be one and the same instrument. 9.14. Liability. Each Trustee executes this Agreement only as Trustee and shall be bound hereby only in his or her capacity as Trustee and not individually. The Partnership shall look solely to the assets of the trust that is a Partner for satisfaction of any liability of the Trustee of such trust in respect hereof and will not seek recourse against such Trustee individually or against any of his or her individual assets. IN WITNESS WHEREOF, the parties have executed this agreement as of the date first set forth above. GENERAL PARTNER: /s/ Barry Silverstein ---------------------------- Barry Silverstein LIMITED PARTNERS: /s/ Barry Silverstein ---------------------------- Barry Silverstein /s/ Trudy Silverstein ---------------------------- Trudy Silverstein -15- STATE OF FLORIDA ) :ss.: COUNTY OF SARASOTA ) On this 23rd day of May, 2001, before me personally appeared BARRY SILVERSTEIN, to me known and known to me to be the individual described in and who executed the foregoing instrument, and he duly acknowledged to me that he executed the same. /s/ Marjory Schiavo ---------------------------- Notary Public [NOTARY SEAL OF MARJORY SCHIAVO] STATE OF FLORIDA ) :ss.: COUNTY OF SARASOTA ) On this 23rd day of May, 2001, before me personally appeared TRUDY SILVERSTEIN, to me known and known to me to be the individual described in and who executed the foregoing instrument, and he duly acknowledged to me that he executed the same. /s/ Marjory Schiavo ---------------------------- Notary Public [NOTARY SEAL OF MARJORY SCHIAVO] EX-6 6 ex-6.txt Exhibit 6 AGREEMENT OF LIMITED PARTNERSHIP OF MSTB FAMILY LIMITED PARTNERSHIP AGREEMENT OF LIMITED PARTNERSHIP made as of the 23rd day of May, 2001, among BARRY SILVERSTEIN, as general partner (the "General Partner"), and BARRY SILVERSTEIN and TRUDY SILVERSTEIN, as limited partners (individually, a "Limited Partner" and collectively, the "Limited Partners"). WHEREAS, the parties hereto wish to enter into a limited partnership (the "Partnership") with each other in accordance with the terms hereof to carry on certain investment activities; NOW, THEREFORE, in consideration of the mutual agreements contained herein, the parties agree as follows: ARTICLE I GENERAL PROVISIONS 1.01. Commencement. The Partnership shall, upon the terms and subject to the conditions set forth herein, commence its existence subject to the provisions of the Delaware Revised Uniform Limited Partnership Act (the "Act") as of the date hereof. 1.02. Duration. The Partnership will continue until December 31, 2033, unless earlier dissolved and terminated as herein provided. 1.03. Names, Status and Residences of Partners. The names, status and places of residence of the General Partner and of the Limited Partners (individually, a "Partner," and collectively, the "Partners") are set forth in Schedule A attached hereto. 1.04. Filing and Publication of Certificate. The General Partner has executed, acknowledged and filed or shall execute, acknowledge and file with the office of the Secretary of State of the State of Delaware the requisite certificates to comply with the provisions of the Act. 1.05. Power of Attorney. The Limited Partners hereby constitute and appoint the General Partner their true and lawful attorney to make, sign, execute, certify, acknowledge and file on behalf of the Limited Partners (i) any certificates of amendment or certificate of dissolution required under the Act and to include therein all information required by law and (ii) any documents, agreements and instruments necessary or related to the business and operation of the Partnership. 1.06. Purposes of Partnership. The purposes of the Partnership are to purchase or otherwise acquire, hold for investment or sell or otherwise dispose of or realize upon, and generally deal in all forms of securities including limited partnership interests, stocks and bonds, real property and interests in real property, and interests or participations in other property or assets of any kind or description created or issued by any person, firm, partnership, syndicate or other entity, to exercise as owner or holder of the foregoing all rights, powers and privileges in respect thereof and to do all acts and things necessary or appropriate for the preservation, protection, improvement and enhancement in value of the foregoing. Without limiting the generality of the foregoing, the Partnership may carry out its business and accomplish its purposes as principal, whether by or through trustees or agents, alone or with associates, or as a member of or as a participant in any firm, association, trust, syndicate or other entity. The exercise of any powers pursuant to Article II hereof shall be deemed consistent with the purposes of the Partnership. 1.07. Name of Partnership. The name of the Partnership will be MSTB Family Limited Partnership, or such other name as the General Partner shall choose at any time. -2- 1.08. Principal Office. The principal place of business of the Partnership, and such additional places of business of the Partnership as the General Partner may from time to time desire to establish, shall be located at such place or places inside or outside of the State of Delaware as the General Partner may determine from time to time. 1.09. Liability of General Partner. The General Partner shall be liable for the repayment, satisfaction and discharge of all debts, liabilities and obligations of the Partnership. 1.10. Liability of Limited Partners. Subject to the provisions of the Act, no Limited Partner shall be liable for the repayment, satisfaction and discharge of all debts, liabilities and obligations of the Partnership in excess of the balance of his, her or its respective Capital Account (as defined in Section 4.02 hereof). 1.11. Additional Limited Partners. The General Partner may admit additional Limited Partners to the Partnership without the consent of any Limited Partner. Admission of any partner hereunder shall not be a cause of dissolution of the Partnership. ARTICLE II POWERS 2.01. The Partnership shall have the following powers: (a) Investments. To invest and trade, on margin or otherwise, in capital stock, bonds, notes, debentures, interests in limited partnerships, mortgages including senior and junior mortgages and other instruments or evidences of indebtedness, in rights and options relating thereto and in real and personal property (collectively, "Securities") and to sell Securities short; -3- (b) Securities. To possess, transfer, mortgage, pledge or otherwise deal in, and to exercise all rights, powers, privileges and other incidents of ownership or possession with respect to, Securities held or owned by the Partnership with the ultimate objective of the preservation, protection, improvement and enhancement in value thereof; (c) Borrowing. To borrow or raise moneys and, from time to time without limit as to amount, to issue, accept, endorse and execute promissory notes, drafts, bills of exchange, warrants, bonds, debentures and other negotiable or non-negotiable instruments and evidences of indebtedness, and to secure the payment of any thereof and of the interest thereon by mortgage upon, pledge of, or conveyance or assignment in trust of, the whole or any part of the property of the Partnership, whether at the time owned or thereafter acquired, and to sell, pledge, or otherwise dispose of such obligations of the Partnership for its purposes; (d) Affiliates. To borrow moneys and/or securities from, and lend moneys and or securities to, relatives of Partners, corporations controlled by Partners, trusts of which Partners are settlors, trustees or beneficiaries, and any other person or entity affiliated with any of the Partners (collectively, "Affiliates"), as well as Partners themselves, or to pledge, mortgage or hypothecate securities to secure borrowings or other liabilities of Affiliates to any financial institution, including any bank, and to make investments in or otherwise be involved with respect to entities or ventures in which Partners or Affiliates are involved; provided that it is expressly agreed and understood that the General Partner shall be authorized to sign any documents on behalf of the Partnership for this purpose without obtaining the prior consent of the Limited Partners; (e) Offices. To have and maintain one or more offices within or without the State of Delaware and in connection therewith to rent or acquire -4- office space, engage personnel and do such other acts and things as may be necessary or advisable in connection with the maintenance of such office or offices; (f) Bank Accounts. To open, maintain and close bank accounts, including the power to draw checks or other orders for the payment of moneys; (g) Contracts, To enter into, make and perform all contracts, agreements and other undertakings as may be necessary or advisable or incident to the carrying out of the foregoing objects and purposes; and (h) Other. In general, to do and perform everything that may be necessary or desirable for the conduct of the Partnership's business and to carry out the purposes for which the Partnership is formed. ARTICLE III CAPITAL CONTRIBUTIONS 3.01. Contribution. Each Partner has agreed to contribute cash or Securities having a value equal to the sum set forth opposite his, her or its name on Schedule A hereof to the Partnership. The Partners shall make such additional contributions as may from time to time be agreed upon by unanimous consent of the Partners. With the consent of the General Partner, a Partner may contribute Securities to the capital of the Partnership. 3.02. Interest The Partnership shall not be required to pay interest on the capital contribution of any Partner. -5- ARTICLE IV CAPITAL ACCOUNTS AND DIVISION OF PROFIT AND LOSS 4.01. Partnership Books; Fiscal Year; Inspection. Proper and complete books of account of the investment activities of the Partnership shall be kept at the principal office of the Partnership. The fiscal year of the Partnership will be the calendar year, provided, that the first taxable year of the Partnership shall begin on the date hereof and end on December 31, 2001. As soon as practicable after the end of each fiscal year, the General Partner shall cause financial statements for such fiscal year to be prepared at the expense of the Partnership. Except as may be otherwise required by law, the right of each Limited Partner to inspect and copy the books of the Partnership shall be limited to the portions of such books which deal with the interest in the Partnership of such Limited Partner. 4.02. Capital Accounts. Cumulative records reflecting the amount of a Partner's capital contributions, distributions, gains, losses, expenses and income ("Capital Accounts") will be maintained for each Partner. 4.03. Allocation of Tax Items. Except as provided in Section 4.04 below, income, gains, losses, deductions and credits of the Partnership (each as determined for Federal income tax purposes) shall, for federal income tax purposes, be allocated to the Partners proportionately in accordance with their respective Capital Account balances. In the event that the Partners' proportionate Capital Accounts vary during a fiscal year, appropriate allocations shall be made by the General Partner. 4.04. Gain or Loss on Contributed Securities. Any gain or loss realized during any fiscal year by the Partnership from the sale of any contributed -6- Securities shall, for federal income tax purposes, be allocated between the contributing Partner and all of the other Partners as follows: (a) Any such gain or loss attributable to the difference between the contributing Partner's adjusted basis for such Securities and the market value thereof at the time of their contribution shall be allocated to such contributing Partner; and (b) Any such gain or loss attributable to the difference between the market value of such Securities at the time of their contribution and the proceeds realized by the Partnerships shall be allocated among all of the Partners (including such contributing Partner) in proportion to their respective Capital Accounts. If operation of the "ceiling rule" set forth in the regulations under Section 704 of the Internal Revenue Code of 1986, as amended (the "Code"), prevents the preceding clause (a) from having its intended effect, appropriate "curative allocations" shall be made by the General Partner. 4.05. Valuation of Securities. For purposes of determining the value of Securities, Securities which are traded on a stock exchange shall be valued at their last sales prices on the date of determination, or, if no sales occurred on such day, at the mean between the "bid" and "asked" price on such day; Securities which are not so listed shall be valued at their last closing bid prices if held "long" by the Partnership and their last closing asked prices on the date of determination if held "short" by the Partnership; Securities which are in the form of put or call options shall be valued at their last sales prices; and Securities which are not readily marketable shall be valued at fair market value as determined by the General Partner, in his sole discretion. -7- ARTICLE V MANAGEMENT 5.01. Control by General Partner. Except as otherwise limited herein, the general management, control and conduct of the business of the Partnership will be vested solely in the General Partner. The Limited Partners will not take any part in the management of the business or transact any business for the Partnership, and will have no power to sign for or bind the Partnership. 5.02. Liability of General Partner. The General Partner shall not be liable to the Limited Partners for any losses, damages or other injury incurred in the conduct of partnership activities except those caused by the willful neglect or gross negligence of the General Partner. 5.03. Other Business Interests. The General Partner will devote such time to the activities of the Partnership as he deems necessary for its operation. It is understood, however, that the General Partner has and expects to have other interests to which he intends to devote substantial amounts of time and from which he expects to derive profits; and such other interests are expressly permitted. 5.04. Fees of General Partner. The Partnership shall not pay the General Partner any fee as compensation for his services as General Partner to the Partnership, but shall reimburse him for his out-of-pocket expenses. The Partnership may retain and pay the fees and expenses of counsel, accountants and other experts whether or not Affiliates of the General Partner. 5.05. Tax Matters Partner. The General Partner shall be the Tax Matters Partner as defined in Section 6231 (a)(7) of the Code. -8- ARTICLE VI LEGAL INTERESTS AND DISTRTBUTIONS 6.01. Legal Interests. Each Partner shall have and own an undivided interest in the Partnership equal to his, her or its Capital Account. 6.02. Distributions. The General Partner shall make distributions of cash and property at such times and in such amounts and shall maintain such reserves as he shall, in his sole discretion, deem to be necessary or desirable. Distributions shall be made to the Partners in proportion to their respective Capital Account balances. ARTICLE VII TRANSFER OF PARTNERSHIP INTEREST 7.01. Prohibited Transfers. No Partner may, without the prior written consent of the General Partner, transfer, sell, assign, pledge or otherwise dispose of, whether voluntarily or by operation of law, at judicial sale or otherwise, all or any portion of its, his or her interest in the Partnership to any person or entity other than to the Partnership or to another Partner. Any transfer of an interest in the Partnership, other than in accordance with this Article, shall be voidable and the Partnership shall not be required to recognize any equitable or other claims to such partnership interest on the part of the purported transferee thereof. Any permitted transferee who is not already a Partner shall become a Partner upon its, his, or her execution and delivery to the Partnership of a copy of this Agreement, whereupon such permitted transferee shall have the benefit, and shall be subject to the obligations, of this Agreement. -9- ARTICLE VIII TERMINATION, DISSOLUTION AND DISTRIBUTION OF PROCEEDS 8.01. Election by General Partner, The Partnership may be terminated by the General Partner as of the end of any fiscal year after fiscal year 2001 upon at least ninety (90) days' prior written notice to each of the Partners. In such event, the Partnership shall be wound up and liquidated. 8.02. Death, Withdrawal, Etc. of Limited Partner. If any Limited Partner dies or becomes incapable of acting as such, the Partnership shall not dissolve, but the legal representative of such Limited Partner in his capacity as such shall become the Limited Partner in lieu of the deceased or incapacitated Limited Partner. A Limited Partner may withdraw from the Partnership only with the prior written consent of the General Partner. 8.03. Death, Withdrawal, Etc. of General Partner. The General Partner may withdraw as such as of the end of any fiscal year upon at least thirty days' prior written notice to each of the Partners. If the General Partner so withdraws, or dies or becomes physically or mentally incapable of performing his duties as the General Partner, or if all the legal interest of the General Partner in the Partnership is sold, transferred, assigned or conveyed (whether voluntarily or by operation of law), the interest of the General Partner shall without further action be converted into an interest as Limited Partner. In the event of the death, withdrawal or physical or mental incapacity or the sale, transfer, assignment and conveyance of all the legal interest in the Partnership of the General Partner, the Partnership shall terminate and shall be wound up and liquidated, unless within ninety (90) days after the date of the death, withdrawal or physical or mental incapacity or the sale, transfer, assignment -10- and conveyance of all the legal interest in the Partnership of the General Partner, all the Limited Partners agree in writing to continue the business of the Partnership and to the appointment of one or more General Partners to the Partnership. 8.04. Liquidation. A liquidation of the Partnership following its termination and dissolution shall be carried out by the General Partner or, if there is no General Partner, the Limited Partners may choose a liquidator. Such liquidation may be completed either by selling the Partnership assets and distributing the proceeds of such sale or by distributing the Partnership assets to the Partners in kind as the person carrying out the liquidation shall determine. Upon a distribution in kind each Partner shall receive an interest in the Partnership assets subject to any unsatisfied Partnership liabilities. 8.05. Payments Prior to Liquidating Distribution. Before any liquidating distribution is made to the Partners, all Partnership debts and obligations (to persons other than the Partners) shall be paid or provided for and reasonable reserves shall be established for contingent liabilities in amounts determined by the General Partner. Any obligations of the Partnership to Partners shall then be paid. Thereafter the remaining Partnership assets shall be distributed to the Partners in proportion to their Capital Account balances. -11- ARTICLE IX GENERAL PROVISIONS 9.01. Election Under Section 754. Promptly upon receipt of notice from a Partner or legal representative of a deceased Partner requesting the Partnership to make an election under Section 754 of the Code (or any successor section) or requesting revocation of such an election, the General Partner shall give notice thereof to all other Partners, and, after considering any comments from the other Partners, may in his discretion make an election or attempt to revoke any election then in effect pursuant to such Section 754. 9.02. Notices. All notices hereunder shall be in writing. Notices to a Partner shall be directed to him, her or it at the address stated in Schedule A hereto. Notices to the Partnership shall be directed to the attention of the General Partner. Any Partner, by notice to the Partnership, may designate a new address to which notices to him, her or it may be sent and the Partnership will advise all of the Partners of such new address; similarly the Partnership may designate a new address for notices to it, by written notice to all the Partners. Unless otherwise specified herein, all notices shall be effective either when delivered to the proper address or when sent by registered or certified mail to such address. 9.03. Indemnification. Notwithstanding the provisions of Section 1.09 hereof, the Partnership shall indemnify and save harmless the General Partner from any personal loss, damage or liability incurred by him by reason of any act performed by him or and on behalf of the Partnership except losses, damages and liabilities incurred arising from the willful neglect or gross negligence of such General Partner. 9.04. Securities Law Restrictions. Each Partner by executing and delivering this Agreement represents, warrants and covenants to the other Partners -12- and the Partnership that his, her or its Partnership interest is being acquired solely for his, her or its own account for investment and not with a view to any public sale or other disposition thereof, and not for or on behalf of any other person or entity and that such Partnership interest will not be sold without registration under the Securities Act of 1933 of exemption therefrom. 9.05. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by the General Partner and his determination shall be final, binding and conclusive. If and to the extent that the foregoing provision shall be invalid or ineffective, any such controversy or claim arising out of or relating to this Agreement or the breach thereof shall be submitted to arbitration before a single arbitrator in Delaware in accordance with the then prevailing Rules of Commercial Arbitration of the American Arbitration Association and judgment upon any arbitration award may be entered in any court having jurisdiction thereof. 9.06. Further Assurances. Each Partner will do all acts and execute all additional documents necessary or desirable to carry out the provisions of this Agreement. 9.07. Binding Effect. The rights and liabilities of the parties shall bind and inure to the benefit of their respective heirs, administrators, executors, successors and assigns. 9.08. Survival. All the terms and conditions of this Agreement shall survive the filing of the Limited Partnership Certificate and any other certificates to be filed hereunder. 9.09. Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreement and understandings of the -13- parties in connection therewith, No Partner or agent of the Partnership is authorized to make any representation, warranty or promise not contained herein. No change, termination or attempted waiver of any of the provisions hereof shall be binding on the Partnership unless in writing and signed by the General Partner and a majority-in-interest of the Limited Partners (unless a higher percentage is required by this Agreement or applicable law). No Partner or agent of the Partnership is authorized to agree to any change, termination or waiver of any of the provisions hereof in any other way. No modification, waiver, termination, rescission, discharge or cancellation of this Agreement shall affect the right of the Partnership to enforce any claim, whether or not liquidated, which accrued prior to the date of such modification, waiver, termination, rescission, discharge or cancellation of this Agreement, and no waiver of any provision. of or default under this Agreement shall affect the right of the Partnership or Partners thereafter to enforce said provision or to exercise any right or remedy in the event of any other default, whether or not similar. 9.10. Severability. Any term or provision of this Agreement which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or enforceability without rendering invalid or unenforceable the remaining terms and provisions of this Agreement or affecting the validity or enforceability of any of the terms or provisions of this Agreement in any other jurisdiction. 9.11. Grammatical Construction. Whenever the context may require, any pronouns used herein shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns shall include the plural and vice versa. -14- 9.12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of law thereof. 9.13. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed to be an original and all of which shall be deemed to be one and the same instrument. 9.14. Liability. Each Trustee executes this Agreement only as Trustee and shall be bound hereby only in his or her capacity as Trustee and not individually. The Partnership shall look solely to the assets of the trust that is a Partner for satisfaction of any liability of the Trustee of such trust in respect hereof and will not seek recourse against such Trustee individually or against any of his or her individual assets. IN WITNESS WHEREOF, the parties have executed this agreement as of the date first set forth above. GENERAL PARTNER: /s/ Barry Silverstein --------------------- Barry Silverstein LIMITED PARTNERS: /s/ Barry Silverstein --------------------- Barry Silverstein /s/ Trudy Silverstein --------------------- Barry Silverstein -15- STATE OF FLORIDA ) :ss.: COUNTY OF SARASOTA ) On this 23rd day of May, 2001, before me personally appeared BARRY SILVERSTEIN, to me known and known to me to be the individual described in and who executed the foregoing instrument, and he duly acknowledged to me that he executed the same. /s/ Marjory Schiavo ---------------------------- Notary Public [NOTARY SEAL OF MARJORY SCHIAVO] STATE OF FLORIDA ) :ss.: COUNTY OF SARASOTA ) On this 23rd day of May, 2001, before me personally appeared TRUDY SILVERSTEIN, to me known and known to me to be the individual described in and who executed the foregoing instrument, and she duly acknowledged to me that she executed the same. /s/ Marjory Schiavo ---------------------------- Notary Public [NOTARY SEAL OF MARJORY SCHIAVO] EX-7 7 ex-7.txt Exhibit 7 LIMITED PARTNERSHIP AGREEMENT OF SILVERSTEIN FAMILY LIMITED PARTNERSHIP 2002, LTD. TABLE OF CONTENTS Page ---- STATEMENT OF AGREEMENT ..................................................... 1 ARTICLE 1 FORMATION, NAME OF PARTNERSHIP, PURPOSE OF THE LIMITED PARTNERSHIP AND REGISTERED AGENT FOR SERVICE OF PROCESS ............. 1 1.1 Formation and Name of the Partnership ......................... 1 1.2 Purpose of the Limited Partnership ............................ 1 1.3 Purpose of Partnership Restrictions ........................... 2 1.4 Registered Agent for Service of Process ....................... 2 1.5 Ratification of Prior Acts .................................... 2 ARTICLE 2 PRINCIPAL OFFICE .................................................... 3 ARTICLE 3 TERM OF LIMITED PARTNERSHIP ......................................... 3 ARTICLE 4 DESIGNATION OF PARTNERS ............................................. 3 ARTICLE 5 DEFINITIONS ......................................................... 3 ARTICLE 6 PERCENTAGE INTEREST IN THE PARTNERSHIP .............................. 5 ARTICLE 7 CAPITAL ............................................................. 5 7.1 Capital Contributions ......................................... 5 7.2 Additional Capital Contributions .............................. 5 7.3 Capital Accounts .............................................. 6 7.4 Interest on and Return of Capital ............................. 6 7.5 Loans to the Partnership ...................................... 6 7.6 Allocation with Respect to Property ........................... 7 7.7 Receipt of Life Insurance Proceeds ............................ 7 ARTICLE 8 ALLOCATION OF PROFITS, LOSSES AND TAX ITEMS ......................... 7 ARTICLE 9 DISTRIBUTIONS TO PARTNERS ........................................... 7 9.1 Distributions of Cash ......................................... 7 9.2 Distributions in Kind ......................................... 7 9.3 No Entitlement to Distributions ............................... 8 9.4 Interest of General Partner ................................... 8 9.5 Allocation after Assignments .................................. 8 ARTICLE 10 LIMITED LIABILITY OF LIMITED PARTNERS ............................... 8 10.1 Partnership Losses and Debts .................................. 8 10.2 Negative Capital Accounts ..................................... 8 ARTICLE 11 MANAGEMENT OF PARTNERSHIP ........................................... 8 11.1 Powers and Duties of the General Partners ..................... 8 11.2 Limitations on Authority of General Partners .................. 9 11.3 Compensation for Services ..................................... 10 11.4 Limited Partners .............................................. 10 11.5 Liability of the General Partners ............................. 10 11.6 Indemnity ..................................................... 10 11.7 Independent Investments ....................................... 10 11.8 Action by Partners ............................................ 10 11.9 Action by Partners Without a Meeting .......................... 11 11.10 Participation at Meetings by Means of Communications Equipment ...................................... 11 ARTICLE 12 POWER OF ATTORNEY ................................................... 11 12.1 Grant of Power ................................................ 11 12.2 Survival of Power of Attorney; Assignees ...................... 11 12.3 Generally ..................................................... 12 ARTICLE 13 BANKING ............................................................. 12 ARTICLE 14 ACCOUNTING .......................................................... 12 14.1 Fiscal Year ................................................... 12 14.2 Method of Accounting .......................................... 12 14.3 Financial and Operating Statements and Tax Returns ............ 12 14.4 Location of and Access to Partnership Records ................. 13 14.5 Tax Elections ................................................. 13 14.6 Tax Matters Partner ........................................... 13 ARTICLE 15 ADMISSION OF ADDITIONAL LIMITED PARTNERS ............................ 13 15.1 Admission by Consent of Partners .............................. 13 15.2 Capital Contributions and Fair Market Value ................... 13 15.3 Limitations ................................................... 14 15.4 Admissions in Violation of this Article ....................... 14 ARTICLE 16 TRANSFER OF PARTNERSHIP INTERESTS AND ADMISSION OF SUBSTITUTE LIMITED PARTNERS ...................................... 14 16.1 Transfer of Partnership Interest .............................. 14 16.2 Transfers of Partnership Interests to Certain Transferees ..... 14 16.3 Transfers from Custodianships ................................. 14 16.4 Transfer of Interest by General Partners ...................... 14 16.5 Admission of Substitute Limited Partners ...................... 15 16.6 Rights of a Transferee ........................................ 15 ii 16.7 Designation of Successor in Interest .......................... 15 16.8 Effect of Transfers and Admissions in Violation of this Article .................................................. 15 ARTICLE 17 TRANSFER OF GENERAL PARTNERSHIP INTEREST AND ADMISSION OF SUBSTITUTE GENERAL PARTNER ......................... 16 17.1 Transfer of a General Partner's Interest ...................... 16 17.2 Admission of a General Partner ................................ 16 17.3 Effect of Transfers and Admissions in Violation of this Article .................................................. 16 ARTICLE 18 WITHDRAWALS ......................................................... 16 ARTICLE 19 CONVERSION OR PURCHASE OF CERTAIN PARTNER'S INTERESTS ............... 17 19.1 Conversion of General Partner's Interest ...................... 17 19.2 Purchase of Defaulting Partner's Interest ..................... 17 19.3 Succession of Personal Representative ......................... 18 19.4 Option to Purchase Disabled Limited Partner's Interest ........ 19 19.5 Withdrawal Event .............................................. 19 ART1CLE 20 DISSOLUTION, LIQUIDATION AND TERMINATION OF PARTNERSHIP ............. 19 20.1 Dissolving Events ............................................. 19 20.2 Method of Liquidation ......................................... 20 20.3 Reasonable Time for Liquidation ............................... 20 20.4 Date of Dissolution ........................................... 20 20.5 Cancellation of Certificate ................................... 20 ARTICLE 21 AMENDMENT OF PARTNERSHIP AGREEMENT .................................. 21 21.1 Amendments Requiring Consent .................................. 21 21.2 Amendments Not Requiring Consent .............................. 21 21.3 Prohibited Amendments ......................................... 21 ARTICLE 22 GENERAL PROVISIONS .................................................. 21 22.1 Entire Agreement .............................................. 21 22.2 Waiver of Right of Partition .................................. 21 22.3 Notices ....................................................... 21 22.4 Attorneys' Fees ............................................... 22 22.5 Modifications ................................................. 22 22.6 Binding Effect ................................................ 22 22.7 Counterparts .................................................. 22 22.8 Governing Law ................................................. 22 22.9 Gender ........................................................ 22 22.10 Separability of Provisions .................................... 22 22.11 Arbitration ................................................... 22 22.12 Cumulative Remedies ........................................... 23 22.13 Successor as General Partner .................................. 23 22.14 Construction .................................................. 23 22.15 Further Assurances ............................................ 23 iii 22.16 Headings ...................................................... 23 iv SILVERSTEIN FAMILY LIMITED PARTNERSHIP 2002, LTD. PARTNERSHIP AGREEMENT THIS SILVERSTEIN FAMILY LIMITED PARTNERSHIP 2002, LTD. PARTNERSHIP AGREEMENT ("Agreement") made as of May 17, 2002, by and among each person who executes the signature page of this Agreement as a General Partner and each person who executes the signature page of this Agreement as a Limited Partner. STATEMENT OF AGREEMENT The General Partner and the Limited Partner do hereby form a limited partnership, pursuant to and in accordance with the provisions of the Florida Revised Uniform Limited Partnership Act, F.S. 620.101 - 620.205. Upon filing of the Certificate with the State of Florida, the General Partner shall file a Statement of Qualification with the State of Florida to cause this Partnership to become a registered limited liability limited partnership pursuant to Sections 620.8306, 620.9001, 620.9002 and 620.9003, of the Florida Revised Uniform Partnership Act of 1995, as amended ("FRUPA"). For their mutual conveniences and protection and in consideration of the mutual covenants and benefits herein contained, the Partners do hereby agree as follows: ARTICLE 1 FORMATION, NAME OF PARTNERSHIP, PURPOSE OF THE LIMITED PARTNERSHIP AND REGISTERED AGENT FOR SERVICE OF PROCESS 1.1 Formation and Name of the Partnership. The General Partner and the Limited Partner hereby form and establish the Partnership pursuant to the Act. The General Partner shall file with the Department of State for the State of Florida a certificate of limited partnership as required by the Act and all such other certificates and documents as may be necessary or desirable to comply with the requirements for the formation and operation of a limited partnership under the Act and the laws of the State of Florida or in any other jurisdiction when and where applicable. Unless otherwise expressly provided in this Agreement, the rights and liabilities of the parties shall be as provided in the Act. To the extent the provisions of this Agreement conflict with any provisions of the Act, the provisions of this Agreement shall control, to the extent required thereby, and the conflicting provisions of the Act shall be deemed waived to the maximum extent permitted by the Act. The business of the Partnership may, however, be conducted under any other name selected by the General Partner and otherwise permissible to use under applicable law with notice to the other Partners. The Partners shall file a Statement of Qualification as soon as possible following the execution of this Agreement, in accordance with the provisions of the FRUPA. 1.2 Purpose of the Limited Partnership. This Partnership is organized to accomplish the following purposes: (a) to provide consolidated management of the Property held by the Partnership; (b) to manage and/or develop real estate, tangible and intangible personal property, or both, stock, bonds and other securities, either public or private, owned or acquired by the Partnership; (c) to provide an orderly buy-sell arrangement among the Partners in order to keep Partnership Property in the family and to provide continuity of family ownership through transfer restrictions; (d) to promote family harmony by insuring that any disputes will be resolved privately by arbitration rather than publicly through the courts in order to avoid the expense and problems of litigation; (e) to assist in preventing family assets from going through probate upon the death of any family member; or alternatively, to simplify any probate proceeding which may be required; (f) to establish and maintain an order of succession and control of family assets; (g) to consolidate fractional interests in family-held assets; (h) to increase family wealth; (i) to establish a method by which annual gifts can be made without fractionalizing family assets; (j) to restrict the right of non-family members to acquire interests in family assets; (k) to prevent the transfer of a family member's interest in the Partnership as a result of a failed marriage; (l) to provide protection to family assets from claims of future creditors of Partners; (m) to provide flexibility in business planning not available through trusts, corporations or other business entities; (n) to promote knowledge of and communication about family assets, control of assets and business among family members; and (o) to educate family members with respect to investment strategy. In order to accomplish its purposes, the Partnership may conduct any lawful business and investment activity permitted under the laws of the State of Florida and in any other jurisdiction in which it may have a business or investment interest. The Partnership may own, acquire, manage, develop, operate, sell, exchange, finance, refinance and otherwise deal with real estate, personal property and any type of business as the General Partner may from time to time deem to be in the best interest of the Partnership. The Partnership may engage in any other activities which are related or incidental to the foregoing purposes. The Partners acknowledge that the assets of the Partnership (i) are vital to the success of the Partnership; (ii) are necessary for the Partnership to produce income and profit for the benefit of all Partners; and (iii) may not be used to satisfy, the individual debts of any Partner as provided under the Act. 1.3 Purpose of Partnership Restrictions. This Partnership is formed by those who know and trust one another, and who in forming this Limited Partnership will have surrendered certain management rights. One or more of the Partners may also have assumed management responsibility and risk based upon their relationship and trust. Capital is material to the business and investment objectives of the Partnership and its federal tax status. An unauthorized transfer of a Partner's Interest could create a substantial hardship to the Partnership, jeopardize its capital base and adversely affect its tax structure. There are, therefore, certain restrictions, as expressed in this Agreement, which attach to and affect both ownership of Partnership Interests and the restriction is not intended as a penalty, but as a method to protect and preserve existing relationship based upon trust and to protect the Partnership's capital and its financial ability to continue to operate. 1.4 Registered Agent for Service of Process. The name and address of the registered agent for service of process on the Partnership is Bruce P. Chapnick, Esq., Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., 2033 Main Street, Suite 600, Sarasota, FL 34237. 1.5 Ratification of Prior Acts. Each Partner hereby ratifies and accepts all prior acts by the other Partners in connection with the formation and activities of the Partnership except such acts as may constitute fraud or misrepresentation not now known by the non-defrauding Partner. 2 ARTICLE 2 PRINCIPAL OFFICE The principal office of the Partnership shall be 5111 Ocean Boulevard, Suite C, Sarasota, FL 34242. The Partnership may change the location of the principal office or have additional offices as the General Partner deems advisable. At this office will be located the Partnership records required to be kept by ss. 620.106, Florida Statutes. ARTICLE 3 TERM OF LIMITED PARTNERSHIP The term of the Partnership shall commence on the date of this Agreement and shall continue in existence until December 31, 2035, until dissolved and terminated upon the happening of any of the events specified in Article 20 hereof. ARTICLE 4 DESIGNATION OF PARTNERS The names, places of residence, the percentage of ownership and share of the profits or other compensation by way of income which each Partner shall receive, are set forth in Exhibit "A" attached hereto and made a part hereof. ARTICLE 5 DEFINITIONS For purposes of this Agreement, each of the following terms shall have the meaning hereinafter provided, unless the context requires otherwise: "Act" means the Florida Revised Uniform Limited Partnership Act (1986), as amended. "Additional Partner" means a Partner admitted to the Partnership after the execution of the Agreement who is not a Substitute Partner. "Agreement" means this Limited Partnership Agreement of Silverstein Family Limited Partnership 2002, Ltd. "Capital Account" means, with respect to any Partner, as of any given date, the Capital Account as defined by Section 7.3 below. The provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations ss. 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Treasury Regulations. In the event the Partners shall determine that it is prudent to modify the manner in which the Capital Accounts, or any debits or credits thereto, (including, without limitation, debits or credits relating to liabilities which are secured by contributed or distributed Property or which are assumed by the Partnership or Partners) are computed in order to comply with such Treasury Regulations, the Partners may make such modification, provided that it is not likely to have a material affect on the amounts distributable to any Partner pursuant to Article 20 hereof upon the dissolution of the Partnership. The Partners also shall make any appropriate modifications in the event unanticipated events might otherwise cause this Agreement not to comply with Treasury Regulations ss. 1.704-1(b). Each Partner's Capital 3 Account shall be determined and maintained in accordance with the rules of Treasury Regulations ss. 1.704-1 (b)(2)(iv). "Certificate" means that Certificate of Limited Partnership of the Partnership filed with the Florida Department of State, or any other applicable state agency. "Code" means the Internal Revenue Code of 1986, as amended from time to time (or any corresponding provisions of succeeding laws). "Defaulting Event" means (a) a general assignment by the Partnership or by any of the Partners for the benefit of creditors; (b) the appointment of a receiver, trustee or custodian for all or any substantial part of the property and assets of the Partnership or of any of the Partners; (c) the entry of an order for relief under Title 11 of the United States Code, as amended from time to time, against the Partnership or against any of the Partners, or any other judgment or decree entered against the Partnership or against any of the Partners by any court of competent jurisdiction [which order, judgment or decree continues unstayed and in effect for a period of sixty (60) consecutive days] in any involuntary proceeding against the Partnership or against any of the Partners under present or future federal bankruptcy laws or under any other applicable bankruptcy, insolvency or other laws respecting debtor's rights; or (d) the commencement by the Partnership or by any of the Partners of any voluntary proceeding under present or future federal bankruptcy laws or under any other applicable bankruptcy, insolvency or other laws respecting debtor's rights. "Disabling Event" means (a) the death of any Partner who is a natural person, (b) a determination by a court of competent jurisdiction that any Partner who is a natural person is legally incompetent, or (c) the dissolution or termination of any Partner who is a firm, corporation, trust or other entity. "General Partner" means the Person who executes the signature pages of the Agreement as a General Partner or has become a General Partner pursuant to the terms of this Agreement and has not ceased to be a General Partner. "Interest" or "Partnership Interest" means the percentage interest of a Partner in the Partnership at any particular time during the term of the Partnership as set forth in Exhibit A, as amended. "Legally Separated" means that spouses shall have entered into a written separation agreement. "Limited Partner" means any Partner in the Partnership other than a General Partner who executed the signature pages of this Agreement as a Limited Partner or has become a Limited Partner, provided that a person may be both a General Partner and a Limited Partner. "Partner" means a partner, whether a General Partner or a Limited Partner, and "Partners" means all the General and Limited Partners of the Partnership. "Partnership" means Silverstein Family Limited Partnership 2002, Ltd., a Florida limited partnership, formed by this Agreement. 4 "Person" means any individual, partnership, (general or limited), corporation, joint venture, limited liability company, association, estate, trust or other entity. "Property" means all real and personal property acquired by the Partnership, and any improvements thereto, and shall include both tangible and intangible property. "Related Party" means any direct lineal descendent of a Partner or the Spouse of such descendent. "Spouse" means a person who: (a) is legally married to and not legally separated from the other if the other is living; or (b) was married to and not legally separated from the other at the time of the other's death. "Substitute Partner" means a Partner admitted to the Partnership after the execution of the Agreement by means of the transfer to such Partner of all or any of the Partnership Interest of a Partner who is a prior signatory to the Agreement. "Treasury Regulations" means the income tax regulations, including temporary regulations, promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). "Withdrawing Partner" means a Partner who has elected to withdraw from the Partnership pursuant to the provisions of Article 18 of this Agreement. ARTICLE 6 PERCENTAGE INTEREST IN THE PARTNERSHIP Each Partner's Percentage Interest shall be determined by dividing the Capital Account of each Partner by the aggregate then existing Capital Accounts. All references to the words "in interest" in phrases such as "majority in interest" of the Partners or Limited Partners shall refer to the then Percentage Interests held by the Partners, Limited Partners or other designated group. ARTICLE 7 CAPITAL 7.1 Capital Contributions. The Partners shall contribute as their initial capital contributions to the Partnership all of their right, title and interest in and to the property described in Exhibit B attached hereto and made a part hereof. The Property described in Exhibit B has the fair market value (net of liabilities assumed or taken subject to by the Partnership to which such Property is subject) listed opposite such Property and that each Partner's Capital Account shall be credited with an initial capital contribution equal to the fair market value listed opposite the Partner's name in Exhibit B. 7.2 Additional Capital Contributions. No Partner shall be obligated or required to make any additional capital contributions to the Partnership. The General Partners, however, may make additional capital contributions to the Partnership with the written consent of a majority in interest of the Partners. In any other event, the Partners may make additional contributions to the Partnership only if such additional capital contributions are made pro rata by all the Partners or all the Partners consent in writing to any non-pro rata contribution; The fair market value of any property other than cash or widely-traded securities to be contributed as an additional capital contribution shall be (a) agreed upon 5 by the contributing Partner and a majority in interest of the Partners before contribution, or (b) determined by a disinterested appraiser selected by the General Partners. The Partners shall make additional capital contributions as provided in Exhibit B. 7.3 Capital Accounts. A separate "capital account" shall be maintained for each Partner in the manner provided in Treasury Regulations ss. 1.704-1(b)2(iv). For purposes of this paragraph, a Partner who has more than one Interest in the Partnership shall have a single Capital Account that reflects all such Interests, regardless of the class of Interest owned by the Partner (e.g., General Partner or Limited Partner) and regardless of the time or manner in which such Interest was acquired. Separate Capital Accounts shall be maintained for each Partner in accordance with the following provisions: a. To each Partner's Capital Account there shall be credited the fair market value of such Partner's initial capital contribution and any additional capital contributions, such Partner's distributive share of profits and the amount of any Partnership liabilities that are assumed by such Partner. b. To each Partner's Capital Account there shall be debited the amount of cash and the fair market value of any Property distributed to such Partner pursuant to any provision of this Agreement, such Partner's distributive share of losses and the amount of any liabilities of such Partner that are assumed by the Partnership or that are secured by any property contributed by such Partner to the Partnership. c. In the event any Interest in the Partnership is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred Interest. d. The Capital Account shall also include a pro rata share of the fair market value of any Property contributed by a Person who is not a Partner, such value to be the same value reported for federal gift tax purposes if a gift tax return is filed, and if not, the value in the case of real property shall be determined by an independent M.A.I. appraiser actively engaged in appraisal work in the area where such Property is located and selected by the General Partners, and otherwise by the certified public accountant or accountants then serving the Partnership. e. If any Partner makes a non-pro rata capital contribution to the Partnership or the Partnership makes a non-pro rata distribution to any Partner, the Capital Account of each Partner shall be adjusted to reflect the then fair market value of the assets held by the Partnership immediately before the capital contribution or distribution. 7.4 Interest on and Return of Capital. No Partner shall be entitled to any interest on such Partner's Capital Account or on such Partner's contributions to the capital of the Partnership, and, except as otherwise provided in Articles 18, 19 and 20 hereof, no Partner shall have the right to demand or to receive the return of all or any part of such Partner's Capital Account or of such Partner's contributions to the capital of the Partnership. 7.5 Loans to the Partnership. In the event the Partnership has insufficient funds to meet its obligations as they come due and to carry out its routine, day-to-day affairs, then, in lieu of obtaining required funds from third parties or selling its assets in order to provide required funds, the Partnership may, but shall not be required to, borrow necessary funds from one or more of the Partners as designated by the General Partners; provided that the terms of such borrowing shall be commercially reasonable and the Partnership 6 shall not pledge its assets to secure such borrowing. In the event the General Partners are required to pay a Partnership debt or obligation, such payment shall be treated as a loan by the General Partners to the Partnership, which loan shall be payable on demand of the General Partners and shall bear interest at a commercially reasonable rate. No part of any loan made by a Partner to the Partnership shall be considered a contribution to the Partner's Capital Account, nor shall any loan made to a Partner by the Partnership be considered a distribution from or decrease in that Partner's Capital Account. 7.6 Allocation with Respect to Property. If, on the formation of the Partnership or if at any time during the term of the Partnership, any Partner contributes to the Partnership Property with an adjusted basis to the contributing Partner which is more or less than the agreed fair market value and which is accepted by the Partnership at the time of its contribution, the taxable income, gain, loss, deductions and credits with respect to such contributed property for tax purposes only (but not for purposes of calculating the Partners' respective Capital Accounts) shall be shared among the Partners so as to take account of the variation between the basis of the Property to the Partnership and its agreed fair market value at the time of contribution, pursuant to Section 704(c) of the Code. 7.7 Receipt of Life Insurance Proceeds. From time to time, the Partnership may own insurance on the life of a Partner. Any proceeds from these life insurance policies received at the death of an insured Partner, or by reason of an accelerated death benefit if permitted in the policy, shall be treated as Partnership Property. The proceeds of such policy shall increase the Capital Account of each Partner in proportion to each Partner's aggregate Interest in the Partnership immediately preceding receipt of the proceeds. ARTICLE 8 ALLOCATION OF PROFITS, LOSSES AND TAX ITEMS The profits, losses and distributive shares of tax items shall be allocated to the Partners pro rata based upon their respective Percentage Interests in the Partnership during the period over which such profits, losses and tax items were accrued. The parties are aware of the income tax consequences of the allocations under this Article 8, and shall be bound by these provisions in reporting their share for income tax purposes. ARTICLE 9 DISTRIBUTIONS TO PARTNERS 9.1 Distributions of Cash. Except as otherwise provided in Articles 18, 19 and 20 hereof, distributions of cash shall be made by the Partnership to the Partners in proportion to their respective Percentage Interests in the Partnership at such times and in such amounts as may be determined from time to time by the General Partners; provided, however, the General Partner is authorized to make disproportionate distributions to the Limited Partners, any other provision in this Agreement notwithstanding. The General Partner may elect to retain cash to further the business of or create a reserve fund for the Partnership for any reason. 9.2 Distributions in Kind. Distributions in kind of the Partnership Property, in liquidation or otherwise, shall be made only with the consent of the General Partner and only at a value established by the Partners. Prior to any such distribution in kind, the difference between such established value and the book value of the property to be distributed shall be credited or charged, as is appropriate, to the Partners' Capital Accounts in proportion to their Percentage Interests in the Partnership. Upon the distribution of such 7 Property, such agreed upon value shall be charged to the Capital Accounts of the Partners receiving such distribution. 9.3 No Entitlement to Distributions. Notwithstanding any other provision of this Agreement, no Limited Partner shall be deemed, at any time or from time to time, to be entitled within the meaning of ss. 620.146, Florida Statutes, to any distribution from the Partnership. 9.4 Interest of General Partner. The aggregate Interest of the General Partner in each material item of Partnership income, gain, loss, deduction or credit shall be equal to at least one percent (1%) of each such item during the existence of the Partnership. 9.5 Allocation after Assignments. In the event of an assignment of a Limited Partnership Interest in accordance with Article 16, allocation of items of Partnership income, gain, loss, deduction and credit between the assignor and assignee shall be based on the number of days in a particular year during which each such Limited Partnership Interest is held according to Partnership records, or on any other basis deemed reasonable by the General Partner consistent with the provisions of Code Section 706(d) and the Treasury Regulations promulgated thereunder. ARTICLE 10 LIMITED LIABILITY OF LIMITED PARTNERS 10.1 Partnership Losses and Debts. Notwithstanding the provisions hereof for the allocation of the Partnership's losses and for the distribution of cash to the Partners by the Partnership, the Limited Partners shall not be required to make any contributions to the capital of the Partnership for the payment of any such losses or for any other purposes nor shall any Limited Partner be responsible or obligated to any third parties for any debts or liabilities of the Partnership in excess of the sum of the Limited Partners unrecovered contributions to the capital of the Partnership and the Limited Partners share of any undistributed profits of the Partnership. 10.2 Negative Capital Accounts. The Limited Partners shall not be required to pay to the Partnership or to any other Partner any deficit or negative balance which may exist from time to time in their respective Capital Accounts as a result of the provisions hereof for the allocation to the Partners of the Partnership's losses as provided in Article 8 hereof and for the distribution of cash to the Partners by the Partnership as provided in Section 9.1 hereof. ARTICLE 11 MANAGEMENT OF PARTNERSHIP 11.1 Powers and Duties of the General Partners. The General Partners shall be responsible for the day-to-day management of the Partnership's business and affairs and shall devote such time and effort to the Partnership as shall reasonably be required for its welfare and success. Specifically, except as otherwise limited in this Agreement, the General Partners are authorized to manage, administer, operate, lease, sell, exchange, pledge, encumber, transfer, purchase, grant options related to, and otherwise deal with the Partnership assets on behalf of the Partnership. If at any time the General Partners deem it advisable or in the best interests of the Partnership that any Property should be held by a nominee, the General Partner may transfer such Property to a corporation, individual or 8 other nominee for the Partnership, but notwithstanding the transfer to any such nominee, said Property shall be deemed to be the Property of the Partnership. All decisions of the General Partner shall be final. The General Partner may make such delegation of duties and responsibilities as it may deem advisable. The General Partner shall exercise ordinary business judgment in managing the affairs of the Partnership. The General Partner does not in any way guarantee the return of the Limited Partners' Capital Contributions or a profit from the operations of the Partnership; and further, the General Partner shall not be liable to any Limited Partner because of a loss of investment or a loss in operations, except as provided in Section 11.5. 11.2 Limitations on Authority of General Partners. Notwithstanding the provisions of Section 11.1 above, the consent of a majority in interest of the Limited Partners shall be required to do any of the following: a. any act in contravention of this Agreement; b. any act which would make it impossible to carry on the ordinary business of the Partnership; c. confess a judgment against the Partnership; d. file or consent to filing a petition for or against the Partnership under any federal or state bankruptcy, insolvency or reorganization act; e. possess Partnership Property or assign rights in Partnership Property for other than a Partnership purpose; f. loan Partnership funds in excess of Twenty-Five Thousand Dollars ($25,000) or for a term in excess of one (1) year to any Partner; g. make a non-pro rata distribution or return of capital to any Partner, except as otherwise provided in this Agreement; or h. any act that would subject any Limited Partner to liability as a General Partner. The General Partner may not, without the unanimous written consent of the Limited Partners, do any of the following: i. directly or indirectly own or hold any beneficial interests in all or any portion of any deed of trust, mortgage, or other encumbrance or debt which shall be secured by lien on any Partnership Property; ii. except as otherwise provided, admit any Substitute or Additional Limited or General Partner into the Partnership; iii. amend this Agreement; or iv. change or reorganize the Partnership into any other legal form. 9 11.3 Compensation for Services. The Partnership may pay to the General Partners compensation for any services that the General Partners render to the Partnership in an amount commensurate with the value of the services rendered as determined by the General Partners, provided that such compensation shall be at reasonable and competitive rates for comparable services available in the localities where the Partnership owns Property. 11.4 Limited Partners. The Limited Partners shall not participate in the general conduct or control of the Partnership's affairs and shall have no right or authority to act for or to bind the Partnership. The Limited Partners hereby consent to the exercise by the General Partners of the powers conferred by this Agreement and to the employment, when and if the same is deemed necessary or advisable, of such brokers, agents, accountants, attorneys and such other advisors as the General Partners may determine to be appropriate for the management of the Partnership business. When a Limited Partner has rightfully received the return in whole or in part of the Limited Partner's Capital Contribution, such Partner nevertheless is liable to the Partnership for any sum, not in excess of such return with interest, necessary to discharge Partnership liabilities to all creditors who extended credit or whose claims arose before such return as provided in ss. 620.148, Florida Statutes. 11.5 Liability of the General Partners. So long as the General Partners shall act in good faith with respect to the conduct of the business and affairs of the Partnership, no General Partner shall be liable or accountable to the Partnership or to any of the Partners, in damages or otherwise, for any error of judgment, for any mistake of fact or of law, or for any other act or thing which the General Partner may do or refrain from doing in connection with the business and affairs of the Partnership except for willful misconduct or gross negligence or breach of fiduciary duty, and further except for breaches of contractual obligations or agreements between the General Partners and the Partnership. This provision is intended to supplant any provisions of the Act, in regard to the General Partners' liability to the Partnership and other Partners. 11.6 Indemnity. The Partnership (but not the Limited Partners) shall indemnify, defend, save and hold the General Partners wholly harmless from and against any loss, expense or damage suffered by the General Partners by reason of anything the General Partners may do or refrain from doing hereafter for and on behalf of the Partnership and in furtherance of the General Partners' Interests; provided, however, that the Partnership shall not be required to indemnify any General Partners for any loss, expense or damage which the General Partners might suffer as a result of the General Partners' willful misconduct or gross negligence or breach of fiduciary duty. 11.7 Independent Investments. Any Partner may engage independently or with others in other business ventures of every nature and description, whether or not in competition with Partnership Properties, including, without limitation, the ownership, operation, management, syndication and development of real estate and neither the Partnership nor any other Partner shall have any rights in and to such independent ventures or the income or profits derived therefrom. 11.8 Action by Partners. The Partners may take any action deemed necessary or desirable or determined to be in the best interest of the Partnership by a majority in interest vote of the Partners except for such action which is reserved under this Agreement to the General Partners for determination or such greater percentage otherwise provided in this Agreement. 10 11.9 Action by Partners Without a Meeting. With respect to any matter requiring or contemplating any action or approval by the Partners pursuant to this Agreement or pursuant to law, such action or approval will be deemed to have been accomplished without a meeting if consents in writing setting forth the action to be taken are signed by the Partners existing as of the record date determined in the sole discretion of the General Partner and representing the requisite percentage of Interests for such approval, and such written consents are delivered to the General Partner. 11.10 Participation at Meetings by Means of Communications Equipment. Any one (1) or more of the Partners may participate in any meeting of the Partners by means of conference telephone or similar communications equipment by means of which all Persons participating in the meeting can hear each other. Participation by such means shall be deemed to constitute presence in person at such meeting. ARTICLE 12 POWER OF ATTORNEY 12.1 Grant of Power. Each of the Limited Partners does hereby irrevocably constitute and appoint the General Partners as the Limited Partner's true and lawful attorney, in the Limited Partner's name, place and stead, to make, execute, consent to, swear to, acknowledge, record and file: a. a Certificate, or an amendment thereto, under the Act and under the applicable laws of any other jurisdiction in which the General Partners deem such filing to be necessary or desirable; b. any certificate or other instrument which may be required to be filed by the Partnership or the Partners under the Act, FRUPA or under the applicable laws of any other jurisdiction, to the extent the General Partners deem any such filing to be necessary or desirable; c. any and all amendments or modifications to the Certificate or to any other instrument described above, provided that an amendment shall be filed within thirty (30) days of the occurrence of any of the events required by the Act; d. all certificates and other instruments which may be required to effectuate the dissolution and termination of the Partnership pursuant to the provisions of this Agreement; e. any and all consents or other instruments deemed to be necessary or desirable by the General Partners for the admission of a Substitute or Additional Limited or General Partners pursuant to this Agreement; and f. all other instruments, including, without limitation, all instruments related to the acquisition, holding, selling, leasing and financing of Partnership Property as the General Partners may deem necessary or desirable to carry out the provisions of this Agreement in accordance with its terms. 12.2 Survival of Power of Attorney; Assignees. It is expressly intended by each of the Limited Partners that the foregoing Power of Attorney is a special Power of Attorney coupled with an interest. As such, it is irrevocable and shall survive the disability, incompetence, insolvency, bankruptcy, dissolution, liquidation or any other termination of 11 the business of the Limited Partners, whether voluntarily or involuntarily. The foregoing Power of Attorney shall survive the delivery of assignment by and of the Limited Partners of the whole or any portion of their Partnership Interest and when the assignee has executed the written agreement required of an assignee, said assignee shall be deemed to have executed a Power of Attorney coupled with an interest and the foregoing Power of Attorney of the assignor Limited Partner shall survive the delivery of such assignment for the sole purpose of enabling the General Partner to execute, acknowledge and file any and all instruments necessary to effectuate such substitution. It is understood that the General Partner may require that the assignee execute a separate similar Power of Attorney as a condition of their admission as a Substituted Limited Partner. 12.3 Generally. One of the ways that the aforementioned power of attorney may be exercised is by listing the names of the Limited Partners and having the signature of the attorney-in-fact appear, with the notation that the signatory is signing as attorney-in-fact of the listed Limited Partners. The General Partners shall not be under any obligation under the Act to deliver or mail copies of the Certificate or any amendments to the Limited Partners. ARTICLE 13 BANKING The funds of the Partnership shall be kept in one or more separate bank accounts in the name of the Partnership in such banks or other federally insured depositories as may be designated or shall otherwise be invested in the name of the Partnership in such manner and upon such terms and conditions as may be designated by the General Partners. All withdrawals from any such bank accounts or investments established by the Partnership hereunder shall be made on such signature or signatures as may be authorized from time to time by the General Partners. Any account opened by the General Partners for the Partnership shall not be commingled with other funds of the General Partners or interested persons. ARTICLE 14 ACCOUNTING 14.1 Fiscal Year The fiscal year of the Partnership shall end on the last day of the calendar year. 14.2 Method of Accounting. The Partnership's books of account shall be maintained, and its income, gains, losses and deductions shall be determined and accounted for in accordance with such method of accounting as may be adopted for the Partnership for federal income tax purposes, and for purposes of this Agreement, the Partnership shall account for each and every item of its income, gain, loss and deduction in the same manner as it accounts for each such item for income tax purposes. 14.3 Financial and Operating Statements and Tax Returns. Unless otherwise agreed to by all the Partners, within sixty (60) days from the close of each fiscal year of the Partnership, the General Partners shall deliver to each of the Partners unaudited financial statements which shall include a balance sheet and related profit and loss statement and changes in financial condition prepared on a federal income tax basis. In addition, within seventy-five (75) days from the close of each fiscal year of the Partnership, the General Partners shall deliver to each Partner a statement setting forth such Partner's allocable share of all tax items of the Partnership for such year, and all such other information as 12 may be required to enable each Partner to prepare a Partner's federal, state and local income tax returns in accordance with all then applicable laws, rules and regulations. The General Partners also shall cause to be prepared and filed all federal, state and local income tax returns required of the Partnership for each fiscal year. 14.4 Location of and Access to Partnership Records. The following records of the Partnership shall be kept at its specified office where they shall be subject to inspection and copying at the reasonable request and at the expense of any Partner during ordinary business hours: a. a current list of the full name and last known business address of each Partner, separately identifying the General Partners and the Limited Partners (in alphabetical order); b. a copy of the Certificate of Limited Partnership and all certificates of amendment thereto, together with executed copies of any powers of attorney pursuant to which any certificate has been executed; c. copies of the Partnership's federal, state and local income tax returns and reports, if any, for the three (3) most recent years; and d. copies of this Agreement, as amended, and of any financial statements of the Partnership for the three (3) most recent years. 14.5 Tax Elections. The General Partners may cause the Partnership to make any and all elections applicable to a partnership for federal and state income tax purposes as they in their discretion shall deem to be in the best interests of the Partners and the Partnership. Such elections include, but are not limited to, an election under Section 754 of the Code with respect to distributions of Partnership property described in Section 734 of the Code and with respect to transfers of Partnership Interests described in Section 743 of the Code. 14.6 Tax Matters Partner. The General Partner is designated the Partnership's Tax Matters Partner, pursuant to Code Section 6231(a)(7), for purposes of filing federal partnership tax returns, partnership audits, and administrative and judicial proceedings involving tax matters of the Partnership. ARTICLE 15 ADMISSION OF ADDITIONAL LIMITED PARTNERS 15.1 Admission by Consent of Partners. No person, firm, corporation, trust or other entity shall be admitted to the Partnership as an Additional Limited Partner without the unanimous consent of the Partners. 15.2 Capital Contributions and Fair Market Value. The Partners shall determine the initial capital contribution to be made by an Additional Limited Partner and the fair market value of such contribution. The fair market value of any Property other than cash or widely-traded securities to be contributed by an Additional Limited Partner as the Additional Limited Partner's initial capital contribution shall be (a) agreed upon by the Additional Limited Partner and a majority in interest of the Partners before contribution, or (b) determined by a disinterested appraiser selected by the General Partners 13 15.3 Limitations. Notwithstanding Section 15.1 hereof, no Additional Limited Partner shall be admitted until such prospective Limited Partner: a. provides evidence satisfactory to the General Partners that such an admission will not (i) violate any applicable securities laws, or (ii) cause a termination of the Partnership under Section 708(b) or any other provision of the Code; b. pays all reasonable expenses connected with such admission; and c. agrees to be bound by all of the terms and provisions of this Agreement by becoming a signatory hereto. 15.4 Admissions in Violation of this Article. Any admission of an Additional Limited Partner in violation of this Article 15 shall be null and void and of no force and effect whatsoever. ARTICLE 16 TRANSFER OF PARTNERSHIP INTERESTS AND ADMISSION OF SUBSTITUTE LIMITED PARTNERS 16.1 Transfer of Partnership Interest. No Partner shall sell, assign, transfer, mortgage, pledge, encumber, hypothecate or otherwise dispose of all or any part of a Partner's Interest to any Person without first offering in writing to sell such Interest to the Partnership. The Partnership shall have the right to accept the offer at any time during the thirty (30) days following the date on which the written offer is delivered to the Partnership. If the Partnership shall fail to accept the offer within the thirty (30) day period, such Interest may during the following sixty (60) days be disposed of free of the restrictions imposed by this Agreement; provided, however, that the purchase price for such Interest shall not be less and the terms of purchase for such Interest shall not be more favorable than the purchase price and the terms of purchase that would have been applicable to the Partnership had the Partnership purchased the Interest; provided further that any Interest not so disposed of within the sixty (60) day period shall thereafter remain subject to the terms of this Agreement. 16.2 Transfers of Partnership Interests to Certain Transferees. Notwithstanding Section 16.1 hereof, any or all of a Limited Partner's Interest in the Partnership may be transferred to a transferee without an offer being made to the Partnership if: a. such transferee is the Spouse or a Related Party to the Limited Partner or a tax-exempt organization; and b. such transfer (i) occurs as a result of the occurrence of a Disabling Event with respect to such Limited Partner, or (ii) is by way of gift. 16.3 Transfers from Custodianships. Notwithstanding Section 16.1 hereof, any Interest as a Limited Partner which is held by a custodian for a minor under the laws of the State of Florida or any other state shall be fully transferable and assignable to the minor, without an offer being made to the Partnership, when the minor reaches the age of termination of such custodianship under the applicable statute. 16.4 Transfer of Interest by General Partners. Subject to the provisions of Article 17, upon the transfer by a General Partner of all or any portion of a General Partner's 14 Interest in the Partnership, such transferred Interest shall be converted into the Interest of a Limited Partner in the same manner that a Defaulting or Disabled General Partners' Interest is so converted pursuant to Section 19.1(a). 16.5 Admission of Substitute Limited Partners. Notwithstanding Sections 16.1, 16.2, 16.3 and 16.4 hereof, a transferee shall be admitted as a Substitute Limited Partner only if: a. the transferring Partner (or the transferring Partner's personal representative) and the transferee: i. execute, acknowledge and deliver to the General Partners such instruments of transfer and assignment as are in form and substance satisfactory to the General Partners; and ii. furnish to the General Partners such assurances as the General Partners may request, including, without limitation, an opinion of counsel to the Partnership or counsel otherwise satisfactory to the General Partners, that the transferring Limited Partner's interest in the Partnership has been registered for sale under the Securities Act of 1933, as amended, and under all applicable state securities laws or that such registration under the said Securities Act of 1933 and under all applicable state securities laws is not required and the transfer shall not cause a termination of the Partnership under Section 708(b) or any other provision of the Code; and b. the transferee: i. pays all reasonable expenses connected with such substitution; and ii. agrees to be bound by the terms and provisions of this Agreement by becoming a signatory hereto; and c. all of the non-transferring Partners agree to the admission of the transferee as a Substitute Limited Partner. 16.6 Rights of a Transferee. If a transferee of a Partnership Interest is not admitted as a Substitute Limited Partner because of the failure to satisfy the requirements of Section 16.5 hereof, such transferee shall nevertheless be entitled to receive such distributions from the Partnership as the transferring Partner would have been entitled to receive under Sections 9 and 20.2 of this Agreement with respect to such Interest had the transferring Partner retained such Interest. A transferee who does not become a Substitute Limited Partner as provided herein has no right to: (a) require any information or accounting for Partnership transactions; (b) inspect the Partnership books; (c) seek judicial dissolution; or (d) exercise any voting or consensual rights, all of which shall be recognized by the Partnership as rights solely of the assignor. 16.7 Designation of Successor in Interest. Subject to the provisions of this Article 16, a transfer pursuant to a designation of successor in interest shall become effective immediately upon the death of the designating Limited Partner. 16.8 Effect of Transfers and Admissions in Violation of this Article. Any transfer of a Partnership Interest or admission of a Substitute Limited Partner in violation of this 15 Article 16 shall cause both the transfer and the admission to be null and void and of no force and effect whatsoever. ARTICLE 17 TRANSFER OF GENERAL PARTNERSHIP INTEREST AND ADMISSION OF SUBSTITUTE GENERAL PARTNER 17.1 Transfer of a General Partner's Interest. Notwithstanding Section 16.4 hereof, if a General Partner transfers a General Partner's entire Interest in the Partnership and such transfer is not the result of the occurrence of a Disabling Event with respect to the General Partner, or if such transfer is a transfer by will to the Spouse or in trust for the benefit of the Spouse of the General Partner, such Interest shall remain a General Partnership Interest in the control of the transferee. Notwithstanding the foregoing, each General Partner may encumber or pledge up to ninety percent (90%) of a General Partner's Interest in order to secure loans from commercial financial institutions. 17.2 Admission of a General Partner. Subject to the requirement of unanimous consent but otherwise notwithstanding Section 17.1 hereof, a transferee shall be admitted as a Substitute General Partner only if: a. the General Partner (or the General Partner's personal representative) and the General Partner's transferee: i. execute, acknowledge and deliver to the Partnership such instruments of transfer and assignment as are in form and substance satisfactory to the Partnership; and ii. furnish to the Partnership such assurances as the Partnership may request, including, without limitation, an opinion of counsel to the Partnership, that the transferring General Partner's Interest in the Partnership has been registered for sale under the Securities Act of 1933, as amended, and under all applicable state securities laws or that such registration under the said Securities Act of 1933 and under all applicable state securities laws is not required and the transfer shall not cause a termination of the Partnership under Section 708(b) or any other provision of the Code; and b. the transferee: i. pays all reasonable expenses connected with such substitution; and ii. agrees to be bound by the terms and provisions of this Agreement by becoming a signatory hereto. 17.3 Effect of Transfers and Admissions in Violation of this Article. A transfer of a General Partnership Interest or admission of a Substitute General Partner in violation of this Article 17 shall be null and void and of no force and effect whatsoever. ARTICLE 18 WITHDRAWALS Any Partner may elect to withdraw from the Partnership and to sell a Partner's entire Interest in the Partnership to the Partnership at any time by serving written notice of such 16 election upon the Partnership. Such notice shall set forth the date upon which such withdrawal shall become effective (the "Effective Date"), which shall be not less than sixty (60) days and not more than ninety (90) days from the date of such notice. The purchase price for a Withdrawing Partner's Interest in the Partnership shall be One Dollar ($1.00). ARTICLE 19 CONVERSION OR PURCHASE OF CERTAIN PARTNER'S INTERESTS 19.1 Conversion of General Partner's Interest. a. Subject to the provisions of Section 19.2, upon the occurrence of a Defaulting Event or a Disabling Event with respect to a General Partner (the "Defaulting General Partner" or the "Disabled General Partner"), the Defaulting General Partner or Disabled General Partner's Interest in the Partnership as a General Partner shall be converted into the Interest of a Limited Partner effective as of the date of the happening of the Defaulting Event or Disabling Event, and the Defaulting General Partner or Disabled General Partner, or the General Partner's transferee or personal representative, as the case may be, shall cease to be a General Partner of the Partnership and shall become solely a Limited Partner of the Partnership as of such date, without any rights or obligations to participate in the management of the Partnership but with the same Percentage Interest in the Partnership, the same rights in and to all distributions made by the Partnership, in liquidation or otherwise, and the same share of the Partnership's profit, loss and specially allocated items for both financial accounting and income tax purposes as the Defaulting General Partner or Disabled General Partner had with respect to the General Partner's Interest in the Partnership as a General Partner; provided, however, that a General Partner may make a testamentary transfer of all of the General Partner's General Partnership Interest to the General Partner's Spouse or in trust for the benefit of a General Partner's Spouse, and such Interest shall remain a General Partnership Interest and such Spouse or trust, as the case may be. shall have all of the rights, duties, powers and obligations of a General Partner as set forth herein and the Partnership shall continue. b. In the event the Defaulting General Partner or Disabled General Partner's Interest in the Partnership as a General Partner of the Partnership is required to be converted hereunder into the Interest of a Limited Partner of the Partnership, the Defaulting General Partner or Disabled General Partner, or the General Partner's transferee or personal representative, as the case may be, shall promptly, upon demand of the Partnership, execute and deliver to the Partnership all documents that may be necessary or appropriate, in the opinion of counsel for the Partnership, to effect such conversion and, if necessary, to reflect the admission of the Defaulting General Partner or Disabled General Partner's transferee or personal representative to the Partnership as a Limited Partner and the agreement of such transferee to be bound by all of the terms and conditions of this Agreement. 19.2 Purchase of Defaulting Partner's Interest. a. Upon the occurrence of a Defaulting Event with respect to a Partner (the "Defaulting Partner"), the Partnership shall have the right, exercisable by giving written notice to the Defaulting Partner within sixty (60) days after the date of the Defaulting Event (for purposes of this Section 19.2, the date such notice is given by the Partnership is hereinafter referred to as the "Notice Date") to purchase the Defaulting Partner's Interest in the Partnership for the fair market value of such Interest. The fair market value of the Interest of the Defaulting Partner shall be the amount that the Defaulting Partner would 17 receive in exchange for the Defaulting Partner's entire Interest in the Partnership if the Partnership sold all of its assets, subject to their liabilities, at their fair market values as of the Notice Date and distributed the net proceeds from such sale in complete liquidation of the Partnership. b. The fair market value of the Interest shall be determined as expeditiously as possible by a disinterested appraiser mutually selected by the Defaulting Partner and the Partnership (the Partnership's selection being made by the remaining Partners exclusive of the Defaulting Partner's Interest). If the Defaulting Partner and the Partnership are unable to agree upon a disinterested appraiser, then the Defaulting Partner and the Partnership shall each select a disinterested appraiser and if the disinterested appraisers selected are unable to agree as to the fair market value of the Interest, then the two (2) disinterested appraisers shall select a third (3rd) disinterested appraiser who shall determine the fair market value. The determination of the fair market value of the Interest by the appraiser or appraisers shall be conclusive and binding on all parties. All costs of an appraiser mutually selected by the Defaulting Partner and the Partnership or by the two (2) disinterested appraisers shall be shared equally by the Defaulting Partner and the Partnership. All costs of an individually selected appraiser shall be borne by the party selecting such appraiser. The appraisers shall consider lack of marketability and minority interest discounts in determining fair market value of a Partnership Interest. c. Not later than thirty (30) days after the date on which the appraisal described above is complete (the "Appraisal Date"), the Partnership shall make a distribution of Property (which may be cash or, after compliance with Section 9.2 hereof, other assets of the Partnership or Interests therein) to the Defaulting Partner with a value equal in amount to the fair market value for the Defaulting Partner's Interest; provided, however, that at the election of the Partnership such distribution to the Defaulting Partner may be made in five (5) equal annual installments, the first of which shall be made on the thirtieth (30th) day after the Appraisal Date and one of which shall be made on the same date in each of the four (4) years thereafter; provided, further, however, that notwithstanding an election by the Partnership to make the distribution to the Defaulting Partner in five (5) equal annual installments, the Partnership may accelerate without penalty all of such installments at any time or any part of such installment at any time. In the event the Partnership elects to make distributions to the Defaulting Partner in five (5) equal annual installments as provided herein, the Partnership, in addition to such annual installments, shall pay the Defaulting Partner additional amounts computed as if the Defaulting Partner is entitled to interest on the undistributed amount of the total distribution to which the Defaulting Partner is entitled hereunder at an annual rate equal to the annual Federal mid-term rate in effect under Section 1274(d) of the Code, as determined on the thirtieth (30th) day after the Appraisal Date, which additional amounts, computed like interest, shall be due and payable on the same dates as the annual installments of the distribution payable to the Defaulting Partner hereunder. Any unpaid capital contributions of the Defaulting Partner and any damages occurring to the Partnership as a result of the Defaulting Event shall be taken into account in determining the net amount due the Defaulting Partner at the closing, and any excess of such unpaid capital contributions or damages over the amount due at closing shall be netted against subsequent installment payments as they become due. 19.3 Succession of Personal Representative. Upon the occurrence of a Disabling Event with respect to a Partner, and in the event a personal representative is appointed for a Disabled Partner and such Partner has not effectively designated a successor in interest other than his personal representative, such personal representative shall succeed to the 18 Disabled Partner's entire Interest in the Partnership, notwithstanding Section 16.1 hereof but subject to Sections 16.5, 19.1 and 19.2 hereof. 19.4 Option to Purchase Disabled Limited Partner's Interest. Notwithstanding the provisions of Sections 16.2 and 19.3 hereof, upon the occurrence of a Disabling Event with respect to a Limited Partner, the General Partners may elect to cause the Partnership to purchase the Interest of the Disabled Limited Partner in the Partnership in the same manner and on the same terms as if the Disabled Limited Partner had been a Defaulting Limited Partner and the Partnership had elected to purchase the Defaulting Limited Partner's Interest pursuant to Section 19.2 hereof. Such election shall be made by serving written notice of such election at any time within four (4) years of the Disabling Event to: a. the beneficiary or heir in the case of a Disabled Limited Partner who has died and whose Partnership Interest has passed by will or intestate succession to a person other than the personal representative of the Disabled Limited Partner; b. to the personal representative of the Disabled Limited Partner in the case of a Disabled Limited Partner who has died and who has not effectively designated a successor in interest other than his personal representative; c. to the Committee in the case of a Disabled Limited Partner who is determined to be legally incompetent; or d. to the partner, director, trustee or other party responsible for winding-up the affairs in the case of a Disabled Limited Partner who is a partnership, corporation, trust or other entity that has dissolved or terminated. 19.5 Withdrawal Event. Upon written consent of all Partners, other than the General Partner which would cease to be a Partner in the Partnership in the absence of this paragraph, the Partnership may waive any event of withdrawal of the General Partner as provided under ss. 620.124, Florida Statutes. If there is an event of withdrawal of a General Partner and there is at least one (1) General Partner that is not withdrawing, then the Partnership shall not be dissolved and the remaining General Partners shall continue the business of the Partnership without the withdrawing General Partner. If there is an event of withdrawal of the General Partner and there is no remaining General Partner after such withdrawal, then the Partners who have not withdrawn may, within ninety (90) days of such withdrawal, appoint a successor General Partner and elect to continue the business of the Partnership. In such case, the Partnership shall not be dissolved. ARTICLE 20 DISSOLUTION, LIQUIDATION AND TERMINATION OF PARTNERSHIP 20.1 Dissolving Events. The Partnership shall be dissolved, liquidated and terminated upon the happening of any of the following events: a. the election of the General Partners or a majority in interest of the Partners to terminate the Partnership; b. on December 31, 2035; or c. the occurrence of an event of withdrawal by a General Partner pursuant to ss. 620.124, Florida Statutes, unless there is at least one (1) remaining General 19 Partner, in which case the business of the Partnership shall be carried on by the remaining General Partner or, if there are no remaining General Partners, unless all Partners agree in writing to continue the Partnership and to the appointment of one or more General Partners, within ninety (90) days of such withdrawal. 20.2 Method of Liquidation. Upon the happening of any of the events specified in Section 20.1 above that require the Partnership to be dissolved, liquidated and terminated (unless the Partnership is continued as provided in Section 19.5), all of the Partnership's assets shall be liquidated and the Partnership shall be dissolved. In the course of such liquidation and dissolution, any of the Partnership's assets may be sold, and notwithstanding the provisions of the Act, any and all proceeds derived from such sale, together with all Partnership assets which are not sold, shall be applied and distributed in the following manner and in the following order of priority: a. to the payment of the debts and liabilities of the Partnership, including any debts or liabilities, other than Capital Accounts, owed to the Limited Partners (but not including any debts or liabilities owed to the General Partners), and to the expenses of liquidation in the order of priority as provided by law; then to b. the establishment of any reserves that the General Partners deem necessary for any contingent or unforeseen liabilities or obligations of the Partnership; provided, however, that any such reserves established by the General Partners shall be paid over to a bank or other designated agent to be held in escrow for the purpose of paying any such contingent or unforeseen liabilities or obligations and, at the expiration of such period as the Partners deem advisable, of distributing the balance of such reserves in the manner hereinafter provided in this Article; then to c. the payment of any debts or liabilities, other than Capital Accounts, of the Partnership to the General Partners; then to d. the payment to each Partner of a Partner's Capital Account; and then to e. the Partners, in proportion to their respective Percentage Interests in the Partnership. 20.3 Reasonable Time for Liquidation. A reasonable time, but in any event no longer than one hundred twenty (120) days after the happening of the event specified in Section 20.1 that required the Partnership to be liquidated, shall be allowed for the orderly liquidation of the Partnership's assets pursuant to Section 20.2 above in order to minimize the losses normally attendant upon such a liquidation. 20.4 Date of Dissolution. The Partnership shall terminate and dissolve when all of its assets have been applied and distributed in accordance with the provisions of Section 20.2 above. The establishment of any reserves in accordance with the provisions of Section 20.2 above shall not have the effect of extending the term of the Partnership, but any such reserves shall be distributed in the manner provided in such Article upon expiration of the period of such reserve. 20.5 Cancellation of Certificate. Upon dissolution and winding-up of the Partnership's business, the certificate of Limited Partnership shall be cancelled. 20 ARTICLE 21 AMENDMENT OF PARTNERSHIP AGREEMENT 21.1 Amendments Requiring Consent. This Agreement may be amended by the General Partner in any way deemed necessary or desirable by all of the Partners to satisfy any requirements, conditions, guidelines or election pursuant to or in connection with any opinion, directive, order, ruling or regulation of the Securities and Exchange Commission, the Internal Revenue Service or any other federal, state or local agency, or in connection with any federal, state or local statute or ordinance, compliance with which the General Partner deems to be in the best interests of the Partnership. This Agreement, however, shall not be amended without the consent of the Partners owning in the aggregate at least one hundred percent (100%) of the Interests outstanding on a given date, if the effect of such amendment would be to (a) change the purpose provisions set forth in Section 1.2; (b) increase the liability of the Partners; (c) change the contributions required of Partners; (d) change the rights and interests in distributions, profits and losses of the Partnership; (e) change the rights of Partners upon liquidation; (f) amend allocations under Article 8; (g) amend Article 16; or (h) amend this Article 21. 21.2 Amendments Not Requiring Consent. The General Partner may, without prior consent from any other Partner, amend any provision of this Agreement, from time to time, to: (a) add to the Agreement any further covenants, restrictions, deletions or provisions for the protection of the Partners; (b) cure an ambiguity or to correct or supplement any provisions contained herein; or (c) make such other provision in regard to matters or questions arising under this Agreement, that will not adversely affect the Interests of the Partners. 21.3 Prohibited Amendments. No amendment to this Agreement shall be effective if, in the opinion of counsel to the Partnership, such amendment could result in the Partnership's not being taxed as a partnership, or the Partnership being terminated for tax purposes. ARTICLE 22 GENERAL PROVISIONS 22.1 Entire Agreement. This Agreement represents the entire and complete agreement of the Partners with respect to the subject matter hereof, and supersedes all prior understandings and agreements, both written and oral, as to the subject matter hereof by and among any of the Partners hereto. 22.2 Waiver of Right of Partition. Each of the Partners does hereby waive any right such Partner may otherwise have to cause any asset of the Partnership to be partitioned among the Partners or to file any complaint or to institute any proceeding at law or in equity seeking to have any such assets partitioned. 22.3 Notices. Except as otherwise specifically provided herein, whenever any notice or other communication is required or permitted to be given hereunder, such notice or other communication shall be in writing and shall be (as elected by the party giving such notice) (a) delivered in person, or (b) sent by U.S. registered or certified mail, return receipt requested, postage prepaid to the Person to whom such notice is intended to be given at such address as such person may have previously furnished in writing to the Partnership or to such Person's last known address. Any notice or other communication delivered in person shall be deemed effectively given when delivered, and any such notice or other 21 communication mailed as hereinabove provided shall be deemed effectively given on the date of receipt. 22.4 Attorneys' Fees. In the event any Partner brings an action to enforce any provisions of this Agreement against the Partnership or any other Partners, whether such action is at law, in equity or otherwise, the prevailing party shall be entitled, in addition to any other rights or remedies available to it, to collect from the non-prevailing party or parties the reasonable costs and expenses incurred in the investigation preceding such action and the prosecution of such action, including but not limited to reasonable attorneys' fees and court costs. 22.5 Modifications. No change or modification of this Agreement shall be valid or binding upon a Partner, nor shall any term or condition of this Agreement be considered waived by a Partner, unless such change, modification or waiver is in writing and is signed by such Partner. 22.6 Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon the Partners, their legal representatives, transferees, heirs, successors and assigns. 22.7 Counterparts. This Agreement may be executed in several counterparts (including by means of telecopied signature pages), each of which shall be deemed an original but all of which shall constitute one and the same instrument. 22.8 Governing Law. This Agreement shall be construed in accordance with the laws of the State of Florida. In the event that any portion of this Agreement shall be contrary to the laws of the State of Florida at the present time or in the future, said provisions shall be deemed null and void, but this shall not affect the legality, of the remaining provisions of this Agreement. This Agreement shall be deemed to be modified and amended by the elimination of such provisions and this Agreement shall then be construed in such a way as will best serve the intention of the parties at the time of the execution of this Agreement. 22.9 Gender. Throughout this Agreement, wherever the context requires or permits, genders shall be deemed interchangeable, and the single number shall be deemed to include the plural, and vice versa. 22.10 Separability of Provisions. Each provision of this Agreement shall be considered separable and (a) if for any reason any provision or provisions herein are determined to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation of or affect those portions of this Agreement which are valid, or (b) if for any reason any provision or provisions herein would cause the Limited Partners to be bound by the obligations of the Partnership under the laws of the State of Florida as the same may now or hereafter exist, such provision or provisions shall be deemed void and of no effect. 22.11 Arbitration. Any dispute or controversy arising under, out of, in connection with or in relation to this Agreement, and any amendment thereof, or the breach thereof, or in connection with the information, operation or dissolution of the Partnership shall be determined and settled by arbitration in Sarasota County, Florida, in accordance with and pursuant to the Florida Arbitration Code, Chapter 682, Florida Statutes. Any award 22 rendered therein shall be final and binding upon each and all of the Partners and judgment may be entered thereon in any court having jurisdiction thereof. 22.12 Cumulative Remedies. The rights and remedies provided by this Agreement are cumulative, and the exercise of one right or remedy by any party shall not preclude or operate as a waiver of its right to use any or all other remedies. Such rights and remedies are given in addition to any other rights the parties may have by law, statute, ordinance or otherwise. 22.13 Successor as General Partner. In the event of a merger, consolidation or reorganization of a General Partner that is not a natural person, any successor shall be deemed to be the General Partner for all purposes and effects and shall succeed to and enjoy all rights and benefits conferred and bear all obligations and burdens imposed upon the predecessor General Partner. 22.14 Construction. All pronouns and other variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the organization, person or persons, may require. Except as herein otherwise provided to the contrary, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their personal representatives and assigns. 22.15 Further Assurances. Each Partner shall execute and deliver to the General Partner, within ten (10) days after receipt of the General Partner's written request, such other and further statements of Interest and holdings, designations, powers of attorney and other instruments as the General Partner deems necessary or desirable to comply with the requirements of law or administrative rule for the formation and operation of this Partnership. 22.16 Headings. The underlined headings of the Sections and Subsections herein are for convenience of reference only and shall not affect the interpretation of this Agreement {remainder of page intentionally left blank} 23 IN WITNESS WHEREOF, the undersigned have set their hands and seals as of the date first above written. GENERAL PARTNER: /s/ Barry Silverstein -------------------------- Barry Silverstein LIMITED PARTNER: /s/ Trudy Silverstein -------------------------- Trudy Silverstein EX-8 8 ex-8.txt Exhibit 8 INDENTURE OF TRUST made as of the 17th day of September, 2003, by and between BARRY SILVERSTEIN, as Grantor, and TRUDY SILVERSTEIN and DENNIS McGILLICUDDY, as Trustees. W I T N E S S E T H : The Grantor hereby transfers, assigns and delivers to the Trustees the property described in Schedule A annexed hereto (and the Trustees hereby acknowledge receipt of such property), to hold the same, IN TRUST, to invest and reinvest, to collect the rents, income and profits thereof, and to dispose of the same upon the terms hereinafter set forth. The trust created herein shall be known as the "JM SILVERSTEIN 2003 CLAT." FIRST A. In each year of the "trust term" (as hereinafter defined), the Trustees shall make payments aggregating the "annuity amount" (as hereinafter defined) to The William James Foundation, Inc. (or, if The William James Foundation, Inc. shall not be a "charitable organization" (as defined in Paragraph G below) at the time of any payment hereunder, to such one or more charitable organizations in such amounts or proportions, as the Trustees shall, in their sole and unreviewable discretion, select and determine). B. The "trust term" shall mean the twenty-five (25) year period commencing on the date hereof. C. The term "annuity amount" shall be such amount which shall be required to generate a Federal gift tax charitable deduction equal to the value of the initial net fair market value of the principal of such trust as finally determined for Federal gift tax purposes, for the annuity which is to be paid pursuant to the terms of Paragraph A above, as calculated using (a) the lowest Applicable Federal Rate promulgated by the Treasury Department for valuing annuities which the Trustees may elect to use under Section 7520(a) of the Internal Revenue Code of 1986, as amended (hereinafter referred to as the "Code"), and (b) the procedures promulgated by the Treasury Department for valuing annuities. In determining such initial net fair market value, the assets of such trust shall be valued at the values finally determined therefor for Federal estate tax purposes. If the initial net fair market value of the property contributed to the trust created hereunder is incorrectly determined, then, within a reasonable period after such net fair market value is finally determined, the Trustees shall (in the case of an undervaluation) pay to or shall (in the case of an overvaluation) receive from The William James Foundation, Inc. and/or the charitable organization or charitable organizations, as the case may be, as shall have received an incorrectly determined annuity amount, and if more than one, in the proportions in which they shall have shared in such incorrectly determined annuity amount, an amount equal to the difference between: (a) any annuity amounts actually paid, plus interest, compounded annually, computed for any period at the rate of interest that the Federal income tax regulations under Section 664 of the Code prescribe for the trust for such computation for such period; and (b) the annuity amounts payable, plus interest, compounded annually, computed for any period at the rate of interest that the Federal income tax regulations under Section 664 of the Code prescribe for the trust for such computation for such period. 2 D. In case of any taxable year of the trust during the trust term which is for a period of less than twelve months, the annuity amount for such year shall be prorated on a daily basis. E. The Trustees shall make payments under Paragraph A above aggregating the annuity amount annually. Any payment made during any taxable year of the trust, or treated (at the election of the Trustees pursuant to Section 642(c)(1) of the Code) for Federal income tax purposes as having been made during such year, in satisfaction of the annuity amount, shall first be made from the ordinary income (including short term capital gain) other than unrelated business income of the trust for such year, thereafter from capital gains of the trust for the year, thereafter from unrelated business income of such trust for the year, thereafter from tax-exempt income and, if and to the extent that such ordinary income, capital gains and unrelated business income and tax-exempt income shall be insufficient to pay the annuity amount, then from the principal of the trust. Any net income not required for the payment of the annuity amount shall be added to principal. F. 1. It is the Grantor's intention that the twenty-five (25) year annuity payable under this Indenture shall qualify as a deductible charitable interest under Section 2522(c)(2)(B) of the Code and regulations thereunder and that the Grantor shall be entitled to a charitable deduction for Federal gift tax purposes for the full value, as of the date hereof, of such annuity. The Grantor therefore directs that all provisions of this Indenture shall be interpreted and construed so as to give effect to such intention and that the Trustees shall pay all payments on account of the annuity amount at such times and in such amounts and shall also otherwise administer the trust in such manner as may be required to qualify such annuity for the aforesaid charitable deduction. If such Section or regulations, or any successor Section or regulations, or any ruling, notice 3 or other administrative pronouncement issued thereunder, at any time requires that an instrument creating a "guaranteed annuity interest" within the meaning of Section 2522(c)(2)(B) of the Code and the regulations promulgated thereunder must contain provisions that are not expressly set forth herein, such provisions shall be incorporated into this Indenture of Trust by reference and shall be deemed to be a part of this Indenture of Trust to the same extent as though they had been expressly set forth herein. The Trustees shall have the power, acting by majority, to amend the Trust created hereunder in any manner required for the sole purpose of ensuring that the annuity amount payable under Article FIRST hereof qualifies as a "guaranteed annuity interest" within the meaning of Section 2522(c)(2)(B) of the Code and the regulations promulgated thereunder. 2. If the effect of any provision of this Indenture would be to prevent the allowance of said charitable deduction for such annuity, then the Grantor directs that such offending provision shall not apply to the trust. 3. Anything to the contrary in this trust notwithstanding, during such time as the trust created hereunder shall be a trust described in Section 4947(a)(2) of the Code, the Trustees shall be prohibited from: (i) engaging in any act of "self-dealing," as defined in Section 4941(d) of the Code; (ii) retaining any "excess business holdings," as defined in Section 4943(c) of the Code; (iii) making any investments so as to subject the trust to tax under Section 4944 of the Code, or retaining any investments which would subject the trust to such tax if the Trustees had acquired such investments; and (iv) making any "taxable expenditures," as defined in Section 4945(d) of the Code. 4 4. References to Sections of the Code in this Indenture shall also be deemed to refer to corresponding provisions of any subsequent Federal tax law. 5. No additional contribution shall be made to the trust created hereunder. 6. Nothing contained in this Indenture shall be construed to restrict the Trustees from investing the assets of the trust in a manner which could result in the annual realization of a reasonable amount of income or gain from the sale or disposition of trust assets. G. The term "charitable organization" as used in this Indenture shall mean an organization organized and operated exclusively for religious, charitable, scientific, literary or educational purposes or for the prevention of cruelty to children or animals as described in Sections 170(c), 501(c)(3) and 2522(a) of the Code (or any corresponding provisions of the tax laws from time to time in effect), gifts to which are deductible for Federal income and gift tax purposes. SECOND Upon the termination of the Term, the trust estate then remaining (after making any payments required by Paragraph A of Article FIRST) shall be set aside and divided into such number of equal shares as shall make one share in respect of each of the Grantor's children from his marriage to Trudy Silverstein who is living on the date of this Indenture of Trust. The share set aside in respect of each such child shall be paid over and distributed to such person or persons (including such child, the estate of such child, his or her creditors and the creditors of his or her estate) in such amounts or proportions and upon such estates (whether in trust or otherwise) as such child shall appoint by instrument in writing, duly signed and acknowledged by him or her and delivered to a then acting Trustee (other than himself or herself) during his or 5 her lifetime, or in his or her Last Will and Testament, by specific reference to this Indenture of Trust. The Grantor directs that any portion or all of the share set aside with respect to such child remaining at the expiration of the Term that is not effectively appointed shall be paid over and distributed to such child, absolutely, or if he or she is not then living, to his or her then living issue, per stirpes, absolutely, and in default of such issue, to the then living issue of the Grantor from his marriage to Trudy Silverstein, per stirpes, or if none, to the then living issue of the Grantor, per stirpes, absolutely. THIRD A. 1. If TRUDY SILVERSTEIN and DENNIS McGILLICUDDY shall cease to act as trustees hereof, the following are appointed as successor Trustee, to take office, singly, in the order named: STEPHEN BLECHNER and JAMES B. SHEIN. 2. Upon attaining the age of majority, each of JACOB MICHAEL SILVERSTEIN and MOLLY T. HANNAH SILVERSTEIN shall be allowed to qualify as a co-Trustee to act contemporaneously with the then acting Trustees of the trust created hereunder. 3. The last to act of the Trustees (including substitutes and/or successors) herein named in respect of the trust hereunder and each of the successors appointed as herein provided, is authorized and empowered to appoint a successor Trustee, to take office upon such appointing Trustee ceasing to act hereunder. 4. The Grantor directs that such of JACOB MICHAEL SILVERSTEIN and MOLLY T. HANNAH SILVERSTEIN ("TRUDY's children") who have attained the age of majority and who are living, acting unanimously, or if only one TRUDY's children shall then be living and shall have attained the age of majority, such child 6 acting alone, are authorized and empowered, at any time and from time to time, (i) to appoint a successor Trustee or a series of successor Trustees to fill any vacancy that may then exist or thereafter arise in the office of Trustee hereunder, (ii) to increase the number of Trustees acting as Trustees of the trust created herein by appointing one or more additional co-Trustees, and (iii) to remove any Trustee, successor Trustee or co-Trustee, other than TRUDY SILVERSTEIN or DENNIS McGILLICUDDY, at any time acting hereunder, PROVIDED, HOWEVER, that if JACOB MICHAEL SILVERSTEIN or MOLLY T. HANNAH SILVERSTEIN shall be acting as a Trustee of the trust created herein, he or she shall not vote for the appointment of a person who is a "related or subordinate party" within the meaning of Section 672(c) of the Code or any successor provisions thereto with respect to himself or herself. B. Any appointment of a successor Trustee or successor Trustees pursuant to Paragraph A hereof shall be made by instrument in writing, duly signed and acknowledged, and may from time to time prior to the qualification of the person or persons therein designated, be revoked or amended by the person making such appointment, similarly executed and acknowledged. C. In no event shall the Grantor, or any other person who has made a contribution to the trust created hereunder, be appointed as a successor Trustee hereunder. D. The term "Trustees" wherever used herein, shall be taken to mean the Trustees for the time being in office; and except as otherwise provided in this Article THIRD, each such Trustee shall have the same rights, powers, duties, authority and privileges, whether or not discretionary, as if originally appointed hereunder. 7 E. No Trustee acting hereunder, whether named herein or appointed pursuant hereto, shall be required to post any bond or other security for the faithful performance of his or her duties hereunder. FOURTH A. The Trustees named herein hereby assume the trust created by this Indenture of Trust and undertake to carry out each and every provision hereof. B. Any successor Trustee hereunder shall qualify by executing an instrument in writing, duly signed and acknowledged, expressly agreeing to assume the trust created by this Indenture of Trust and to carry out each and every provision thereof. C. No Trustee acting hereunder shall incur any liability for any act done or omitted in the exercise of his or her duties as Trustee in good faith. FIFTH A. Any Trustee acting hereunder, at any time, may resign his or her office as Trustee by written declaration duly signed by him or her and delivered to the successor Trustee designated to succeed such Trustee and to his or her co-Trustees, if any. Such resignation shall become effective upon the date specified therein. B. Any Trustee at any time acting hereunder, any resigned Trustee, and the executor or administrator of the estate of any deceased Trustee, at any time and from time to time, may render an account of the acts and transactions of such Trustee with respect to the income and principal of the trust created hereunder (from the date of the creation of such trust or from the date of the last previous account of the Trustee, as the case may be) to The William James Foundation, Inc. and to the Grantor's then living children of his marriage to Trudy Silverstein, or if none, to the Grantor's then living descendants of his marriage to Trudy Silverstein, or if none, to the Grantor's then living 8 descendants; PROVIDED, HOWEVER, that if any such person to whom an account may be rendered shall be a minor, any such account may instead be rendered to such person's parent or legal guardian other than the Grantor or any Trustee hereunder. The persons hereinabove described shall have full power and authority, on behalf of all persons who may at any time be interested in such trust, finally to settle and adjust such account; and upon such account being settled and adjusted, it shall be final and conclusive upon each and every person (whether then living or then ascertainable or not) who shall then or thereafter be or become interested in either the income or the principal of such trust, with like effect as a judgment of a court having jurisdiction, judicially settling such account in an action in which the Trustee and all persons having or claiming to have an interest in the trust were parties. Nothing contained in the foregoing paragraph shall be deemed to preclude a Trustee from having his account judicially settled if such Trustee shall deem this advisable. C. In any proceeding in which all persons interested in the trust hereunder are required to be served with process, and in which a party to the proceeding has the same interest as a person under a disability, it shall not be necessary to serve the person under a disability, it being the Grantor's intention hereof to avoid the appointment of a guardian ad litem, whenever possible. SIXTH The Trustees are authorized, in their discretion and notwithstanding the foregoing provisions of this Indenture of Trust: A. In any case in which they are authorized or required to pay or distribute income or principal to any person who is a minor, to apply the whole or part of such income or principal, in their absolute discretion, to the minor's use in any one or more of the following ways: 9 1. By depositing the same in a savings account in the minor's name with any bank or trust company; 2. By distributing the same to any person (other than a person who has made a contribution to the trust), including a person acting as Trustee hereunder, (i) as Custodian for such minor under any Uniform Gifts to Minors Act or Uniform Transfers to Minors Act authorizing such payment; (ii) with whom the minor shall at the time reside; or (iii) then having the care or control of such minor; 3. By paying the same to such minor or to any other person (other than a person who has made a contribution to the trust), firm or corporation (other than a firm or corporation controlled by a person who has made a contribution to the trust) for the account and benefit of such minor. The Trustees, in any of the above cases, shall be under no obligation to look to the proper application of any such payment or distribution by the person receiving it. Any payment hereinabove authorized shall be a full discharge to the Trustees with respect thereto. If the Trustees make a distribution to a custodian under Subparagraph 2 above, they are authorized to make any election or designation concerning the age at which the minor is to receive the property that may be made under any applicable Uniform Gifts to Minors Act or Uniform Transfers to Minors Act. B. To defer, in whole or in part, payment or distribution of any property vesting absolutely in a minor hereunder, until such minor shall have attained majority; to expend the same or any part thereof, and the income therefrom, for the benefit of such minor in any manner hereinabove authorized in Paragraph A 10 hereof, holding the whole or the undistributed portion thereof, and the income thereon, as a separate and distinct share for such minor, absolutely; and to transfer, pay over and deliver any remaining principal and income held hereunder to the minor when he or she attains majority, or to the estate of such minor if he or she dies prior to attaining majority. C. For purposes of this Indenture of Trust, a "minor" shall be deemed to be a person under the age of twenty-one years and "majority" shall be deemed to be the age of twenty-one years. SEVENTH A. Subject to Paragraph F of Article FIRST hereof, the Trustees shall have, with respect to any and all property at any time held by them hereunder (including property held for the benefit of minors under Article SIXTH hereof) the following powers, in addition to those conferred by law: 1. To retain any such property as an investment without regard to the proportion which such property, or property of a similar character, may bear to the entire amount of the trust estate, whether or not such property is of the class in which trustees are authorized by law or any rule of court to invest trust funds. 2. To sell any such property at either public or private sale, for cash or on credit, and to exchange such property. 3. To grant options for the purchase of any such property, upon any terms and conditions, for any period or periods of time, even if the period during which any such option shall be exercisable shall extend beyond the probable duration of the trust hereunder. 11 4. To invest and reinvest in property of any character, real or personal, foreign or domestic, including, but without limiting the generality of the foregoing, to acquire both short and long positions, in cash or on margin, in bonds, notes, debentures, mortgages, common and preferred stock (irrespective of whether there shall be a public market therefor), shares or interests in investment trusts, general and limited partnership interests, and interests in limited liability companies without being limited to the class of securities in which trustees are authorized by law or any rule of court to invest trust funds and without regard to the proportion which any such property or property of a similar character held by the Trustees may bear to the entire amount of the Trust estate or the speculative or unproductive nature of any such investment or investments, and the Trustees shall be fully protected in respect of any such investment made by them in good faith. 5. To borrow money and give indemnities and guaranties for any purpose in connection with the administration of the trust created hereunder, to continue or renew any loan made to the Trustees and in connection therewith to mortgage, pledge or otherwise encumber any property forming part of the trust upon any terms and conditions, in any amounts, and for any period of time, even if for longer than the probable duration of the trust. 6. To lend any part of the trust, with or without security, in any amount, upon any terms and conditions, at any reasonable rate of interest, for any period or periods of time even if longer than the probable duration of the trust, and to any person, firm or corporation other than the Grantor or the Grantor's spouse or a firm or corporation owned or controlled by the Grantor and/or the Grantor's spouse. 7. To manage any real property held by the Trustees hereunder in the same manner as if the Trustees were the absolute owners thereof, including, without limitation, to lease, or grant options to lease, any such real property for any term or terms, although in excess of any period permitted by statute or other rule of law (and although any such term may extend beyond the period of administration of any trust hereunder), without application to any court. 12 8. To vote on any securities forming part of any trust by discretionary proxy or otherwise; to join in or oppose any reorganization, recapitalization, sale, lease, merger, exchange or consolidation; to exercise conversion, subscription or other rights, or to sell or abandon such rights; to receive and hold any securities issued as a result of any of the foregoing transactions; and generally to take all action in respect of any such securities as the Trustees might or could do as the absolute owners thereof. 9. To deposit any securities with voting trustees or protective or similar committees, to delegate to them discretionary powers, to pay a share of their expense and compensation, and to charge the same to principal or income as the Trustees may see fit. 10. To cause any stocks, bonds, securities, cash or other property at any time held by the Trustees to be registered in the name of a nominee or nominees. 11. To compromise, settle or arbitrate any claim in favor of or against the trust hereunder. 12. To determine whether, and, if so, to what extent, premiums on investments shall be amortized. 13. To make any distribution hereunder, in whole or in part, in securities or other property comprising the principal of the trust at the time of such distribution, and in making such distribution the Trustees shall not be required to prorate any item of property so distributed among the persons entitled to such distribution, but shall be authorized and empowered to distribute different items of property to the distributees. 13 14. To maintain on behalf of the trust hereunder one or more custody accounts with any bank, trust company or brokerage firm wherever located, and to retain investment counsel, investment advisers, accountants and attorneys (including any firm of investment counsel, investment advisers, accountants or attorneys with which the Trustees from time to time acting hereunder shall be associated or otherwise connected) and to charge the cost thereof to the principal or income of such trust as the Trustees may deem appropriate. 15. To delegate any or all of the powers and authorities hereinbefore conferred upon Trustees in Subparagraphs 1, 2 and 4 hereof, at any time and from time to time, with respect to all or any portion of the property held hereunder, to any one or more individual or institutional investment advisers or investment managers for any period or periods and upon such terms, conditions and for such compensation as the Trustees shall in their sole and unreviewable discretion deem appropriate, it being expressly provided that the Trustees shall have no responsibility or liability for any loss to the trust hereunder by reason of any action taken or omitted to be taken as a result of such delegation. 16. To allocate and credit to income so much or all of any distribution made by a regulated investment company or mutual fund that is designated a "dividend" by such company or mutual fund, even though paid from short-term capital gain or any source other than ordinary income. 17. To determine whether any dividend, other than an ordinary cash dividend, declared and paid upon any securities held by the Trustees, whether payable in cash, in stock (issued by the corporation declaring the same or by any other corporation), in bonds, or otherwise, shall be treated as and allocable to principal or income, or partly to principal and partly to income, and the Trustees shall not be required to treat any particular dividend in the 14 same manner as previous dividends upon the same or other securities, or to make any determination on the basis of whether any particular dividend represents in whole or in part a distribution of earnings or surplus regardless of when earned or created. This provision shall be in lieu of any statute or applicable rule of law now or hereafter in effect in the State of Florida. 18. To exercise any other or further authority or discretion not hereinabove specifically granted as may from time to time be permitted by applicable statutes or rules of law, it being the Grantor's intention that the foregoing powers shall be in addition to and shall not be deemed a limitation upon such authority and discretion as the Trustees would have but for such provisions. B. Persons dealing with the Trustees shall not be bound to see to the application of any moneys paid to the Trustees pursuant to their exercise of any of the foregoing powers. EIGHTH Whenever necessary or appropriate, the use herein of any gender shall be deemed to include the other gender and the use herein of either the singular or the plural shall be deemed to include the other. NINTH The trust hereby created shall be irrevocable, and neither the Grantor nor, except as expressly provided in Subparagraph 1 of Paragraph F of Article FIRST, any Trustee at any time acting hereunder shall have the right to change, alter or amend any of the provisions thereof. 15 TENTH The trust created hereunder shall be deemed to be a Florida trust and shall be governed and construed in all respects by and in accordance with the laws of the State of Florida. The Trustees, however, are prohibited from exercising any power or discretion granted under said laws that would be inconsistent with the qualification of the annuity amount payable under Article FIRST hereof as a "guaranteed annuity interest" under Section 2522(c)(2)(B) of the Code and the corresponding regulations. 16 IN WITNESS WHEREOF, the Grantor signs, seals, publishes, and declares this instrument to be an Irrevocable Trust Agreement and, for purpose of identification, the Grantor has signed his initials on each page other than the signature page, and the Grantor has signed his name, in the presence of the persons witnessing this Trust Agreement, at the Grantor's request, on the day and year first above written. /s/ Jeffrey R. McCurdy /s/ Barry Silverstein - ----------------------------- ----------------------------- Witness BARRY SILVERSTEIN /s/ Randy Arnaud - ----------------------------- Witness ACCEPTANCE BY TRUSTEES /s/ Trudy Silverstein ----------------------------- TRUDY SILVERSTEIN /s/ Dennis McGillicuddy ----------------------------- DENNIS McGILLICUDDY 17 STATE OF FLORIDA ) ) SS: COUNY OF SARASOTA ) We, BARRY SILVERSTEIN, Jeffrey R. McCurdy and Randy Arnaud, the Grantor and the witnesses respectively, whose names are signed to the foregoing instrument, having been sworn, declared to the undersigned officer that the Grantor in the presence of witnesses signed the instrument as an Irrevocable Trust Agreement, that the Grantor signed and that each of the witnesses, in the presence of the Grantor and in the presence of each other signed the Agreement as a witness. /s/ Barry Silverstein ---------------------- BARRY SILVERSTEIN /s/ Jeffrey R. McCurdy ---------------------- Witness /s/ Randy Arnaud ---------------------- Witness Subscribed and sworn to before me by BARRY SILVERSTEIN, the Grantor, who is personally known to me or who has produced _____________ as identification, and by Jeffrey R. McCurdy, a witness, who is personally known to me or who has produced ______________________ as identification, and by Randy Arnaud, a witness, who is personally known to me or who has produced _______________________ as identification, on this 17th day of September, 2003. /s/ Linnette A. Fauroat ----------------------- Notary Public [NOTARY SEAL] 18 STATE OF FLORIDA ) ) ss.: COUNTY OF SARASOTA ) The foregoing instrument was acknowledged before me this 17th day of September, 2003, by BARRY SILVERSTEIN , who is personally known to me or who has produced __________________________ as identification. /s/ Linnette A. Fauroat ----------------------- Name: Linnette A. Fauroat [NOTARY SEAL] STATE OF FLORIDA ) ) ss.: COUNTY OF SARASOTA ) The foregoing instrument was acknowledged before me this 17th day of September, 2003, by MARK SHALE SILVERSTEIN, who is personally known to me or who has produced __________________________ as identification. /s/ Linnette A. Fauroat ----------------------- Name: Linnette A. Fauroat [NOTARY SEAL] STATE OF FLORIDA ) ) ss.: COUNTY OF SARASOTA ) The foregoing instrument was acknowledged before me this 22 day of September, 2003, by DENNIS McGILLICUDDY, who is personally known to me or who has produced __________________________ as identification. /s/ Christen Flenard ----------------------- Name: Christen Flenard [NOTARY SEAL] EX-9 9 ex-9.txt Exhibit 9 INDENTURE OF TRUST made as of the 17th day of September, 2003, by and between BARRY SILVERSTEIN, as Grantor, and MARK SHALE SILVERSTEIN and DENNIS McGILLICUDDY, as Trustees. W I T N E S S E T H : The Grantor hereby transfers, assigns and delivers to the Trustees the property described in Schedule A annexed hereto (and the Trustees hereby acknowledges receipt of such property), to hold the same, IN TRUST, to invest and reinvest, to collect the rents, income and profits thereof, and to dispose of the same upon the terms hereinafter set forth. The trust created herein shall be known as the "MARK S. SILVERSTEIN 2003 CLAT." FIRST A. In each year of the "trust term" (as hereinafter defined), the Trustees shall make payments aggregating the "annuity amount" (as hereinafter defined) to The William James Foundation, Inc. (or, if The William James Foundation, Inc. shall not be a "charitable organization" (as defined in Paragraph G below) at the time of any payment hereunder, to such one or more charitable organizations in such amounts or proportions, as the Trustees shall, in their sole and unreviewable discretion, select and determine). B. The "trust term" shall mean the eighteen (18) year period commencing on the date hereof. C. The term "annuity amount" shall be such amount which shall be required to generate a Federal gift tax charitable deduction equal to the value of the initial net fair market value of the principal of such trust as finally determined for Federal gift tax purposes, for the annuity which is to be paid pursuant to the terms of Paragraph A above, as calculated using (a) the lowest Applicable Federal Rate promulgated by the Treasury Department for valuing annuities which the Trustees may elect to use under Section 7520(a) of the Internal Revenue Code of 1986, as amended (hereinafter referred to as the "Code"), and (b) the procedures promulgated by the Treasury Department for valuing annuities. In determining such initial net fair market value, the assets of such trust shall be valued at the values finally determined therefor for Federal estate tax purposes. If the initial net fair market value of the property contributed to the trust created hereunder is incorrectly determined, then, within a reasonable period after such net fair market value is finally determined, the Trustees shall (in the case of an undervaluation) pay to or shall (in the case of an overvaluation) receive from The William James Foundation, Inc. and/or the charitable organization or charitable organizations, as the case may be, as shall have received an incorrectly determined annuity amount, and if more than one, in the proportions in which they shall have shared in such incorrectly determined annuity amount, an amount equal to the difference between: (a) any annuity amounts actually paid, plus interest, compounded annually, computed for any period at the rate of interest that the Federal income tax regulations under Section 664 of the Code prescribe for the trust for such computation for such period; and (b) the annuity amounts payable, plus interest, compounded annually, computed for any period at the rate of interest that the Federal income tax regulations under Section 664 of the Code prescribe for the trust for such computation for such period. 2 D. In case of any taxable year of the trust during the trust term which is for a period of less than twelve months, the annuity amount for such year shall be prorated on a daily basis. E. The Trustees shall make payments under Paragraph A above aggregating the annuity amount annually. Any payment made during any taxable year of the trust, or treated (at the election of the Trustees pursuant to Section 642(c)(1) of the Code) for Federal income tax purposes as having been made during such year, in satisfaction of the annuity amount, shall first be made from the ordinary income (including short term capital gain) other than unrelated business income of the trust for such year, thereafter from capital gains of the trust for the year, thereafter from unrelated business income of such trust for the year, thereafter from tax-exempt income and, if and to the extent that such ordinary income, capital gains and unrelated business income and tax-exempt income shall be insufficient to pay the annuity amount, then from the principal of the trust. Any net income not required for the payment of the annuity amount shall be added to principal. F. 1. It is the Grantor's intention that the eighteen (18) year annuity payable under this Indenture shall qualify as a deductible charitable interest under Section 2522(c)(2)(B) of the Code and regulations thereunder and that the Grantor shall be entitled to a charitable deduction for Federal gift tax purposes for the full value, as of the date hereof, of such annuity. The Grantor therefore directs that all provisions of this Indenture shall be interpreted and construed so as to give effect to such intention and that the Trustees shall pay all payments on account of the annuity amount at such times and in such amounts and shall also otherwise administer the trust in such manner as may be required to qualify such annuity for the aforesaid charitable deduction. If such Section or regulations, or any successor Section or regulations, or any ruling, notice 3 or other administrative pronouncement issued thereunder, at any time requires that an instrument creating a "guaranteed annuity interest" within the meaning of Section 2522(c)(2)(B) of the Code and the regulations promulgated thereunder must contain provisions that are not expressly set forth herein, such provisions shall be incorporated into this Indenture of Trust by reference and shall be deemed to be a part of this Indenture of Trust to the same extent as though they had been expressly set forth herein. The Trustees shall have the power, acting by majority, to amend the Trust created hereunder in any manner required for the sole purpose of ensuring that the annuity amount payable under Article FIRST hereof qualifies as a "guaranteed annuity interest" within the meaning of Section 2522(c)(2)(B) of the Code and the regulations promulgated thereunder. 2. If the effect of any provision of this Indenture would be to prevent the allowance of said charitable deduction for such annuity, then the Grantor directs that such offending provision shall not apply to the trust. 3. Anything to the contrary in this trust notwithstanding, during such time as the trust created hereunder shall be a trust described in Section 4947(a)(2) of the Code, the Trustees shall be prohibited from: (i) engaging in any act of "self-dealing," as defined in Section 4941(d) of the Code; (ii) retaining any "excess business holdings," as defined in Section 4943(c) of the Code; (iii) making any investments so as to subject the trust to tax under Section 4944 of the Code, or retaining any investments which would subject the trust to such tax if the Trustees had acquired such investments; and (iv) making any "taxable expenditures," as defined in Section 4945(d) of the Code. 4 4. References to Sections of the Code in this Indenture shall also be deemed to refer to corresponding provisions of any subsequent Federal tax law. 5. No additional contribution shall be made to the trust created hereunder. 6. Nothing contained in this Indenture shall be construed to restrict the Trustees from investing the assets of the trust in a manner which could result in the annual realization of a reasonable amount of income or gain from the sale or disposition of trust assets. G. The term "charitable organization" as used in this Indenture shall mean an organization organized and operated exclusively for religious, charitable, scientific, literary or educational purposes or for the prevention of cruelty to children or animals as described in Sections 170(c), 501(c)(3) and 2522(a) of the Code (or any corresponding provisions of the tax laws from time to time in effect), gifts to which are deductible for Federal income and gift tax purposes. SECOND Upon the termination of the Term, the trust estate then remaining (after making any payments required by Paragraph A of Article FIRST) shall be paid over and distributed to such person or persons (including MARK SHALE SILVERSTEIN, the estate of MARK SHALE SILVERSTEIN, his creditors and the creditors of his estate) in such amounts or proportions and upon such estates (whether in trust or otherwise) as MARK SHALE SILVERSTEIN shall appoint by instrument in writing, duly signed and acknowledged by him and delivered to a then acting Trustee (other than himself) during his lifetime, or in his Last Will and Testament, by specific reference to this Indenture of Trust. The Grantor directs that any portion or all of the trust estate that is not effectively appointed shall be paid over and distributed to MARK SHALE 5 SILVERSTEIN, absolutely, or if he is not then living, to his then living issue, per stirpes, absolutely, and in default of such issue, to the then living issue of the Grantor from his marriage to Lois Silverstein, per stirpes, or if none, to the then living issue of the Grantor, per stirpes, absolutely. THIRD A. 1. If DENNIS McGILLICUDDY shall cease to act as a trustee hereof, the following are appointed as successor Trustees, to take office, singly, in the order named: STEPHEN BLECHNER and JAMES B. SHEIN. 2. The last to act of the Trustees (including substitutes and/or successors) herein named in respect of the trust hereunder and each of the successors appointed as herein provided, is authorized and empowered to appoint a successor Trustee, to take office upon such appointing Trustee ceasing to act hereunder. 3. The Grantor directs that any two of MARK SHALE SILVERSTEIN, SUSAN SILVERSTEIN POTTER and THOMAS BENJAMIN SILVERSTEIN, or if only one of them shall then be living and competent, such one, acting alone, are authorized and empowered, at any time and from time to time, (i) to appoint a successor Trustee or a series of successor Trustees to fill any vacancy that may then exist or thereafter arise in the office of Trustee hereunder, (ii) to increase the number of Trustees acting as Trustees of the trust created herein by appointing one or more additional co-Trustees, and (iii) to remove any Trustee, successor Trustee or co-Trustee, other than MARK SHALE SILVERSTEIN or DENNIS McGILLICUDDY, at any time acting hereunder, PROVIDED, HOWEVER, that if MARK SHALE SILVERSTEIN shall be acting as a Trustee of the trust created herein, he shall not vote for the appointment of a person who is a "related or subordinate party" within the meaning of Section 672(c) of the Code or any successor provisions thereto with respect to himself. 6 B. Any appointment of a successor Trustee or successor Trustees pursuant to Paragraph A hereof shall be made by instrument in writing, duly signed and acknowledged, and may from time to time prior to the qualification of the person or persons therein designated, be revoked or amended by the person making such appointment, similarly executed and acknowledged. C. In no event shall the Grantor, or any other person who has made a contribution to the trust created hereunder, be appointed as a successor Trustee hereunder. D. The term "Trustees" wherever used herein, shall be taken to mean the Trustees for the time being in office; and except as otherwise provided in this Article THIRD, each such Trustee shall have the same rights, powers, duties, authority and privileges, whether or not discretionary, as if originally appointed hereunder. E. No Trustee acting hereunder, whether named herein or appointed pursuant hereto, shall be required to post any bond or other security for the faithful performance of his or her duties hereunder. FOURTH A. The Trustees named herein hereby assume the trust created by this Indenture of Trust and undertake to carry out each and every provision hereof. B. Any successor Trustee hereunder shall qualify by executing an instrument in writing, duly signed and acknowledged, expressly agreeing to assume the trust created by this Indenture of Trust and to carry out each and every provision thereof. 7 C. No Trustee acting hereunder shall incur any liability for any act done or omitted in the exercise of his or her duties as Trustee in good faith. FIFTH A. Any Trustee acting hereunder, at any time, may resign his or her office as Trustee by written declaration duly signed by him or her and delivered to the successor Trustee designated to succeed such Trustee and to his or her co-Trustees, if any. Such resignation shall become effective upon the date specified therein. B. Any Trustee at any time acting hereunder, any resigned Trustee, and the executor or administrator of the estate of any deceased Trustee, at any time and from time to time, may render an account of the acts and transactions of such Trustee with respect to the income and principal of the trust created hereunder (from the date of the creation of such trust or from the date of the last previous account of the Trustee, as the case may be) to The William James Foundation, Inc. and to Mark Shale Silverstein, or if Mark Shale Silverstein shall not then be living, to the then living issue of Mark Shale Silverstein, or if none, to the Grantor's then living children of his marriage to Lois Silverstein, or if none, to the Grantor's then living descendants of his marriage to Lois Silverstein, or if none, to the Grantor's then living issue; PROVIDED, HOWEVER, that if any such person to whom an account may be rendered shall be a minor, any such account may instead be rendered to such person's parent or legal guardian other than the Grantor or any Trustee hereunder. The persons hereinabove described shall have full power and authority, on behalf of all persons who may at any time be interested in such trust, finally to settle and adjust such account; and upon such account being settled and adjusted, it shall be final and conclusive upon each and every person (whether then living or then ascertainable or not) who shall then or thereafter be or become interested in either the income or the principal of such trust, with like effect as a 8 judgment of a court having jurisdiction, judicially settling such account in an action in which the Trustee and all persons having or claiming to have an interest in the trust were parties. Nothing contained in the foregoing paragraph shall be deemed to preclude a Trustee from having his account judicially settled if such Trustee shall deem this advisable. C. In any proceeding in which all persons interested in the trust hereunder are required to be served with process, and in which a party to the proceeding has the same interest as a person under a disability, it shall not be necessary to serve the person under a disability, it being the Grantor's intention hereof to avoid the appointment of a guardian ad litem, whenever possible. SIXTH The Trustees are authorized, in their discretion and notwithstanding the foregoing provisions of this Indenture of Trust: A. In any case in which they are authorized or required to pay or distribute income or principal to any person who is a minor, to apply the whole or part of such income or principal, in their absolute discretion, to the minor's use in any one or more of the following ways: 1. By depositing the same in a savings account in the minor's name with any bank or trust company; 2. By distributing the same to any person (other than a person who has made a contribution to the trust), including a person acting as Trustee hereunder, (i) as Custodian for such minor under any Uniform Gifts to Minors Act or Uniform Transfers to Minors Act authorizing such payment; (ii) with whom the minor shall at the time reside; or (iii) then having the care or control of such minor; 9 3. By paying the same to such minor or to any other person (other than a person who has made a contribution to the trust), firm or corporation (other than a firm or corporation controlled by a person who has made a contribution to the trust) for the account and benefit of such minor. The Trustees, in any of the above cases, shall be under no obligation to look to the proper application of any such payment or distribution by the person receiving it. Any payment hereinabove authorized shall be a full discharge to the Trustees with respect thereto. If the Trustees make a distribution to a custodian under Subparagraph 2 above, they are authorized to make any election or designation concerning the age at which the minor is to receive the property that may be made under any applicable Uniform Gifts to Minors Act or Uniform Transfers to Minors Act. B. To defer, in whole or in part, payment or distribution of any property vesting absolutely in a minor hereunder, until such minor shall have attained majority; to expend the same or any part thereof, and the income therefrom, for the benefit of such minor in any manner hereinabove authorized in Paragraph A hereof, holding the whole or the undistributed portion thereof, and the income thereon, as a separate and distinct share for such minor, absolutely; and to transfer, pay over and deliver any remaining principal and income held hereunder to the minor when he or she attains majority, or to the estate of such minor if he or she dies prior to attaining majority. 10 C. For purposes of this Indenture of Trust, a "minor" shall be deemed to be a person under the age of twenty-one years and "majority" shall be deemed to be the age of twenty-one years. SEVENTH A. Subject to Paragraph F of Article FIRST hereof, the Trustees shall have, with respect to any and all property at any time held by them hereunder (including property held for the benefit of minors under Article SIXTH hereof) the following powers, in addition to those conferred by law: 1. To retain any such property as an investment without regard to the proportion which such property, or property of a similar character, may bear to the entire amount of the trust estate, whether or not such property is of the class in which trustees are authorized by law or any rule of court to invest trust funds. 2. To sell any such property at either public or private sale, for cash or on credit, and to exchange such property. 3. To grant options for the purchase of any such property, upon any terms and conditions, for any period or periods of time, even if the period during which any such option shall be exercisable shall extend beyond the probable duration of the trust hereunder. 4. To invest and reinvest in property of any character, real or personal, foreign or domestic, including, but without limiting the generality of the foregoing, to acquire both short and long positions, in cash or on margin, in bonds, notes, debentures, mortgages, common and preferred stock (irrespective of whether there shall be a public market therefor), shares or interests in investment trusts, general and limited partnership interests, and interests in limited liability companies without being limited to the class of securities in which trustees are authorized by law or any rule of court to invest trust funds 11 and without regard to the proportion which any such property or property of a similar character held by the Trustees may bear to the entire amount of the Trust estate or the speculative or unproductive nature of any such investment or investments, and the Trustees shall be fully protected in respect of any such investment made by them in good faith. 5. To borrow money and give indemnities and guaranties for any purpose in connection with the administration of the trust created hereunder, to continue or renew any loan made to the Trustees and in connection therewith to mortgage, pledge or otherwise encumber any property forming part of the trust upon any terms and conditions, in any amounts, and for any period of time, even if for longer than the probable duration of the trust. 6. To lend any part of the trust, with or without security, in any amount, upon any terms and conditions, at any reasonable rate of interest, for any period or periods of time even if longer than the probable duration of the trust, and to any person, firm or corporation other than the Grantor or the Grantor's spouse or a firm or corporation owned or controlled by the Grantor and/or the Grantor's spouse. 7. To manage any real property held by the Trustees hereunder in the same manner as if the Trustees were the absolute owners thereof, including, without limitation, to lease, or grant options to lease, any such real property for any term or terms, although in excess of any period permitted by statute or other rule of law (and although any such term may extend beyond the period of administration of any trust hereunder), without application to any court. 8. To vote on any securities forming part of any trust by discretionary proxy or otherwise; to join in or oppose any reorganization, recapitalization, sale, lease, merger, exchange or consolidation; to exercise conversion, subscription or other rights, or to sell or abandon such rights; to 12 receive and hold any securities issued as a result of any of the foregoing transactions; and generally to take all action in respect of any such securities as the Trustees might or could do as the absolute owners thereof. 9. To deposit any securities with voting trustees or protective or similar committees, to delegate to them discretionary powers, to pay a share of their expense and compensation, and to charge the same to principal or income as the Trustees may see fit. 10. To cause any stocks, bonds, securities, cash or other property at any time held by the Trustees to be registered in the name of a nominee or nominees. 11. To compromise, settle or arbitrate any claim in favor of or against the trust hereunder. 12. To determine whether, and, if so, to what extent, premiums on investments shall be amortized. 13. To make any distribution hereunder, in whole or in part, in securities or other property comprising the principal of the trust at the time of such distribution, and in making such distribution the Trustees shall not be required to prorate any item of property so distributed among the persons entitled to such distribution, but shall be authorized and empowered to distribute different items of property to the distributees. 14. To maintain on behalf of the trust hereunder one or more custody accounts with any bank, trust company or brokerage firm wherever located, and to retain investment counsel, investment advisers, accountants and attorneys (including any firm of investment counsel, investment advisers, accountants or attorneys with which the Trustees from time to time acting hereunder shall be associated or otherwise connected) and to charge the cost thereof to the principal or income of such trust as the Trustees may deem appropriate. 13 15. To delegate any or all of the powers and authorities hereinbefore conferred upon Trustees in Subparagraphs 1, 2 and 4 hereof, at any time and from time to time, with respect to all or any portion of the property held hereunder, to any one or more individual or institutional investment advisers or investment managers for any period or periods and upon such terms, conditions and for such compensation as the Trustees shall in their sole and unreviewable discretion deem appropriate, it being expressly provided that the Trustees shall have no responsibility or liability for any loss to the trust hereunder by reason of any action taken or omitted to be taken as a result of such delegation. 16. To allocate and credit to income so much or all of any distribution made by a regulated investment company or mutual fund that is designated a "dividend" by such company or mutual fund, even though paid from short-term capital gain or any source other than ordinary income. 17. To determine whether any dividend, other than an ordinary cash dividend, declared and paid upon any securities held by the Trustees, whether payable in cash, in stock (issued by the corporation declaring the same or by any other corporation), in bonds, or otherwise, shall be treated as and allocable to principal or income, or partly to principal and partly to income, and the Trustees shall not be required to treat any particular dividend in the same manner as previous dividends upon the same or other securities, or to make any determination on the basis of whether any particular dividend represents in whole or in part a distribution of earnings or surplus regardless of when earned or created. This provision shall be in lieu of any statute or applicable rule of law now or hereafter in effect in the State of Florida. 14 18. To exercise any other or further authority or discretion not hereinabove specifically granted as may from time to time be permitted by applicable statutes or rules of law, it being the Grantor's intention that the foregoing powers shall be in addition to and shall not be deemed a limitation upon such authority and discretion as the Trustees would have but for such provisions. B. Persons dealing with the Trustees shall not be bound to see to the application of any moneys paid to the Trustees pursuant to their exercise of any of the foregoing powers. EIGHTH Whenever necessary or appropriate, the use herein of any gender shall be deemed to include the other gender and the use herein of either the singular or the plural shall be deemed to include the other. NINTH The trust hereby created shall be irrevocable, and neither the Grantor nor, except as expressly provided in Subparagraph 1 of Paragraph F of Article FIRST, any Trustee at any time acting hereunder shall have the right to change, alter or amend any of the provisions thereof. TENTH The trust created hereunder shall be deemed to be a Florida trust and shall be governed and construed in all respects by and in accordance with the laws of the State of Florida. The Trustees, however, is prohibited from exercising any power or discretion granted under said laws that would be inconsistent with the qualification of the annuity amount payable under Article FIRST hereof as a "guaranteed annuity interest" under Section 2522(c)(2)(B) of the Code and the corresponding regulations. 15 IN WITNESS WHEREOF, the Grantor signs, seals, publishes, and declares this instrument to be an Irrevocable Trust Agreement and, for purpose of identification, the Grantor has signed his initials on each page other than the signature page, and the Grantor has signed his name, in the presence of the persons witnessing this Trust Agreement, at the Grantor's request, on the day and year first above written. /s/ Jeffrey R. McCurdy /s/ Barry Silverstein - ----------------------------- ----------------------------- Witness BARRY SILVERSTEIN /s/ Randy Arnaud - ----------------------------- Witness ACCEPTANCE BY TRUSTEES /s/ Mark Shale Silverstein ----------------------------- MARK SHALE SILVERSTEIN /s/ Dennis McGillicuddy ----------------------------- DENNIS McGILLICUDDY 16 STATE OF FLORIDA ) ) SS: COUNY OF SARASOTA ) We, BARRY SILVERSTEIN, Jeffrey R. McCurdy and Randy Arnaud, the Grantor and the witnesses respectively, whose names are signed to the foregoing instrument, having been sworn, declared to the undersigned officer that the Grantor in the presence of witnesses signed the instrument as an Irrevocable Trust Agreement, that the Grantor signed and that each of the witnesses, in the presence of the Grantor and in the presence of each other signed the Agreement as a witness. /s/ Barry Silverstein ---------------------- BARRY SILVERSTEIN /s/ Jeffrey R. McCurdy ---------------------- Witness /s/ Randy Arnaud ---------------------- Witness Subscribed and sworn to before me by BARRY SILVERSTEIN, the Grantor, who is personally known to me or who has produced _____________ as identification, and by Jeffrey R. McCurdy, a witness, who is personally known to me or who has produced ______________________ as identification, and by Randy Arnaud, a witness, who is personally known to me or who has produced _______________________ as identification, on this 17th day of September, 2003. /s/ Linnette A. Fauroat ----------------------- Notary Public [NOTARY SEAL] 17 STATE OF FLORIDA ) ) ss.: COUNTY OF SARASOTA ) The foregoing instrument was acknowledged before me this 17th day of September, 2003, by BARRY SILVERSTEIN , who is personally known to me or who has produced __________________________ as identification. /s/ Linnette A. Fauroat ----------------------- Name: Linnette A. Fauroat [NOTARY SEAL] STATE OF ENGLAND ) ) ss.: CITY OF LONDON ) The foregoing instrument was acknowledged before me this 2nd day of October, 2003, by MARK SHALE SILVERSTEIN, who is personally known to me or who has produced US Passport 700913975 as identification. /s/ Barrington William Hooke ----------------------- Name: BARRINGTON WILLIAM HOOKE NOTARY PUBLIC, LONDON [NOTARY SEAL] STATE OF FLORIDA ) ) ss.: COUNTY OF SARASOTA ) The foregoing instrument was acknowledged before me this 22 day of September, 2003, by DENNIS McGILLICUDDY, who is personally known to me or who has produced __________________________ as identification. /s/ Christen Flenard ----------------------- Name: Christen Flenard [NOTARY SEAL] EX-10 10 ex-10.txt Exhibit 10 INDENTURE OF TRUST made as of the 17th day of September, 2003, by and between BARRY SILVERSTEIN, as Grantor, and MARK SHALE SILVERSTEIN and DENNIS McGILLICUDDY, as Trustees. W I T N E S S E T H : The Grantor hereby transfers, assigns and delivers to the Trustees the property described in Schedule A annexed hereto (and the Trustees hereby acknowledges receipt of such property), to hold the same, IN TRUST, to invest and reinvest, to collect the rents, income and profits thereof, and to dispose of the same upon the terms hereinafter set forth. The trust created herein shall be known as the "SUSAN S. POTTER 2003 CLAT." FIRST A. In each year of the "trust term" (as hereinafter defined), the Trustees shall make payments aggregating the "annuity amount" (as hereinafter defined) to The William James Foundation, Inc. (or, if The William James Foundation, Inc. shall not be a "charitable organization" (as defined in Paragraph G below) at the time of any payment hereunder, to such one or more charitable organizations in such amounts or proportions, as the Trustees shall, in their sole and unreviewable discretion, select and determine). B. The "trust term" shall mean the twenty (20) year period commencing on the date hereof. C. The term "annuity amount" shall be such amount which shall be required to generate a Federal gift tax charitable deduction equal to the value of the initial net fair market value of the principal of such trust as finally determined for Federal gift tax purposes, for the annuity which is to be paid pursuant to the terms of Paragraph A above, as calculated using (a) the lowest Applicable Federal Rate promulgated by the Treasury Department for valuing annuities which the Trustees may elect to use under Section 7520(a) of the Internal Revenue Code of 1986, as amended (hereinafter referred to as the "Code"), and (b) the procedures promulgated by the Treasury Department for valuing annuities. In determining such initial net fair market value, the assets of such trust shall be valued at the values finally determined therefor for Federal estate tax purposes. If the initial net fair market value of the property contributed to the trust created hereunder is incorrectly determined, then, within a reasonable period after such net fair market value is finally determined, the Trustees shall (in the case of an undervaluation) pay to or shall (in the case of an overvaluation) receive from The William James Foundation, Inc. and/or the charitable organization or charitable organizations, as the case may be, as shall have received an incorrectly determined annuity amount, and if more than one, in the proportions in which they shall have shared in such incorrectly determined annuity amount, an amount equal to the difference between: (a) any annuity amounts actually paid, plus interest, compounded annually, computed for any period at the rate of interest that the Federal income tax regulations under Section 664 of the Code prescribe for the trust for such computation for such period; and (b) the annuity amounts payable, plus interest, compounded annually, computed for any period at the rate of interest that the Federal income tax regulations under Section 664 of the Code prescribe for the trust for such computation for such period. 2 D. In case of any taxable year of the trust during the trust term which is for a period of less than twelve months, the annuity amount for such year shall be prorated on a daily basis. E. The Trustees shall make payments under Paragraph A above aggregating the annuity amount annually. Any payment made during any taxable year of the trust, or treated (at the election of the Trustees pursuant to Section 642(c)(1) of the Code) for Federal income tax purposes as having been made during such year, in satisfaction of the annuity amount, shall first be made from the ordinary income (including short term capital gain) other than unrelated business income of the trust for such year, thereafter from capital gains of the trust for the year, thereafter from unrelated business income of such trust for the year, thereafter from tax-exempt income and, if and to the extent that such ordinary income, capital gains and unrelated business income and tax-exempt income shall be insufficient to pay the annuity amount, then from the principal of the trust. Any net income not required for the payment of the annuity amount shall be added to principal. F. 1. It is the Grantor's intention that the twenty (20) year annuity payable under this Indenture shall qualify as a deductible charitable interest under Section 2522(c)(2)(B) of the Code and regulations thereunder and that the Grantor shall be entitled to a charitable deduction for Federal gift tax purposes for the full value, as of the date hereof, of such annuity. The Grantor therefore directs that all provisions of this Indenture shall be interpreted and construed so as to give effect to such intention and that the Trustees shall pay all payments on account of the annuity amount at such times and in such amounts and shall also otherwise administer the trust in such manner as may be required to qualify such annuity for the aforesaid charitable deduction. If such Section or regulations, or any successor Section or regulations, or any ruling, notice 3 or other administrative pronouncement issued thereunder, at any time requires that an instrument creating a "guaranteed annuity interest" within the meaning of Section 2522(c)(2)(B) of the Code and the regulations promulgated thereunder must contain provisions that are not expressly set forth herein, such provisions shall be incorporated into this Indenture of Trust by reference and shall be deemed to be a part of this Indenture of Trust to the same extent as though they had been expressly set forth herein. The Trustees shall have the power, acting by majority, to amend the Trust created hereunder in any manner required for the sole purpose of ensuring that the annuity amount payable under Article FIRST hereof qualifies as a "guaranteed annuity interest" within the meaning of Section 2522(c)(2)(B) of the Code and the regulations promulgated thereunder. 2. If the effect of any provision of this Indenture would be to prevent the allowance of said charitable deduction for such annuity, then the Grantor directs that such offending provision shall not apply to the trust. 3. Anything to the contrary in this trust notwithstanding, during such time as the trust created hereunder shall be a trust described in Section 4947(a)(2) of the Code, the Trustees shall be prohibited from: (i) engaging in any act of "self-dealing," as defined in Section 4941(d) of the Code; (ii) retaining any "excess business holdings," as defined in Section 4943(c) of the Code; (iii) making any investments so as to subject the trust to tax under Section 4944 of the Code, or retaining any investments which would subject the trust to such tax if the Trustees had acquired such investments; and (iv) making any "taxable expenditures," as defined in Section 4945(d) of the Code. 4 4. References to Sections of the Code in this Indenture shall also be deemed to refer to corresponding provisions of any subsequent Federal tax law. 5. No additional contribution shall be made to the trust created hereunder. 6. Nothing contained in this Indenture shall be construed to restrict the Trustees from investing the assets of the trust in a manner which could result in the annual realization of a reasonable amount of income or gain from the sale or disposition of trust assets. G. The term "charitable organization" as used in this Indenture shall mean an organization organized and operated exclusively for religious, charitable, scientific, literary or educational purposes or for the prevention of cruelty to children or animals as described in Sections 170(c), 501(c)(3) and 2522(a) of the Code (or any corresponding provisions of the tax laws from time to time in effect), gifts to which are deductible for Federal income and gift tax purposes. SECOND Upon the termination of the Term, the trust estate then remaining (after making any payments required by Paragraph A of Article FIRST) shall be paid over and distributed to such person or persons (including SUSAN SILVERSTEIN POTTER, the estate of SUSAN SILVERSTEIN POTTER, her creditors and the creditors of her estate) in such amounts or proportions and upon such estates (whether in trust or otherwise) as SUSAN SILVERSTEIN POTTER shall appoint by instrument in writing, duly signed and acknowledged by her and delivered to a then acting Trustee (other than herself) during her lifetime, or in her Last Will and Testament, by specific reference to this Indenture of Trust. The Grantor directs that any portion or all of the trust estate that is not effectively appointed shall be paid over and distributed to SUSAN SILVERSTEIN POTTER, absolutely, or 5 if she is not then living, to her then living issue, per stirpes, absolutely, and in default of such issue, to the then living issue of the Grantor from his marriage to Lois Silverstein, per stirpes, or if none, to the then living issue of the Grantor, per stirpes, absolutely. THIRD A. 1. If DENNIS McGILLICUDDY shall cease to act as a trustee hereof, the following are appointed as successor Trustees, to take office, singly, in the order named: STEPHEN BLECHNER and JAMES B. SHEIN. 2. Upon attaining the age of 40 years, SUSAN SILVERSTEIN POTTER shall be allowed to qualify as a co-Trustee to act contemporaneously with the then acting Trustees of the trust created hereunder, PROVIDED, HOWEVER, that if SUSAN SILVERSTEIN POTTER shall so qualify, MARK SHALE SILVERSTEIN shall immediately cease to act as a Trustee hereof. 3. The last to act of the Trustees (including substitutes and/or successors) herein named in respect of the trust hereunder and each of the successors appointed as herein provided, is authorized and empowered to appoint a successor Trustee, to take office upon such appointing Trustee ceasing to act hereunder. 4. The Grantor directs that any two of SUSAN SILVERSTEIN POTTER, MARK SHALE SILVERSTEIN, and THOMAS BENJAMIN SILVERSTEIN, or if only one of them shall then be living and competent, such one, acting alone, are authorized and empowered, at any time and from time to time, (i) to appoint a successor Trustee or a series of successor Trustees to fill any vacancy that may then exist or thereafter arise in the office of Trustee hereunder, (ii) to increase the number of Trustees acting as Trustees of the trust created herein by appointing one or more additional co-Trustees, and (iii) to remove any Trustee, successor Trustee 6 or co-Trustee, other than SUSAN SILVERSTEIN POTTER, MARK SHALE SILVERSTEIN or DENNIS McGILLICUDDY, at any time acting hereunder, PROVIDED, HOWEVER, that if SUSAN SILVERSTEIN POTTER shall be acting as a Trustee of the trust created herein, she shall not vote for the appointment of a person who is a "related or subordinate party" within the meaning of Section 672(c) of the Code or any successor provisions thereto with respect to herself. B. Any appointment of a successor Trustee or successor Trustees pursuant to Paragraph A hereof shall be made by instrument in writing, duly signed and acknowledged, and may from time to time prior to the qualification of the person or persons therein designated, be revoked or amended by the person making such appointment, similarly executed and acknowledged. C. In no event shall the Grantor, or any other person who has made a contribution to the trust created hereunder, be appointed as a successor Trustee hereunder. D. The term "Trustees" wherever used herein, shall be taken to mean the Trustees for the time being in office; and except as otherwise provided in this Article THIRD, each such Trustee shall have the same rights, powers, duties, authority and privileges, whether or not discretionary, as if originally appointed hereunder. E. No Trustee acting hereunder, whether named herein or appointed pursuant hereto, shall be required to post any bond or other security for the faithful performance of his or her duties hereunder. FOURTH A. The Trustees named herein hereby assume the trust created by this Indenture of Trust and undertake to carry out each and every provision hereof. 7 B. Any successor Trustee hereunder shall qualify by executing an instrument in writing, duly signed and acknowledged, expressly agreeing to assume the trust created by this Indenture of Trust and to carry out each and every provision thereof. C. No Trustee acting hereunder shall incur any liability for any act done or omitted in the exercise of his or her duties as Trustee in good faith. FIFTH A. Any Trustee acting hereunder, at any time, may resign his or her office as Trustee by written declaration duly signed by him or her and delivered to the successor Trustee designated to succeed such Trustee and to his or her co-Trustees, if any. Such resignation shall become effective upon the date specified therein. B. Any Trustee at any time acting hereunder, any resigned Trustee, and the executor or administrator of the estate of any deceased Trustee, at any time and from time to time, may render an account of the acts and transactions of such Trustee with respect to the income and principal of the trust created hereunder (from the date of the creation of such trust or from the date of the last previous account of the Trustee, as the case may be) to The William James Foundation, Inc. and to Susan Silverstein Potter, or if Susan Silverstein Potter shall not then be living, to the then living issue of Susan Silverstein Potter, or if none, to the Grantor's then living children of his marriage to Lois Silverstein, or if none, to the Grantor's then living descendants of his marriage to Lois Silverstein, or if none, to the Grantor's then living issue; PROVIDED, HOWEVER, that if any such person to whom an account may be rendered shall be a minor, any such account may instead be rendered to such person's parent or legal guardian other than the Grantor or any Trustee hereunder. The persons hereinabove described shall have full power and authority, on behalf of 8 all persons who may at any time be interested in such trust, finally to settle and adjust such account; and upon such account being settled and adjusted, it shall be final and conclusive upon each and every person (whether then living or then ascertainable or not) who shall then or thereafter be or become interested in either the income or the principal of such trust, with like effect as a judgment of a court having jurisdiction, judicially settling such account in an action in which the Trustee and all persons having or claiming to have an interest in the trust were parties. Nothing contained in the foregoing paragraph shall be deemed to preclude a Trustee from having his account judicially settled if such Trustee shall deem this advisable. C. In any proceeding in which all persons interested in the trust hereunder are required to be served with process, and in which a party to the proceeding has the same interest as a person under a disability, it shall not be necessary to serve the person under a disability, it being the Grantor's intention hereof to avoid the appointment of a guardian ad litem, whenever possible. SIXTH The Trustees are authorized, in their discretion and notwithstanding the foregoing provisions of this Indenture of Trust: A. In any case in which they are authorized or required to pay or distribute income or principal to any person who is a minor, to apply the whole or part of such income or principal, in their absolute discretion, to the minor's use in any one or more of the following ways: 1. By depositing the same in a savings account in the minor's name with any bank or trust company; 9 2. By distributing the same to any person (other than a person who has made a contribution to the trust), including a person acting as Trustee hereunder, (i) as Custodian for such minor under any Uniform Gifts to Minors Act or Uniform Transfers to Minors Act authorizing such payment; (ii) with whom the minor shall at the time reside; or (iii) then having the care or control of such minor; 3. By paying the same to such minor or to any other person (other than a person who has made a contribution to the trust), firm or corporation (other than a firm or corporation controlled by a person who has made a contribution to the trust) for the account and benefit of such minor. The Trustees, in any of the above cases, shall be under no obligation to look to the proper application of any such payment or distribution by the person receiving it. Any payment hereinabove authorized shall be a full discharge to the Trustees with respect thereto. If the Trustees make a distribution to a custodian under Subparagraph 2 above, they are authorized to make any election or designation concerning the age at which the minor is to receive the property that may be made under any applicable Uniform Gifts to Minors Act or Uniform Transfers to Minors Act. B. To defer, in whole or in part, payment or distribution of any property vesting absolutely in a minor hereunder, until such minor shall have attained majority; to expend the same or any part thereof, and the income therefrom, for the benefit of such minor in any manner hereinabove authorized in Paragraph A hereof, holding the whole or the undistributed portion thereof, and the income thereon, as a separate and distinct share for such minor, absolutely; and to transfer, pay over and deliver any remaining principal and income held hereunder to the minor when he or she attains majority, or to the estate of such minor if he or she dies prior to attaining majority. 10 C. For purposes of this Indenture of Trust, a "minor" shall be deemed to be a person under the age of twenty-one years and "majority" shall be deemed to be the age of twenty-one years. SEVENTH A. Subject to Paragraph F of Article FIRST hereof, the Trustees shall have, with respect to any and all property at any time held by them hereunder (including property held for the benefit of minors under Article SIXTH hereof) the following powers, in addition to those conferred by law: 1. To retain any such property as an investment without regard to the proportion which such property, or property of a similar character, may bear to the entire amount of the trust estate, whether or not such property is of the class in which trustees are authorized by law or any rule of court to invest trust funds. 2. To sell any such property at either public or private sale, for cash or on credit, and to exchange such property. 3. To grant options for the purchase of any such property, upon any terms and conditions, for any period or periods of time, even if the period during which any such option shall be exercisable shall extend beyond the probable duration of the trust hereunder. 4. To invest and reinvest in property of any character, real or personal, foreign or domestic, including, but without limiting the generality of the foregoing, to acquire both short and long positions, in cash or on margin, in bonds, notes, debentures, mortgages, common and preferred stock (irrespective of whether there shall be a public market therefor), shares or interests in investment trusts, general and limited partnership interests, and interests in limited liability companies without being limited to the class of securities in which trustees are authorized by law or any rule of court to invest trust funds 11 and without regard to the proportion which any such property or property of a similar character held by the Trustees may bear to the entire amount of the Trust estate or the speculative or unproductive nature of any such investment or investments, and the Trustees shall be fully protected in respect of any such investment made by them in good faith. 5. To borrow money and give indemnities and guaranties for any purpose in connection with the administration of the trust created hereunder, to continue or renew any loan made to the Trustees and in connection therewith to mortgage, pledge or otherwise encumber any property forming part of the trust upon any terms and conditions, in any amounts, and for any period of time, even if for longer than the probable duration of the trust. 6. To lend any part of the trust, with or without security, in any amount, upon any terms and conditions, at any reasonable rate of interest, for any period or periods of time even if longer than the probable duration of the trust, and to any person, firm or corporation other than the Grantor or the Grantor's spouse or a firm or corporation owned or controlled by the Grantor and/or the Grantor's spouse. 7. To manage any real property held by the Trustees hereunder in the same manner as if the Trustees were the absolute owners thereof, including, without limitation, to lease, or grant options to lease, any such real property for any term or terms, although in excess of any period permitted by statute or other rule of law (and although any such term may extend beyond the period of administration of any trust hereunder), without application to any court. 8. To vote on any securities forming part of any trust by discretionary proxy or otherwise; to join in or oppose any reorganization, recapitalization, sale, lease, merger, exchange or consolidation; to exercise 12 conversion, subscription or other rights, or to sell or abandon such rights; to receive and hold any securities issued as a result of any of the foregoing transactions; and generally to take all action in respect of any such securities as the Trustees might or could do as the absolute owners thereof. 9. To deposit any securities with voting trustees or protective or similar committees, to delegate to them discretionary powers, to pay a share of their expense and compensation, and to charge the same to principal or income as the Trustees may see fit. 10. To cause any stocks, bonds, securities, cash or other property at any time held by the Trustees to be registered in the name of a nominee or nominees. 11. To compromise, settle or arbitrate any claim in favor of or against the trust hereunder. 12. To determine whether, and, if so, to what extent, premiums on investments shall be amortized. 13. To make any distribution hereunder, in whole or in part, in securities or other property comprising the principal of the trust at the time of such distribution, and in making such distribution the Trustees shall not be required to prorate any item of property so distributed among the persons entitled to such distribution, but shall be authorized and empowered to distribute different items of property to the distributees. 14. To maintain on behalf of the trust hereunder one or more custody accounts with any bank, trust company or brokerage firm wherever located, and to retain investment counsel, investment advisers, accountants and attorneys (including any firm of investment counsel, investment advisers, accountants or attorneys with which the Trustees from time to time acting hereunder shall be associated or otherwise connected) and to charge the cost thereof to the principal or income of such trust as the Trustees may deem appropriate. 13 15. To delegate any or all of the powers and authorities hereinbefore conferred upon Trustees in Subparagraphs 1, 2 and 4 hereof, at any time and from time to time, with respect to all or any portion of the property held hereunder, to any one or more individual or institutional investment advisers or investment managers for any period or periods and upon such terms, conditions and for such compensation as the Trustees shall in their sole and unreviewable discretion deem appropriate, it being expressly provided that the Trustees shall have no responsibility or liability for any loss to the trust hereunder by reason of any action taken or omitted to be taken as a result of such delegation. 16. To allocate and credit to income so much or all of any distribution made by a regulated investment company or mutual fund that is designated a "dividend" by such company or mutual fund, even though paid from short-term capital gain or any source other than ordinary income. 17. To determine whether any dividend, other than an ordinary cash dividend, declared and paid upon any securities held by the Trustees, whether payable in cash, in stock (issued by the corporation declaring the same or by any other corporation), in bonds, or otherwise, shall be treated as and allocable to principal or income, or partly to principal and partly to income, and the Trustees shall not be required to treat any particular dividend in the same manner as previous dividends upon the same or other securities, or to make any determination on the basis of whether any particular dividend represents in whole or in part a distribution of earnings or surplus regardless of when earned or created. This provision shall be in lieu of any statute or applicable rule of law now or hereafter in effect in the State of Florida. 14 18. To exercise any other or further authority or discretion not hereinabove specifically granted as may from time to time be permitted by applicable statutes or rules of law, it being the Grantor's intention that the foregoing powers shall be in addition to and shall not be deemed a limitation upon such authority and discretion as the Trustees would have but for such provisions. B. Persons dealing with the Trustees shall not be bound to see to the application of any moneys paid to the Trustees pursuant to their exercise of any of the foregoing powers. EIGHTH Whenever necessary or appropriate, the use herein of any gender shall be deemed to include the other gender and the use herein of either the singular or the plural shall be deemed to include the other. NINTH The trust hereby created shall be irrevocable, and neither the Grantor nor, except as expressly provided in Subparagraph 1 of Paragraph F of Article FIRST, any Trustee at any time acting hereunder shall have the right to change, alter or amend any of the provisions thereof. TENTH The trust created hereunder shall be deemed to be a Florida trust and shall be governed and construed in all respects by and in accordance with the laws of the State of Florida. The Trustees, however, is prohibited from exercising any power or discretion granted under said laws that would be inconsistent with the qualification of the annuity amount payable under Article FIRST hereof as a "guaranteed annuity interest" under Section 2522(c)(2)(B) of the Code and the corresponding regulations. 15 IN WITNESS WHEREOF, the Grantor signs, seals, publishes, and declares this instrument to be an Irrevocable Trust Agreement and, for purpose of identification, the Grantor has signed his initials on each page other than the signature page, and the Grantor has signed his name, in the presence of the persons witnessing this Trust Agreement, at the Grantor's request, on the day and year first above written. /s/ Jeffrey R. McCurdy /s/ Barry Silverstein - ----------------------------- ----------------------------- Witness BARRY SILVERSTEIN /s/ Randy Arnaud - ----------------------------- Witness ACCEPTANCE BY TRUSTEES /s/ Mark Shale Silverstein ----------------------------- MARK SHALE SILVERSTEIN /s/ Dennis McGillicuddy ----------------------------- DENNIS McGILLICUDDY 16 STATE OF FLORIDA ) ) SS: COUNY OF ) We, BARRY SILVERSTEIN, Jeffrey R. McCurdy and Randy Arnaud, the Grantor and the witnesses respectively, whose names are signed to the foregoing instrument, having been sworn, declared to the undersigned officer that the Grantor in the presence of witnesses signed the instrument as an Irrevocable Trust Agreement, that the Grantor signed and that each of the witnesses, in the presence of the Grantor and in the presence of each other signed the Agreement as a witness. /s/ Barry Silverstein ---------------------- BARRY SILVERSTEIN /s/ Jeffrey R. McCurdy ---------------------- Witness /s/ Randy Arnaud ---------------------- Witness Subscribed and sworn to before me by BARRY SILVERSTEIN, the Grantor, who is personally known to me or who has produced _____________ as identification, and by Jeffrey R. McCurdy, a witness, who is personally known to me or who has produced ______________________ as identification, and byRandy Arnaud, a witness, who is personally known to me or who has produced _______________________ as identification, on this 17th day of September, 2003. /s/ Linnette A. Fauroat ----------------------- Notary Public [NOTARY SEAL] 17 STATE OF FLORIDA ) ) ss.: COUNTY OF ) The foregoing instrument was acknowledged before me this 17th day of September, 2003, by BARRY SILVERSTEIN , who is personally known to me or who has produced __________________________ as identification. /s/ Linnette A. Fauroat ----------------------- Name: Linnette A. Fauroat [NOTARY SEAL] STATE OF ENGLAND ) ) ss.: CITY OF LONDON ) The foregoing instrument was acknowledged before me this 2nd day of October, 2003, by MARK SHALE SILVERSTEIN, who is personally known to me or who has produced US Passport 700913975 as identification. /s/ Barrington William Hooke ----------------------- Name: BARRINGTON WILLIAM HOOKE NOTARY PUBLIC, LONDON [NOTARY SEAL] STATE OF FLORIDA ) ) ss.: COUNTY OF SARASOTA ) The foregoing instrument was acknowledged before me this 22 day of September, 2003, by DENNIS McGILLICUDDY, who is personally known to me or who has produced __________________________ as identification. /s/ Christen Flenard ----------------------- Name: Christen Flenard [NOTARY SEAL] EX-11 11 ex-11.txt Exhibit 11 INDENTURE OF TRUST made as of the 17th day of September, 2003, by and between BARRY SILVERSTEIN, as Grantor, and MARK SHALE SILVERSTEIN and DENNIS McGILLICUDDY, as Trustees. W I T N E S S E T H : The Grantor hereby transfers, assigns and delivers to the Trustees the property described in Schedule A annexed hereto (and the Trustees hereby acknowledges receipt of such property), to hold the same, IN TRUST, to invest and reinvest, to collect the rents, income and profits thereof, and to dispose of the same upon the terms hereinafter set forth. The trust created herein shall be known as the "THOMAS BENJAMIN SILVERSTEIN 2003 CLAT." FIRST A. In each year of the "trust term" (as hereinafter defined), the Trustees shall make payments aggregating the "annuity amount" (as hereinafter defined) to The William James Foundation, Inc. (or, if The William James Foundation, Inc. shall not be a "charitable organization" (as defined in Paragraph G below) at the time of any payment hereunder, to such one or more charitable organizations in such amounts or proportions, as the Trustees shall, in their sole and unreviewable discretion, select and determine). B. The "trust term" shall mean the twenty (20) year period commencing on the date hereof. C. The term "annuity amount" shall be such amount which shall be required to generate a Federal gift tax charitable deduction equal to the value of the initial net fair market value of the principal of such trust as finally determined for Federal gift tax purposes, for the annuity which is to be paid pursuant to the terms of Paragraph A above, as calculated using (a) the lowest Applicable Federal Rate promulgated by the Treasury Department for valuing annuities which the Trustees may elect to use under Section 7520(a) of the Internal Revenue Code of 1986, as amended (hereinafter referred to as the "Code"), and (b) the procedures promulgated by the Treasury Department for valuing annuities.. In determining such initial net fair market value, the assets of such trust shall be valued at the values finally determined therefor for Federal estate tax purposes. If the initial net fair market value of the property contributed to the trust created hereunder is incorrectly determined, then, within a reasonable period after such net fair market value is finally determined, the Trustees shall (in the case of an undervaluation) pay to or shall (in the case of an overvaluation) receive from The William James Foundation, Inc. and/or the charitable organization or charitable organizations, as the case may be, as shall have received an incorrectly determined annuity amount, and if more than one, in the proportions in which they shall have shared in such incorrectly determined annuity amount, an amount equal to the difference between: (a) any annuity amounts actually paid, plus interest, compounded annually, computed for any period at the rate of interest that the Federal income tax regulations under Section 664 of the Code prescribe for the trust for such computation for such period; and (b) the annuity amounts payable, plus interest, compounded annually, computed for any period at the rate of interest that the Federal income tax regulations under Section 664 of the Code prescribe for the trust for such computation for such period. 2 D. In case of any taxable year of the trust during the trust term which is for a period of less than twelve months, the annuity amount for such year shall be prorated on a daily basis. E. The Trustees shall make payments under Paragraph A above aggregating the annuity amount annually. Any payment made during any taxable year of the trust, or treated (at the election of the Trustees pursuant to Section 642(c)(1) of the Code) for Federal income tax purposes as having been made during such year, in satisfaction of the annuity amount, shall first be made from the ordinary income (including short term capital gain) other than unrelated business income of the trust for such year, thereafter from capital gains of the trust for the year, thereafter from unrelated business income of such trust for the year, thereafter from tax-exempt income and, if and to the extent that such ordinary income, capital gains and unrelated business income and tax-exempt income shall be insufficient to pay the annuity amount, then from the principal of the trust. Any net income not required for the payment of the annuity amount shall be added to principal. F. 1. It is the Grantor's intention that the twenty (20) year annuity payable under this Indenture shall qualify as a deductible charitable interest under Section 2522(c)(2)(B) of the Code and regulations thereunder and that the Grantor shall be entitled to a charitable deduction for Federal gift tax purposes for the full value, as of the date hereof, of such annuity. The Grantor therefore directs that all provisions of this Indenture shall be interpreted and construed so as to give effect to such intention and that the Trustees shall pay all payments on account of the annuity amount at such times and in such amounts and shall also otherwise administer the trust in such manner as may be required to qualify such annuity for the aforesaid charitable deduction. If such Section or regulations, or any successor Section or regulations, or any ruling, notice 3 or other administrative pronouncement issued thereunder, at any time requires that an instrument creating a "guaranteed annuity interest" within the meaning of Section 2522(c)(2)(B) of the Code and the regulations promulgated thereunder must contain provisions that are not expressly set forth herein, such provisions shall be incorporated into this Indenture of Trust by reference and shall be deemed to be a part of this Indenture of Trust to the same extent as though they had been expressly set forth herein. The Trustees shall have the power, acting by majority, to amend the Trust created hereunder in any manner required for the sole purpose of ensuring that the annuity amount payable under Article FIRST hereof qualifies as a "guaranteed annuity interest" within the meaning of Section 2522(c)(2)(B) of the Code and the regulations promulgated thereunder. 2. If the effect of any provision of this Indenture would be to prevent the allowance of said charitable deduction for such annuity, then the Grantor directs that such offending provision shall not apply to the trust. 3. Anything to the contrary in this trust notwithstanding, during such time as the trust created hereunder shall be a trust described in Section 4947(a)(2) of the Code, the Trustees shall be prohibited from: (i) engaging in any act of "self-dealing," as defined in Section 4941(d) of the Code; (ii) retaining any "excess business holdings," as defined in Section 4943(c) of the Code; (iii) making any investments so as to subject the trust to tax under Section 4944 of the Code, or retaining any investments which would subject the trust to such tax if the Trustees had acquired such investments; and (iv) making any "taxable expenditures," as defined in Section 4945(d) of the Code. 4 4. References to Sections of the Code in this Indenture shall also be deemed to refer to corresponding provisions of any subsequent Federal tax law. 5. No additional contribution shall be made to the trust created hereunder. 6. Nothing contained in this Indenture shall be construed to restrict the Trustees from investing the assets of the trust in a manner which could result in the annual realization of a reasonable amount of income or gain from the sale or disposition of trust assets. G. The term "charitable organization" as used in this Indenture shall mean an organization organized and operated exclusively for religious, charitable, scientific, literary or educational purposes or for the prevention of cruelty to children or animals as described in Sections 170(c), 501(c)(3) and 2522(a) of the Code (or any corresponding provisions of the tax laws from time to time in effect), gifts to which are deductible for Federal income and gift tax purposes. SECOND Upon the termination of the Term, the trust estate then remaining (after making any payments required by Paragraph A of Article FIRST) shall be paid over and distributed to such person or persons (including THOMAS BENJAMIN SILVERSTEIN, the estate of THOMAS BENJAMIN SILVERSTEIN, his creditors and the creditors of his estate) in such amounts or proportions and upon such estates (whether in trust or otherwise) as THOMAS BENJAMIN SILVERSTEIN shall appoint by instrument in writing, duly signed and acknowledged by him and delivered to a then acting Trustee (other than himself) during his lifetime, or in his Last Will and Testament, by specific reference to this Indenture of Trust. The Grantor directs that any portion or all of the trust estate that is not effectively appointed shall be paid over and distributed to THOMAS BENJAMIN 5 SILVERSTEIN, absolutely, or if he is not then living, to his then living issue, per stirpes, absolutely, and in default of such issue, to the then living issue of the Grantor from his marriage to Lois Silverstein, per stirpes, or if none, to the then living issue of the Grantor, per stirpes, absolutely. III.third A. 1. If DENNIS McGILLICUDDY shall cease to act as a trustee hereof, the following are appointed as successor Trustees, to take office, singly, in the order named: STEPHEN BLECHNER and JAMES B. SHEIN. 2. Upon attaining the age of 40 years, THOMAS BENJAMIN SILVERSTEIN shall be allowed to qualify as a co-Trustee to act contemporaneously with the then acting Trustees of the trust created hereunder, PROVIDED, HOWEVER, that if THOMAS BENJAMIN SILVERSTEIN shall so qualify, MARK SHALE SILVERSTEIN shall immediately cease to act as a Trustee hereof. 3. The last to act of the Trustees (including substitutes and/or successors) herein named in respect of the trust hereunder and each of the successors appointed as herein provided, is authorized and empowered to appoint a successor Trustee, to take office upon such appointing Trustee ceasing to act hereunder. 4. The Grantor directs that any two of THOMAS BENJAMIN SILVERSTEIN, MARK SHALE SILVERSTEIN, and, SUSAN SILVERSTEIN POTTER, or if only one of them shall then be living and competent, such one, acting alone, are authorized and empowered, at any time and from time to time, (i) to appoint a successor Trustee or a series of successor Trustees to fill any vacancy that may then exist or thereafter arise in the office of Trustee hereunder, (ii) to increase the number of Trustees acting as Trustees of the trust created herein by appointing one or more additional co-Trustees, and (iii) to remove any Trustee, successor Trustee 6 or co-Trustee, other than THOMAS BENJAMIN SILVERSTEIN, MARK SHALE SILVERSTEIN or DENNIS McGILLICUDDY, at any time acting hereunder, PROVIDED, HOWEVER, that if THOMAS BENJAMIN SILVERSTEIN shall be acting as a Trustee of the trust created herein, he shall not vote for the appointment of a person who is a "related or subordinate party" within the meaning of Section 672(c) of the Code or any successor provisions thereto with respect to himself. B. Any appointment of a successor Trustee or successor Trustees pursuant to Paragraph A hereof shall be made by instrument in writing, duly signed and acknowledged, and may from time to time prior to the qualification of the person or persons therein designated, be revoked or amended by the person making such appointment, similarly executed and acknowledged. C. In no event shall the Grantor, or any other person who has made a contribution to the trust created hereunder, be appointed as a successor Trustee hereunder. D. The term "Trustees" wherever used herein, shall be taken to mean the Trustees for the time being in office; and except as otherwise provided in this Article THIRD, each such Trustee shall have the same rights, powers, duties, authority and privileges, whether or not discretionary, as if originally appointed hereunder. E. No Trustee acting hereunder, whether named herein or appointed pursuant hereto, shall be required to post any bond or other security for the faithful performance of his or her duties hereunder. FOURTH A. The Trustees named herein hereby assume the trust created by this Indenture of Trust and undertake to carry out each and every provision hereof. 7 B. Any successor Trustee hereunder shall qualify by executing an instrument in writing, duly signed and acknowledged, expressly agreeing to assume the trust created by this Indenture of Trust and to carry out each and every provision thereof. C. No Trustee acting hereunder shall incur any liability for any act done or omitted in the exercise of his or her duties as Trustee in good faith. FIFTH A. Any Trustee acting hereunder, at any time, may resign his or her office as Trustee by written declaration duly signed by him or her and delivered to the successor Trustee designated to succeed such Trustee and to his or her co-Trustees, if any. Such resignation shall become effective upon the date specified therein. B. Any Trustee at any time acting hereunder, any resigned Trustee, and the executor or administrator of the estate of any deceased Trustee, at any time and from time to time, may render an account of the acts and transactions of such Trustee with respect to the income and principal of the trust created hereunder (from the date of the creation of such trust or from the date of the last previous account of the Trustee, as the case may be) to The William James Foundation, Inc. and to Thomas Benjamin Silverstein, or if Thomas Benjamin Silverstein shall not then be living, to the then living issue of Thomas Benjamin Silverstein, or if none, to the Grantor's then living children of his marriage to Lois Silverstein, or if none, to the Grantor's then living descendants of his marriage to Lois Silverstein, or if none, to the Grantor's then living issue; PROVIDED, HOWEVER, that if any such person to whom an account may be rendered shall be a minor, any such account may instead be rendered to such person's parent or legal guardian other than the Grantor or any Trustee hereunder. The persons hereinabove described shall have full power and authority, on behalf of all persons who may at any time be interested in such 8 trust, finally to settle and adjust such account; and upon such account being settled and adjusted, it shall be final and conclusive upon each and every person (whether then living or then ascertainable or not) who shall then or thereafter be or become interested in either the income or the principal of such trust, with like effect as a judgment of a court having jurisdiction, judicially settling such account in an action in which the Trustee and all persons having or claiming to have an interest in the trust were parties. Nothing contained in the foregoing paragraph shall be deemed to preclude a Trustee from having his account judicially settled if such Trustee shall deem this advisable. C. In any proceeding in which all persons interested in the trust hereunder are required to be served with process, and in which a party to the proceeding has the same interest as a person under a disability, it shall not be necessary to serve the person under a disability, it being the Grantor's intention hereof to avoid the appointment of a guardian ad litem, whenever possible. SIXTH The Trustees are authorized, in their discretion and notwithstanding the foregoing provisions of this Indenture of Trust: A. In any case in which they are authorized or required to pay or distribute income or principal to any person who is a minor, to apply the whole or part of such income or principal, in their absolute discretion, to the minor's use in any one or more of the following ways: 1. By depositing the same in a savings account in the minor's name with any bank or trust company; 9 2. By distributing the same to any person (other than a person who has made a contribution to the trust), including a person acting as Trustee hereunder, (i) as Custodian for such minor under any Uniform Gifts to Minors Act or Uniform Transfers to Minors Act authorizing such payment; (ii) with whom the minor shall at the time reside; or (iii) then having the care or control of such minor; 3. By paying the same to such minor or to any other person (other than a person who has made a contribution to the trust), firm or corporation (other than a firm or corporation controlled by a person who has made a contribution to the trust) for the account and benefit of such minor. The Trustees, in any of the above cases, shall be under no obligation to look to the proper application of any such payment or distribution by the person receiving it. Any payment hereinabove authorized shall be a full discharge to the Trustees with respect thereto. If the Trustees make a distribution to a custodian under Subparagraph 2 above, they are authorized to make any election or designation concerning the age at which the minor is to receive the property that may be made under any applicable Uniform Gifts to Minors Act or Uniform Transfers to Minors Act. B. To defer, in whole or in part, payment or distribution of any property vesting absolutely in a minor hereunder, until such minor shall have attained majority; to expend the same or any part thereof, and the income therefrom, for the benefit of such minor in any manner hereinabove authorized in Paragraph A hereof, holding the whole or the undistributed portion thereof, and the income thereon, as a separate and distinct share for such minor, absolutely; and to transfer, pay over and deliver any remaining principal and income held hereunder to the minor when he or she attains majority, or to the estate of such minor if he or she dies prior to attaining majority. 10 C. For purposes of this Indenture of Trust, a "minor" shall be deemed to be a person under the age of twenty-one years and "majority" shall be deemed to be the age of twenty-one years. SEVENTH A. Subject to Paragraph F of Article FIRST hereof, the Trustees shall have, with respect to any and all property at any time held by them hereunder (including property held for the benefit of minors under Article SIXTH hereof) the following powers, in addition to those conferred by law: 1. To retain any such property as an investment without regard to the proportion which such property, or property of a similar character, may bear to the entire amount of the trust estate, whether or not such property is of the class in which trustees are authorized by law or any rule of court to invest trust funds. 2. To sell any such property at either public or private sale, for cash or on credit, and to exchange such property. 3. To grant options for the purchase of any such property, upon any terms and conditions, for any period or periods of time, even if the period during which any such option shall be exercisable shall extend beyond the probable duration of the trust hereunder. 4. To invest and reinvest in property of any character, real or personal, foreign or domestic, including, but without limiting the generality of the foregoing, to acquire both short and long positions, in cash or on margin, in bonds, notes, debentures, mortgages, common and preferred stock (irrespective of whether there shall be a public market therefor), shares or interests in investment trusts, general and limited partnership interests, and interests in 11 limited liability companies without being limited to the class of securities in which trustees are authorized by law or any rule of court to invest trust funds and without regard to the proportion which any such property or property of a similar character held by the Trustees may bear to the entire amount of the Trust estate or the speculative or unproductive nature of any such investment or investments, and the Trustees shall be fully protected in respect of any such investment made by them in good faith. 5. To borrow money and give indemnities and guaranties for any purpose in connection with the administration of the trust created hereunder, to continue or renew any loan made to the Trustees and in connection therewith to mortgage, pledge or otherwise encumber any property forming part of the trust upon any terms and conditions, in any amounts, and for any period of time, even if for longer than the probable duration of the trust. 6. To lend any part of the trust, with or without security, in any amount, upon any terms and conditions, at any reasonable rate of interest, for any period or periods of time even if longer than the probable duration of the trust, and to any person, firm or corporation other than the Grantor or the Grantor's spouse or a firm or corporation owned or controlled by the Grantor and/or the Grantor's spouse. 7. To manage any real property held by the Trustees hereunder in the same manner as if the Trustees were the absolute owners thereof, including, without limitation, to lease, or grant options to lease, any such real property for any term or terms, although in excess of any period permitted by statute or other rule of law (and although any such term may extend beyond the period of administration of any trust hereunder), without application to any court. 12 8. To vote on any securities forming part of any trust by discretionary proxy or otherwise; to join in or oppose any reorganization, recapitalization, sale, lease, merger, exchange or consolidation; to exercise conversion, subscription or other rights, or to sell or abandon such rights; to receive and hold any securities issued as a result of any of the foregoing transactions; and generally to take all action in respect of any such securities as the Trustees might or could do as the absolute owners thereof. 9. To deposit any securities with voting trustees or protective or similar committees, to delegate to them discretionary powers, to pay a share of their expense and compensation, and to charge the same to principal or income as the Trustees may see fit. 10. To cause any stocks, bonds, securities, cash or other property at any time held by the Trustees to be registered in the name of a nominee or nominees. 11. To compromise, settle or arbitrate any claim in favor of or against the trust hereunder. 12. To determine whether, and, if so, to what extent, premiums on investments shall be amortized. 13. To make any distribution hereunder, in whole or in part, in securities or other property comprising the principal of the trust at the time of such distribution, and in making such distribution the Trustees shall not be required to prorate any item of property so distributed among the persons entitled to such distribution, but shall be authorized and empowered to distribute different items of property to the distributees. 13 14. To maintain on behalf of the trust hereunder one or more custody accounts with any bank, trust company or brokerage firm wherever located, and to retain investment counsel, investment advisers, accountants and attorneys (including any firm of investment counsel, investment advisers, accountants or attorneys with which the Trustees from time to time acting hereunder shall be associated or otherwise connected) and to charge the cost thereof to the principal or income of such trust as the Trustees may deem appropriate. 15. To delegate any or all of the powers and authorities hereinbefore conferred upon Trustees in Subparagraphs 1, 2 and 4 hereof, at any time and from time to time, with respect to all or any portion of the property held hereunder, to any one or more individual or institutional investment advisers or investment managers for any period or periods and upon such terms, conditions and for such compensation as the Trustees shall in their sole and unreviewable discretion deem appropriate, it being expressly provided that the Trustees shall have no responsibility or liability for any loss to the trust hereunder by reason of any action taken or omitted to be taken as a result of such delegation. 16. To allocate and credit to income so much or all of any distribution made by a regulated investment company or mutual fund that is designated a "dividend" by such company or mutual fund, even though paid from short-term capital gain or any source other than ordinary income. 17. To determine whether any dividend, other than an ordinary cash dividend, declared and paid upon any securities held by the Trustees, whether payable in cash, in stock (issued by the corporation declaring the same or by any other corporation), in bonds, or otherwise, shall be treated as and allocable to principal or income, or partly to principal and partly to income, and the Trustees shall not be required to treat any particular dividend in the same manner as previous dividends upon the same or other securities, or to make any determination on the basis of whether any particular dividend represents in 14 whole or in part a distribution of earnings or surplus regardless of when earned or created. This provision shall be in lieu of any statute or applicable rule of law now or hereafter in effect in the State of Florida. 18. To exercise any other or further authority or discretion not hereinabove specifically granted as may from time to time be permitted by applicable statutes or rules of law, it being the Grantor's intention that the foregoing powers shall be in addition to and shall not be deemed a limitation upon such authority and discretion as the Trustees would have but for such provisions. B. Persons dealing with the Trustees shall not be bound to see to the application of any moneys paid to the Trustees pursuant to their exercise of any of the foregoing powers. EIGHTH Whenever necessary or appropriate, the use herein of any gender shall be deemed to include the other gender and the use herein of either the singular or the plural shall be deemed to include the other. NINTH The trust hereby created shall be irrevocable, and neither the Grantor nor, except as expressly provided in Subparagraph 1 of Paragraph F of Article FIRST, any Trustee at any time acting hereunder shall have the right to change, alter or amend any of the provisions thereof. TENTH The trust created hereunder shall be deemed to be a Florida trust and shall be governed and construed in all respects by and in accordance with the laws of the State of Florida. The Trustees, however, is prohibited from exercising any power or discretion granted under said laws that would be inconsistent with the qualification of the annuity amount payable under Article FIRST hereof as a "guaranteed annuity interest" under Section 2522(c)(2)(B) of the Code and the corresponding regulations. 15 IN WITNESS WHEREOF, the Grantor signs, seals, publishes, and declares this instrument to be an Irrevocable Trust Agreement and, for purpose of identification, the Grantor has signed his initials on each page other than the signature page, and the Grantor has signed his name, in the presence of the persons witnessing this Trust Agreement, at the Grantor's request, on the day and year first above written. /s/ Jeffrey R. McCurdy /s/ Barry Silverstein - ----------------------------- ----------------------------- Witness BARRY SILVERSTEIN /s/ Randy Arnaud - ----------------------------- Witness ACCEPTANCE BY TRUSTEES /s/ Mark Shale Silverstein ----------------------------- MARK SHALE SILVERSTEIN /s/ Dennis McGillicuddy ----------------------------- DENNIS McGILLICUDDY 16 STATE OF FLORIDA ) ) SS: COUNY OF SARASOTA ) We, BARRY SILVERSTEIN, Jeffrey R. McCurdy and Randy Arnaud, the Grantor and the witnesses respectively, whose names are signed to the foregoing instrument, having been sworn, declared to the undersigned officer that the Grantor in the presence of witnesses signed the instrument as an Irrevocable Trust Agreement, that the Grantor signed and that each of the witnesses, in the presence of the Grantor and in the presence of each other signed the Agreement as a witness. /s/ Barry Silverstein ---------------------- BARRY SILVERSTEIN /s/ Jeffrey R. McCurdy ---------------------- Witness /s/ Randy Arnaud ---------------------- Witness Subscribed and sworn to before me by BARRY SILVERSTEIN, the Grantor, who is personally known to me or who has produced _____________ as identification, and by Jeffrey R. McCurdy, a witness, who is personally known to me or who has produced ______________________ as identification, and by Randy Arnaud, a witness, who is personally known to me or who has produced _______________________ as identification, on this 17th day of September, 2003. /s/ Linnette A. Fauroat ----------------------- Notary Public [NOTARY SEAL] 17 STATE OF FLORIDA ) ) ss.: COUNTY OF SARASOTA ) The foregoing instrument was acknowledged before me this 17th day of September, 2003, by BARRY SILVERSTEIN , who is personally known to me or who has produced __________________________ as identification. /s/ Linnette A. Fauroat ----------------------- Name: Linnette A. Fauroat [NOTARY SEAL] STATE OF ENGLAND ) ) ss.: CITY OF LONDON ) The foregoing instrument was acknowledged before me this 2nd day of October, 2003, by MARK SHALE SILVERSTEIN, who is personally known to me or who has produced US Passport 700913975 as identification. /s/ Barrington William Hooke ----------------------- Name: BARRINGTON WILLIAM HOOKE NOTARY PUBLIC, LONDON [NOTARY SEAL] STATE OF FLORIDA ) ) ss.: COUNTY OF SARASOTA ) The foregoing instrument was acknowledged before me this 22 day of September, 2003, by DENNIS McGILLICUDDY, who is personally known to me or who has produced __________________________ as identification. /s/ Christen Flenard ----------------------- Name: Christen Flenard [NOTARY SEAL] -----END PRIVACY-ENHANCED MESSAGE-----