-----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, PWVCf6UbgUKibSN/IG8XmS4iqmnGW4U/1TvD14/NDKbHQUEv7YGlmm/q6kXRoQDY 2s92sHqMI79DrBu5h72KuQ== 0000950116-03-002988.txt : 20030616 0000950116-03-002988.hdr.sgml : 20030616 20030613211010 ACCESSION NUMBER: 0000950116-03-002988 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 103 FILED AS OF DATE: 20030616 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TOLL BROTHERS FINANCE CORP CENTRAL INDEX KEY: 0001209636 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 233097271 STATE OF INCORPORATION: DE FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-103931 FILM NUMBER: 03744531 BUSINESS ADDRESS: STREET 1: C/O TOLL BROTHERS INC STREET 2: 3103 PHILMONT AVENUE CITY: HUNTINGDON VALLEY STATE: PA ZIP: 19006 BUSINESS PHONE: 2159388045 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TOLL CORP CENTRAL INDEX KEY: 0000836623 STANDARD INDUSTRIAL CLASSIFICATION: LAND SUBDIVIDERS & DEVELOPERS (NO CEMETERIES) [6552] IRS NUMBER: 222485860 STATE OF INCORPORATION: DE FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-103931-03 FILM NUMBER: 03744529 BUSINESS ADDRESS: STREET 1: 3103 PHILMONT AVE CITY: HUNTINGDON VALLEY STATE: PA ZIP: 19006 BUSINESS PHONE: 2159388000 MAIL ADDRESS: STREET 1: 3103 PHILMONT AVENUE CITY: HUNTINGTON VALLEY STATE: PA ZIP: 19006 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIRST HUNTINGDON FINANCE CORP CENTRAL INDEX KEY: 0001095653 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] STATE OF INCORPORATION: DE FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-103931-02 FILM NUMBER: 03744528 BUSINESS ADDRESS: STREET 1: 3103 PHILMONT AVE CITY: HUNTINGDON VALLEY STATE: PA ZIP: 19006 BUSINESS PHONE: 2159388000 MAIL ADDRESS: STREET 1: 3103 PHILMONT AVENUE CITY: HUNTINGDON VALLEY STATE: PA ZIP: 19006 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TOLL BROTHERS INC CENTRAL INDEX KEY: 0000794170 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 232416878 STATE OF INCORPORATION: DE FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-103931-04 FILM NUMBER: 03744530 BUSINESS ADDRESS: STREET 1: 3103 PHILMONT AVE CITY: HUNTINGDON VALLEY STATE: PA ZIP: 19006 BUSINESS PHONE: 2159388000 MAIL ADDRESS: STREET 1: 3103 PHILMONT AVENUE CITY: HUNTINGDON VALLEY STATE: PA ZIP: 19006 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TOLL FINANCE CORP CENTRAL INDEX KEY: 0001095652 STANDARD INDUSTRIAL CLASSIFICATION: OPERATIVE BUILDERS [1531] IRS NUMBER: 232978196 STATE OF INCORPORATION: DE FISCAL YEAR END: 1031 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-103931-01 FILM NUMBER: 03744527 BUSINESS ADDRESS: STREET 1: 3103 PHILMONT AVE CITY: HUNTINGDON VALLEY STATE: PA ZIP: 19006 BUSINESS PHONE: 2159388000 MAIL ADDRESS: STREET 1: 3103 PHILMONT AVENUE CITY: HUNTINGDON VALLEY STATE: PA ZIP: 19006 S-4/A 1 s4a.txt S-4/A As filed with the Securities and Exchange Commission, via EDGAR, on June 16, 2003. Registration Nos. 333-103931, 333-103931-01, 333-103931-02, 333-103931-03 and 333-103931-04. ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------------- Amendment No. 1 FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------------- TOLL BROTHERS FINANCE CORP. TOLL BROTHERS, INC. ----------------------------------------------------------- (Exact name of each registrant as specified in its charter)
Toll Brothers Finance Corp.- Delaware 1531 Toll Brothers Finance Corp.- 23-3097271 Toll Brothers, Inc.- Delaware 1531 Toll Brothers, Inc.- 23-2416878 - ------------------------------------- --------- --------------------------------------- (State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer Identification Number) of incorporation Classification Code Number of of each registrant) each registrant and each additional registrant)
3103 Philmont Avenue Huntingdon Valley, Pennsylvania 19006 (215) 938-8000 ------------------------------------------------------------------------- (Address, including zip code, and telephone number, including area code, of registrants' principal executive offices) SEE TABLE OF ADDITIONAL REGISTRANTS --------------------------------------- Joel H. Rassman Executive Vice President Toll Brothers, Inc. 3103 Philmont Avenue Huntingdon Valley, Pennsylvania 19006 (215) 938-8000 ------------------------------------------------------------------------------ (Name, address, including zip code, and telephone number, including area code, of agent for service for each registrant and the additional registrants) ------------------ Copies to: Mark K. Kessler, Esquire Wolf, Block, Schorr and Solis-Cohen LLP 1650 Arch Street, 22nd Floor Philadelphia, Pennsylvania 19103-2097 (215) 977-2000 ------------------ Approximate date of commencement of proposed sale to the public: As soon as practicable after effective date of this registration statement. If the securities being registered on this form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. [ ] If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] The registrants hereby amend this registration statement on such date or dates as may be necessary to delay its effective date until the registrants shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. ------------------ TABLE OF ADDITIONAL REGISTRANTS(1)
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Toll Holdings, Inc. Delaware 23-2569047 Amwell Chase, Inc. Delaware 23-2551304 BBCC Investments, Inc. Pennsylvania 23-3051375 Brentwood Investments I, Inc Tennessee 04-3602308 Bunker Hill Estates, Inc. Delaware 23-2535037 Chesterbrooke, Inc. Delaware 23-2485513 Connecticut Land Corp. Delaware 23-2533514 Daylesford Development Corp. Delaware 23-2511943 Eastern States Engineering, Inc. Delaware 23-2432981 Edmunds-Toll Construction Company Arizona 23-2832024 Fairway Valley, Inc. Delaware 23-2432976 First Brandywine Finance Corp. Delaware 23-2737486 First Brandywine Investment Corp. II Delaware 23-2731790 First Brandywine Investment Corp. III Delaware 23-2820213 First Huntingdon Finance Corp. Delaware 23-2485787 Franklin Farms G.P., Inc. Delaware 23-2486303 Frenchman's Reserve Country Club, Inc. Florida 56-2290261 HQZ Acquisitions, Inc. Michigan 38-3149633 MA Limited Land Corporation Delaware 23-2523560 Maple Point, Inc. Delaware 23-2551803 Maryland Limited Land Corporation Delaware 23-2499816 Mizner County Club, Inc. Florida 23-2970622 Polekoff Farm, Inc. Pennsylvania 23-2417142 Silverman Development Company, Inc. Michigan 38-3180742 SH Homes Corporation Michigan 38-3392296 SI Investment Corporation Michigan 38-3298884 Springfield Chase, Inc. Delaware 23-2538985 Stewarts Crossing, Inc. Delaware 23-2547222 Tampa Realty Associates, Inc. Florida 23-3026885 TB Proprietary Corp. Delaware 23-2485790 TB Proprietary LP, Inc. Delaware 23-3066217 Tenby Hunt, Inc. Delaware 23-2682947 The Silverman Building Companies, Inc. Michigan 38-3075345
- ---------------------- (1) The address, including zip code, and telephone number, including area code, for each of the additional registrants is 3103 Philmont Avenue, Huntingdon Valley, Pennsylvania 19006, (215) 938-8000. i
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Toll AZ GP Corp. Delaware 23-2815680 Toll Bros., Inc. Pennsylvania 23-2417123 Toll Bros., Inc. Delaware 23-2600117 Toll Bros., Inc. Texas 23-2896374 Toll Bros. of Arizona, Inc. Arizona 23-2906398 Toll Bros. of North Carolina, Inc. North Carolina 23-2777389 Toll Bros. of North Carolina II, Inc. North Carolina 23-2990315 Toll Bros. of North Carolina III, Inc. North Carolina 23-2993276 Toll Bros. of Tennessee, Inc. Delaware 51-0385724 Toll Brothers Real Estate, Inc. Pennsylvania 23-2417116 Toll CA GP Corp. California 23-2748091 Toll CO GP Corp. Colorado 23-2978190 Toll Corp. Delaware 23-2485860 Toll Finance Corp. Delaware 23-2978196 Toll FL GP Corp. Florida 23-2796288 Toll IL GP Corp. Illinois 23-2967049 Toll Land Corp. No. 6 Pennsylvania 23-2417134 Toll Land Corp. No. 10 Delaware 23-2551776 Toll Land Corp. No. 20 Delaware 23-2551793 Toll Land Corp. No. 43 Delaware 23-2737488 Toll Land Corp. No. 45 Delaware 23-2737050 Toll Land Corp. No. 46 Delaware 23-2731483 Toll Land Corp. No. 47 Delaware 23-2737359 Toll Land Corp. No. 48 Delaware 23-2860557 Toll Land Corp. No. 49 Delaware 23-2860562 Toll Land Corp. No. 50 Delaware 23-2860513 Toll Land Corp. No. 51 Delaware 23-2959185 Toll Land Corp. No. 52 Delaware 23-2966099 Toll Land Corp. No. 53 Delaware 23-2978200 Toll Land Corp. No. 55 Delaware 23-2978124 Toll Land Corp. No. 56 Delaware 23-2978119 Toll Land Corp. No. 58 Delaware 23-3097273 Toll Land Corp. No. 59 Delaware 23-3097278 Toll Land Corp. No. 60 Delaware 23-3097277 Toll Management AZ Corp. Delaware 51-0385727 Toll Management VA Corp. Delaware 51-0385725 Toll MI GP Corp. Michigan 23-2917543 Toll NH GP Corp. New Hampshire 23-3048998 Toll NJX-I Corp. Delaware 51-0413821
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State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Toll NJX-II Corp. Delaware 51-0413826 Toll NV GP Corp. Nevada 23-2928710 Toll NC GP Corp. North Carolina 23-2760759 Toll OH GP Corp. Ohio 23-2878722 Toll PA GP Corp. Pennsylvania 23-2687561 Toll PA II GP Corp. Pennsylvania 03-0395069 Toll Peppertree, Inc. New York 23-2709097 Toll Philmont Corporation Delaware 23-2526635 Toll Realty Holdings Corp. I Delaware 23-2954512 Toll Realty Holdings Corp. II Delaware 23-2954511 Toll Realty Holdings Corp. III Delaware 23-2954510 Toll RI GP Corp. Rhode Island 23-3020194 Toll SC GP Corp. South Carolina 23-3094328 Toll TN GP Corp. Tennessee 23-2886926 Toll TX GP Corp. Delaware 23-2796291 Toll VA GP Corp. Delaware 23-2551790 Toll VA Member Two, Inc. Delaware 51-0385726 Toll Wood Corporation Delaware 23-2533529 Toll YL, Inc. California 23-2898272 Valley Forge Conservation Holding GP Corp. Pennsylvania 73-1636768 Warren Chase, Inc. Delaware 23-2518740 Windsor Development Corp. Pennsylvania 23-2432983 Afton Chase, L.P. Pennsylvania 23-2760770 Audubon Ridge, L.P. Pennsylvania 23-2668976 BBCC Golf, L.P. Pennsylvania 23-2680898 BBCC Investments, L.P. Pennsylvania 23-3051360 Beaumont Chase, L.P. Pennsylvania 23-2910269 Belmont Land, L.P. Virginia 23-2810333 Bennington Hunt, L.P. New Jersey 23-2690596 Bernards Chase, L.P. New Jersey 23-2796287 Binks Estates Limited Partnership Florida 23-2796300 The Bird Estate Limited Partnership Massachusetts 23-2883360 Blue Bell Country Club, L.P. Pennsylvania 23-2668975 Branchburg Ridge, L.P. New Jersey 23-2918996 Brandywine River Estates, L.P. Pennsylvania 23-2838421 Brass Castle Estates, L.P. New Jersey 23-2921715 Brentwood Investments, L.P. Tennessee 01-0616044 Bridle Estates, L.P. Pennsylvania 23-2855510 Broad Run Associates, L.P. Pennsylvania 23-2979479
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State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Buckingham Woods, L.P. Pennsylvania 23-2689274 Bucks County Country Club, L.P. Pennsylvania 23-2878689 CC Estates Limited Partnership Massachusetts 23-2748927 Calabasas View, L.P. California 23-2785219 Charlestown Hills, L.P. New Jersey 23-2855658 Cheltenham Estates Limited Partnership Michigan 23-2968590 Chesterbrooke Limited Partnership New Jersey 23-2485378 Chesterfield Hunt, L.P. New Jersey 23-2855657 Cobblestones at Thornbury, L.P. Pennsylvania 23-2774674 Cold Spring Hunt, L.P. Pennsylvania 23-2702468 Coleman-Toll Limited Partnership Nevada 23-2928708 Concord Chase, L.P. Pennsylvania 23-2897949 Cortlandt Chase, L.P. New York 23-2928875 Delray Limited Partnership Florida 23-2929049 Dolington Estates, L.P. Pennsylvania 23-2760781 Dominion Country Club, L.P. Virginia 23-2984309 Eagle Farm Limited Partnership Massachusetts 23-2760777 Edmunds-Toll Limited Partnership Arizona 23-2815685 Eldorado Country Estates, L.P. Texas 23-2796296 Estates at Autumnwood, L.P. Delaware 23-2709134 The Estates at Brooke Manor Limited Partnership Maryland 23-2740412 Estates at Coronado Pointe, L.P. California 23-2796299 The Estates at Potomac Glen Limited Partnership Maryland 23-2785225 Estates at Princeton Junction, L.P. New Jersey 23-2760779 Estates at Rivers Edge, L.P. New Jersey 23-2748080 Estates at San Juan Capistrano, L.P. California 23-2796301 The Estates at Summit Chase, L.P. California 23-2748089 Fairfax Investment, L.P. Virginia 23-2982190 Fairfax Station Hunt, L.P. Virginia 23-2680894 Fair Lakes Chase, L.P. Virginia 23-2955092 Fairway Mews Limited Partnership New Jersey 23-2621939 Farmwell Hunt, L.P. Virginia 23-2822996 First Brandywine Partners, L.P. Delaware 51-0385730 Franklin Oaks Limited Partnership Massachusetts 23-2838925 Freehold Chase, L.P. New Jersey 23-2743988 Great Falls Hunt, L.P. Virginia 23-2719371 Great Falls Woods, L.P. Virginia 23-2963544 Greens at Waynesborough, L.P. Pennsylvania 23-2740013
iv
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Greenwich Chase, L.P. New Jersey 23-2709793 Greenwich Station, L.P. New Jersey 23-2816336 Hockessin Chase, L.P. Delaware 23-2944970 Holland Ridge, L.P. New Jersey 23-2785227 Holliston Hunt Limited Partnership Massachusetts 23-2922701 Hopewell Hunt, L.P. New Jersey 23-2838289 Huckins Farm Limited Partnership Massachusetts 23-2740411 Hunter Mill, L.P. Virginia 23-2711430 Hunterdon Chase, L.P. New Jersey 23-2774673 Hunterdon Ridge, L.P. New Jersey 23-2944965 Huntington Estates Limited Partnership Connecticut 23-2855662 Hurley Ridge Limited Partnership Maryland 23-2954935 Independence Hill, L.P. New Jersey 23-2872609 Kensington Woods Limited Partnership Massachusetts 23-2701194 Knolls of Birmingham, L.P. Pennsylvania 23-2855656 Lakeridge, L.P. Pennsylvania 23-2740012 Lakeway Hills Properties, L.P. Texas 23-2838579 Laurel Creek, L.P. New Jersey 23-2796297 Loudoun Valley Associates, L.P. Virginia 23-3025878 Mallard Lakes, L.P. Texas 23-2796298 Manalapan Hunt, L.P. New Jersey 23-2806323 Maple Creek Limited Partnership Michigan 38-3453419 Marshallton Chase, L.P. Pennsylvania 23-2855525 Mill Road Estates, L.P. Pennsylvania 23-2774670 Montgomery Chase, L.P. New Jersey 23-2745356 Montgomery Oaks, L.P. New Jersey 23-2796292 Moorestown Hunt, L.P. New Jersey 23-2810335 Mount Kisco Chase, L.P. New York 23-2796641 NC Country Club Estates Limited Partnership North Carolina 23-2917299 Newport Ridge Limited Partnership Michigan 38-3413877 Newtown Chase Limited Partnership Connecticut 23-2818660 Northampton Crest, L.P. Pennsylvania 23-2944980 Northampton Preserve, L.P. Pennsylvania 23-2901212 Patriots, L.P. New Jersey 23-2941041 The Preserve Limited Partnership North Carolina 23-2785224 The Preserve at Annapolis Limited Partnership Maryland 23-2838510 The Preserve at Boca Raton Limited Partnership Florida 23-2810339 Preston Village Limited Partnership North Carolina 23-2806570 Princeton Hunt, L.P. New Jersey 23-2747998
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State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Providence Limited Partnership North Carolina 23-2810338 Providence Hunt, L.P. Pennsylvania 23-2680892 Providence Plantation Limited Partnership North Carolina 23-2855661 Regency at Dominion Valley, L.P. Virginia 45-0497498 River Crossing, L.P. Pennsylvania 23-2855516 Rolling Greens, L.P. New Jersey 23-2855583 Rose Hollow Crossing Associates Pennsylvania 23-2253629 Rose Tree Manor, L.P. Pennsylvania 23-2699972 Seaside Estates Limited Partnership Florida 23-2870057 Shrewsbury Hunt Limited Partnership Massachusetts 23-2912930 Silverman-Toll Limited Partnership Michigan 23-2986323 Somers Chase, L.P. New York 23-2855511 Somerset Development Limited Partnership North Carolina 23-2785223 South Riding, L.P. Virginia 23-2994369 South Riding Partners, L.P. Virginia 23-2861890 Southlake Woods, L.P. Texas 23-2869081 Southport Landing Limited Partnership Connecticut 23-2784609 Springton Pointe, L.P. Pennsylvania 23-2810340 Stone Mill Estates, L.P. Pennsylvania 23-3013974 Stoney Ford Estates, L.P. Pennsylvania 23-2882087 Swedesford Chase, L.P. Pennsylvania 23-2939504 TBI/Heron Bay Limited Partnership Florida 23-2928874 TBI/Naples Limited Partnership Florida 23-2883354 TBI/Palm Beach Limited Partnership Florida 23-2891601 TB Proprietary, L.P. Delaware 23-3070158 Tenby Hunt, L.P. Delaware 23-2682946 Thornbury Knoll, L.P. Pennsylvania 23-2668410 Timber Ridge Investment Limited Partnership Michigan 38-3413876 Toll at Brier Creek Limited Partnership North Carolina 23-2954264 Toll at Daventry Park, L.P. Ohio 23-2897947 Toll at Payne Ranch, L.P. California 23-2833118 Toll at Potomac Woods, L.P. Virginia 23-2660429 Toll at Princeton Walk, L.P. New Jersey 23-2879954 Toll at Westlake, L.P. New Jersey 23-2963549 Toll at Whippoorwill, L.P. New York 23-2888554 Toll Bros. of Tennessee, L.P. Tennessee 51-0386723 Toll Brothers Maryland II Limited Partnership Maryland 23-3027594 Toll CA, L.P. California 23-2963547 Toll CA II, L.P. California 23-2838417
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State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Toll CA III, L.P. California 23-3031827 Toll CA IV, L.P. California 23-3029688 Toll CA V, L.P. California 23-3091624 Toll CA VI, L.P. California 23-3091657 Toll CO, L.P. Colorado 23-2978294 Toll CT Limited Partnership Connecticut 23-2963551 Toll CT II Limited Partnership Connecticut 23-3041974 Toll CT Westport Limited Partnership Connecticut 23-3048964 Toll-Dublin, L.P. California 23-3070669 Toll Estero Limited Partnership Florida 72-1539292 Toll FL Limited Partnership Florida 23-3007073 Toll Ft. Myers Limited Partnership Florida 82-0559443 Toll IL, L.P. Illinois 23-2963552 Toll IL II, L.P. Illinois 23-3041962 Toll IL III, L.P. Illinois 03-0382404 Toll IL HWCC, L.P. Illinois 75-2985312 Toll Land Limited Partnership Connecticut 23-2709099 Toll Land IV Limited Partnership New Jersey 23-2737490 Toll Land V Limited Partnership New York 23-2796637 Toll Land VI Limited Partnership New York 23-2796640 Toll Land VII Limited Partnership New York 23-2775308 Toll Land VIII Limited Partnership New York 23-2788695 Toll Land IX Limited Partnership Virginia 23-2939502 Toll Land X Limited Partnership Virginia 23-2774670 Toll Land XI Limited Partnership New Jersey 23-2796302 Toll Land XII Limited Partnership New York 23-2796303 Toll Land XIII Limited Partnership New York 23-2796304 Toll Land XIV Limited Partnership New York 23-2796295 Toll Land XV Limited Partnership Virginia 23-2810342 Toll Land XVI Limited Partnership New Jersey 23-2810344 Toll Land XVII Limited Partnership Connecticut 23-2815064 Toll Land XVIII Limited Partnership Connecticut 23-2833240 Toll Land XIX Limited Partnership California 23-2833171 Toll Land XX Limited Partnership California 23-2838991 Toll Land XXI Limited Partnership Virginia 23-2865738 Toll Land XXII Limited Partnership California 23-2879949 Toll Land XXIII Limited Partnership California 23-2879946 Toll Land XXV Limited Partnership New Jersey 23-2867694 Toll Land XXVI Limited Partnership Ohio 23-2880687
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State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Toll Land XXVII Limited Partnership Delaware 23-2991749 Toll MD Limited Partnership Maryland 23-2963546 Toll MD II Limited Partnership Maryland 23-2978195 Toll MD III Limited Partnership Maryland 23-3044366 Toll MD IV Limited Partnership Maryland 71-0890813 Toll MI Limited Partnership Michigan 23-2999200 Toll MI II Limited Partnership Michigan 23-3015611 Toll MI III Limited Partnership Michigan 23-3097778 Toll Naples Limited Partnership Florida 73-1657686 Toll Naval Associates Pennsylvania 23-2454576 Toll NH Limited Partnership New Hampshire 23-3048999 Toll NJ, L.P. New Jersey 23-2963550 Toll NJ II, L.P. New Jersey 23-2991953 Toll NJ III, L.P. New Jersey 23-2993263 Toll NJ IV, L.P. New Jersey 23-3038827 Toll NJ V, L.P. New Jersey 23-3091620 Toll NJ VI, L.P. New Jersey 23-3098583 Toll Northville Limited Partnership Michigan 23-2918130 Toll Northville Golf Limited Partnership Michigan 23-2918224 Toll NV Limited Partnership Nevada 23-3010602 Toll PA, L.P. Pennsylvania 23-2879956 Toll PA II, L.P. Pennsylvania 23-3063349 Toll PA III, L.P. Pennsylvania 23-3097666 Toll PA IV, L.P. Pennsylvania 23-3097672 Toll PA V, L.P. Pennsylvania 03-0395087 Toll PA VI, L.P. Pennsylvania 47-0858909 Toll PA VII, L.P. Pennsylvania 68-0533037 Toll Peppertree, L.P. New York 23-2707709 Toll Reston Associates, L.P. Delaware 23-3016263 Toll RI, L.P. Rhode Island 23-3020191 Toll RI II, L.P. Rhode Island 27-0043852 Toll SC, L.P. South Carolina 23-3094632 Toll SC II, L.P. South Carolina 82-0574725 Toll TX, L.P. Texas 23-2984310 Toll TX II, L.P. Texas 23-3090949 Toll VA, L.P. Virginia 23-2952674 Toll VA II, L.P. Virginia 23-3001131 Toll VA IV, L.P. Virginia 75-2972033 Toll VA V, L.P. Virginia 47-0887401
viii
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Toll Venice Limited Partnership Florida 71-0902794 Toll YL, L.P. California 23-3016250 Toll YL II, L.P. California 80-0014182 Trumbull Hunt Limited Partnership Connecticut 23-2855529 Uwchlan Woods, L.P. Pennsylvania 23-2838958 Valley Forge Conservation Holding, L.P. Pennsylvania 42-1537902 Valley Forge Woods, L.P. Pennsylvania 23-2699971 Valley View Estates Limited Partnership Massachusetts 23-2760768 Village Partners, L.P. Pennsylvania 81-0594073 Waldon Preserve Limited Partnership Michigan 38-3312737 Warwick Greene, L.P. Pennsylvania 23-2968960 Warwick Woods, L.P. Pennsylvania 23-2838950 Washington Greene Development, L.P. New Jersey 23-2815640 West Amwell Limited Partnership New Jersey 23-2570825 Whiteland Woods, L.P. Pennsylvania 23-2833125 Wichita Chase, L.P. Texas 23-2855660 Willowdale Crossing, L.P. Pennsylvania 23-2879951 Wilson Concord, L.P. Tennessee 23-2887824 Woodbury Estates, L.P. New Jersey 23-2855523 The Woods at Highland Lakes, L.P. Ohio 23-2948699 The Woods at Long Valley, L.P. New Jersey 23-2889640 The Woods at Muddy Branch Limited Partnership Maryland 23-2810336 Wrightstown Hunt, L.P. Pennsylvania 23-2838487 Yardley Estates, L.P. Pennsylvania 23-2691658 Belmont Country Club I LLC Virginia 23-2810333** Belmont Country Club II LLC Virginia 23-2810333** Big Branch Overlook L.L.C. Maryland 23-2978195** Brier Creek Country Club I LLC North Carolina 23-2954264** Brier Creek Country Club II LLC North Carolina 23-2954264** C.B.A.Z. Construction Company LLC Arizona 51-0385729** C.B.A.Z, Holding Company LLC Delaware 51-0385729 Creeks Farm L.L.C. Maryland 23-2978195** Dominion Valley Country Club I LLC Virginia 23-2984309** Dominion Valley Country Club II LLC Virginia 23-2984309** ELB Investments I LLC Illinois 23-2963552** ELB Investments II LLC Illinois 23-2963552** FC Investments I LLC Massachusetts 23-2838925** FC Investments II LLC Massachusetts 23-2838925** Feys Property LLC Maryland 23-2978195**
** Uses Employment Identification Number used by its sole member. ix
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- First Brandywine LLC I Delaware 23-2485787** First Brandywine LLC II Delaware 23-2485787** Frenchman's Reserve Realty, LLC Florida 23-2417123** Golf I Country Club Estates at Moorpark LLC California 23-2963547** Golf II Country Club Estates at Moorpark LLC California 23-2963547** High Point at Hopewell, LLC New Jersey 23-3098583** Hunts Bluff LLC Maryland 23-2978195** Long Meadows TBI, LLC Maryland 23-3044366** Martin County Improvement Association LLC Florida 23-2417123** Mizner Realty, L.L.C. Florida 23-2417123** Mountain View Country Club I LLC California 23-3091624** Mountain View Country Club II LLC California 23-3091624** Naples Lakes Country Club, L.L.C. Florida 23-2883354** Naples TBI Realty, LLC Florida 23-2417123** Northville Hills Golf Club LLC Michigan 23-2918224** Nosan & Silverman Homes LLC Michigan 38-3208312 Palm Cove Golf & Yacht Club I LLC Florida 23-3007073** Palm Cove Golf & Yacht Club II LLC Florida 23-3007073** Palm Cove Marina I LLC Florida 23-3007073** Palm Cove Marina II LLC Florida 23-3007073** Regency at Denville LLC New Jersey 23-2810344** Regency at Dominion Valley LLC Virginia 23-2984309** The Regency Golf Club I LLC Virginia 23-2984309** The Regency Golf Club II LLC Virginia 23-2984309** RiverCrest Sewer Company, LLC Pennsylvania 23-3097672** Sapling Ridge, LLC Maryland 23-2978195** South Riding Realty LLC Virginia 23-2861890** SR Amberlea LLC Virginia 23-2861890** Toll Brothers Realty Michigan II LLC Michigan 23-2417123** Toll Cedar Hunt LLC Virginia 23-2994369** Toll DE X, LLC Delaware 23-3098760 Toll-Dublin, LLC California 23-3070669** Toll Equipment, L.L.C. Delaware 23-2417123** Toll NJ I, L.L.C. New Jersey 23-3091620** Toll NJ II, L.L.C. New Jersey 23-3091620** Toll Realty L.L.C. Florida 23-2417123** Toll Reston Associates, L.L.C. Delaware 23-2551790** Toll VA L.L.C Delaware 51-0385728** Toll VA III L.L.C. Virginia 23-2417123** Virginia Construction Co. I, LLC Virginia 23-2417123** Virginia Construction Co. II, LLC Virginia 23-2417123**
** Uses Employment Identification Number used by its sole member. x The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. SUBJECT TO COMPLETION DATED JUNE 13, 2003 PROSPECTUS [graphic omitted] OFFER TO EXCHANGE $300,000,000 Toll Brothers Finance Corp. 6.875% Senior Notes due 2012 Guaranteed on a Senior Basis by Toll Brothers, Inc. and Certain of its Subsidiaries Which Have Been Registered Under the Securities Act of 1933 for any and all of the Outstanding Toll Brothers Finance Corp. 6.875% Senior Notes due 2012 The Exchange Notes o The terms of the exchange notes we are issuing will be substantially identical to the outstanding notes that we issued on November 22, 2002, except for the elimination of some transfer restrictions, registration rights and additional interest payments relating to the outstanding notes. o Interest on the exchange notes will accrue at the rate of 6.875% per year, payable on May 15 and November 15 of each year, beginning May 15, 2003, and the notes will mature on November 15, 2012. o The exchange notes will be unsecured and will rank equally with all our other unsecured and unsubordinated indebtedness. o We may redeem some or all of the exchange notes at any time at the prices described under the heading "Description of Exchange Notes -- Optional Redemption." The exchange notes will not have the benefit of any sinking fund. o The exchange notes are expected to be listed on the New York Stock Exchange. Material Terms of the Exchange Offer o The exchange offer expires at 5:00 p.m., New York City time, on ___________, 2003, unless extended. o Our completion of the exchange offer is subject to customary conditions, which we may waive. o Upon our completion of the exchange offer, all outstanding notes that are validly tendered and not withdrawn will be exchanged for an equal principal amount of exchange notes that are registered under the Securities Act of 1933. o Tenders of outstanding notes may be withdrawn at any time before the expiration of the exchange offer. o The exchange of exchange notes for outstanding notes will not be a taxable exchange for U.S. Federal income tax purposes. o We will not receive any proceeds from the exchange offer. For a discussion of factors that you should consider before participating in this exchange offer, see "Risk Factors" beginning on page 10 of this prospectus. ---------------- Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved or passed on the adequacy or accuracy of this prospectus or the investment merits of the notes offered hereby. Any representation to the contrary is a criminal offense. ---------------- The date of this prospectus is _________ 2003 You should rely only on the information contained or incorporated by reference in this prospectus or elsewhere in the registration statement of which this prospectus is a part. We have not authorized anyone to provide you with different information. This prospectus does not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which it relates, nor does this prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. ---------------- TABLE OF CONTENTS
Page ---- Documents Incorporated by Reference ..................................... i Available Information ................................................... ii Summary ................................................................. 1 Risk Factors ............................................................ 10 Forward-Looking Statements .............................................. 15 Use of Proceeds ......................................................... 17 Capitalization .......................................................... 18 Selected Consolidated Financial Information and Operating Data .......... 19 The Guarantors. ......................................................... 20 Description of Other Indebtedness ....................................... 23 The Exchange Offer ...................................................... 23 Description of Exchange Notes ........................................... 35 United States Federal Income Tax Considerations ......................... 48 Plan of Distribution .................................................... 49 Legal Matters ........................................................... 50 Experts ................................................................. 51
---------------- DOCUMENTS INCORPORATED BY REFERENCE The Securities and Exchange Commission (the "Commission") allows us to "incorporate by reference" into this prospectus the information Toll Brothers, Inc. files with the Commission. This means that we are permitted to disclose important information to you by referring you to other documents Toll Brothers, Inc. has filed with the Commission. We incorporate by reference in two ways. First, we list certain documents that Toll Brothers, Inc. has filed with the Commission. The information in these documents is considered part of this prospectus. Second, Toll Brothers, Inc. expects to file additional documents with the Commission in the future. The information in these documents, when filed, will update and supersede the current information included in or incorporated by reference in this prospectus. You should consider any statement contained in this prospectus or in a document which is incorporated by reference into this prospectus to be modified or superseded to the extent that the statement is modified or superseded by another statement contained in a later dated document that constitutes a part of this prospectus or is incorporated by reference into this prospectus. You should consider any statement which is so modified or superseded to be a part of this prospectus only as so modified or superseded. We incorporate by reference in this prospectus all the documents listed below and any filings Toll Brothers, Inc. makes with the Commission under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 after the date of this prospectus until completion of the exchange offer: o Annual Report on Form 10-K of Toll Brothers, Inc. filed with the Commission for the fiscal year ended October 31, 2002; o Quarterly Reports on Form 10-Q of Toll Brothers, Inc. filed with the Commission for the quarters ended January 31, 2003 and April 30, 2003; and o Current Reports on Form 8-K of Toll Brothers, Inc. filed with the Commission on November 15, 2002, November 18, 2002, November 22, 2002, November 27, 2002, March 26, 2003, March 28, 2003, May 8, 2003 and May 28, 2003. i We will deliver, without charge, to anyone receiving this prospectus, upon written or oral request, a copy of any document incorporated by reference in this prospectus but not delivered with this prospectus, but the exhibits to those documents will not be delivered unless they have been specifically incorporated by reference. Requests for these documents should be made to: Director of Investor Relations, Toll Brothers, Inc., 3103 Philmont Avenue, Huntingdon Valley, PA 19006, (215) 938-8000. We will also make available to the holders of the securities offered by this prospectus annual reports which will include audited financial statements of Toll Brothers, Inc. and its consolidated subsidiaries, including Toll Brothers Finance Corp. We do not expect that Toll Brothers Finance Corp. will be required to make filings with the Commission under Section 15(d) of the Securities Exchange Act of 1934. To obtain timely delivery from the Company of documents incorporated by reference in this prospectus, you must request the information no later than five business days prior to the expiration of the exchange offer. The exchange offer will expire on __________, 2003, unless extended. You should rely only on the information incorporated by reference or provided in this prospectus and any supplement or elsewhere in the registration statement of which this prospectus is a part. We have not authorized anyone else to provide you with different information. AVAILABLE INFORMATION This prospectus is part of a registration statement on Form S-4 that we have filed with the Commission under the Securities Act. This prospectus does not contain all of the information set forth in the registration statement. For further information about us and the exchange notes, you should refer to the registration statement. This prospectus summarizes material provisions of contracts and other documents to which we refer you. Since this prospectus may not contain all of the information that you may find important, you should review the full text of these documents. We have filed these documents as exhibits to our registration statement. Toll Brothers, Inc. is subject to the informational requirements of the Securities Exchange Act of 1934. In accordance with those requirements, Toll Brothers, Inc. files annual, quarterly and special reports, proxy statements and other information with the Commission. You can read and copy any document Toll Brothers, Inc. files with the Commission at the Commission's public reference room at the following location: Judiciary Plaza 450 Fifth Street, N.W. Washington, D.C. 20549 You may obtain information on the operation of the Commission's public reference room by calling the Commission at 1-800-SEC-0330. The Commission filings of Toll Brothers, Inc. are also available to the public from the Commission's Internet website at http://www.sec.gov. We also make available free of charge on our website, at http://www.tollbrothers.com, all materials that we file electronically with the SEC, including our annual report on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to these reports as soon as reasonably practicable after such materials are electronically filed with, or furnished to, the SEC. In addition, the common stock of Toll Brothers, Inc. is listed on the New York Stock Exchange and similar information concerning Toll Brothers, Inc. can be inspected and copied at the New York Stock Exchange, 20 Broad Street, 7th Floor, New York, New York 10005. The common stock of Toll Brothers, Inc. is also listed on the Pacific Exchange, but the Pacific Exchange does not have a public reference room for review of Commission filings of its listed companies. ii SUMMARY The following summary highlights selected information from this document and may not contain all the information that may be important to you. This summary is qualified in its entirety by the more detailed information included elsewhere or incorporated by reference in this prospectus. Except as noted in sections of this prospectus entitled "Summary--The Exchange Offer," "Summary--The Exchange Notes," "The Exchange Offer," and "Description of Exchange Notes," or unless otherwise expressly stated or the context requires, all references to "we," "us," "our," and all similar references used in this prospectus are to Toll Brothers, Inc. and its consolidated subsidiaries, including Toll Brothers Finance Corp. and the subsidiary guarantors. Throughout this prospectus, we use the terms "old notes" and "outstanding notes" to refer to the currently outstanding 6.875% Senior Notes due 2012 of Toll Brothers Finance Corp. for which the exchange notes are being offered for exchange. Unless otherwise stated or the context otherwise requires, references to "senior notes" refers to the outstanding old notes and the exchange notes, collectively. Toll Brothers, Inc. Overview Toll Brothers, Inc., through its subsidiaries, designs, builds, markets and arranges financing for single-family detached and attached homes in middle- income and high-income residential communities. We cater to the move-up, empty-nester and age-qualified home buyer. We currently conduct operations in 21 states and six regions around the United States. Our communities are generally located on land we have developed or acquired fully approved and, in some cases, improved. We market our homes primarily to middle-income and upper-income buyers. We emphasize high quality construction and customer satisfaction. We also operate our own land development, architectural, engineering, mortgage, title, golf course development and management, security monitoring, landscape, cable T.V., broadband Internet access, lumber distribution, house component assembly and manufacturing operations. At October 31, 2002, we were operating in 243 communities containing over 21,800 home sites which we owned or controlled through options. Of the 243 communities, 170 were offering homes for sale, 34 had not yet opened for sale and 39 were sold out but all home deliveries had not been completed. At October 31, 2002, we also owned or controlled through options approximately 19,000 home sites in 157 proposed communities. We expect to have approximately 185 selling communities by October 31, 2003. Of the approximately 40,800 lots owned or controlled through options at October 31, 2002, we owned approximately 25,800 of them. At October 31, 2002, we were offering single-family detached homes at prices, excluding customized options, generally ranging from $233,000 to $1,493,000 with an average base sales price of $501,000. We were offering single-family attached homes at prices, excluding customized options, generally ranging from $166,000 to $622,000, with an average base sales price of $322,000. On average, homebuyers added approximately 21% in options and lot premiums to the base price of homes delivered in fiscal 2002. For the fiscal year ended October 31, 2002, revenues from housing sales were approximately $2.28 billion (4,430 homes) as compared to $2.18 billion (4,358 homes) for fiscal 2001. New sales contracts were approximately $2.75 billion (5,113 homes) in fiscal 2002 as compared to $2.17 billion (4,366 homes) in fiscal 2001. In recognition of our achievements, we have received numerous awards from national, state and local homebuilder publications and associations. We are the only publicly traded national homebuilder to have won all three of the industry's highest honors: America's Best Builder (1996), the National Housing Quality Award (1995), and Builder of the Year (1988). 1 Recent Developments For the six months ended April 30, 2003, revenues from housing sales were $1.16 billion (2,145 homes), 13% higher than the $1.02 billion (2,065 homes) in revenues from housing sales during the six-month period ended April 30, 2002. New contracts signed for the six months ended April 30, 2003 were $1.51 billion (2,733 homes), a 9% increase over the $1.39 billion (2,634 homes) in new contracts signed during the same period of fiscal 2002. For the three months ended April 30, 2003, revenues from housing sales were $601 million (1,109 homes), 11% higher than the $539 million (1,086 homes) in revenues from housing sales during the three-month period ended April 30, 2002. New contracts signed for the three months ended April 30, 2003 were $927 million (1,667 homes), a 3% increase over the $902 million (1,706 homes) in new contracts signed during the same period of fiscal 2002. At April 30, 2003, we were selling from 176 communities as compared to 166 communities at April 30, 2002 and 170 communities at October 31, 2002. We expect to have approximately 185 communities open for sale by October 31, 2003. Our backlog of homes under contract at April 30, 2003 was $2.21 billion (3,937 homes) as compared to $1.77 billion (3,271 homes) at April 30, 2002. We expect to deliver substantially all homes in backlog at April 30, 2003 by April 30, 2004. Based on the size of our current backlog, the number of homes delivered during the six months ended April 30, 2003, the continued demands for our product and the increased number of communities from which we are currently operating, we believe that we will deliver approximately 5,000 homes in fiscal 2003 and expect the average delivered price of those homes will be between $535,000 and $540,000. Executive Offices Our executive offices are located at 3103 Philmont Avenue, Huntingdon Valley, Pennsylvania 19006. Our telephone number is (215) 938-8000. Toll Brothers Finance Corp. Toll Brothers Finance Corp. is an indirect, wholly-owned subsidiary of Toll Brothers, Inc. Toll Brothers Finance Corp. generates no operating revenues and will not have any independent operations other than the financing of other subsidiaries of Toll Brothers, Inc. by lending the proceeds of the old notes and the proceeds of any borrowings Toll Brothers Finance Corp. may make in the future. 2 Summary--The Exchange Offer The following is a brief summary of certain terms of this exchange offer. For a more complete description of the terms of the exchange offer, see "The Exchange Offer" in this prospectus. As used in this "Summary--The Exchange Offer" section, all references to "we," "us," "our," and all similar references are to Toll Brothers Finance Corp. The Exchange Offer...................... The exchange offer relates to the exchange of up to $300 million aggregate principal amount of our 6.875% Senior Notes due 2012 that have been registered under the Securities Act of 1933 for an equal aggregate principal amount of our outstanding unregistered 6.875% Senior Notes due 2012. On November 22, 2002, we issued and sold $300 million in aggregate principal amount of these old notes in a private placement. The form and terms of the exchange notes are substantially the same as the form and terms of the old notes, except that the exchange notes have been registered under the Securities Act and will not bear legends restricting their transfer. We issued the old notes under an indenture which grants you a number of rights. The exchange notes also will be issued under that indenture and you will have the same rights under the indenture as the holders of the old notes. See "Description of Exchange Notes." We are offering to exchange $1,000 principal amount of our exchange notes for each $1,000 principal amount of old notes. Accrued Interest on the Exchange Notes.......................... Interest on the exchange notes will accrue from the last interest payment date on which interest was paid on the old notes or, if no interest was paid on the old notes, from the date of issuance of the old notes, which was November 22, 2002. Holders whose old notes are accepted for exchange will be deemed to have waived the right to receive any interest accrued on the old notes. No Minimum Condition.................... We are not conditioning the exchange offer on the tender of any minimum principal amount of old notes. Expiration Date......................... The exchange offer will expire at 5:00 p.m., New York City time, on ___________________, 2003 unless we decide to extend the exchange offer. Withdrawal Rights....................... You may withdraw your tender at any time before the exchange offer expires. Conditions to the Exchange Offer................................... The exchange offer is subject to customary conditions, which we may waive. We currently anticipate that each of the conditions will be satisfied and that we will not need to waive any conditions. We reserve the right to terminate or amend the exchange offer at any time before the expiration date if any of the conditions occurs. For additional information, see the section "The Exchange Offer" in this prospectus under the subheading "Certain Conditions to the Exchange Offer." Procedures for Tendering Old Notes............................... If you are a holder of old notes who wishes to accept the exchange offer, you must: o complete, sign and date the accompanying letter of transmittal, or a facsimile of the letter of transmittal, and mail 3 or otherwise deliver the letter of transmittal, together with your old notes, to the exchange agent at the address provided in the section "The Exchange Offer" in this prospectus under the subheading "Exchange Agent"; or o arrange for The Depository Trust Company to transmit certain required information, including an agent's message forming part of a book-entry transfer in which you agree to be bound by the terms of the letter of transmittal, to the exchange agent in connection with a book-entry transfer. Resale Without Further Registration............................ We believe that you may resell or otherwise transfer the exchange notes that you receive in the exchange offer without complying with the registration and prospectus delivery provisions of the Securities Act so long as you are not a broker-dealer and you meet the following conditions: o you are not an "affiliate" of ours within the meaning of Rule 405 of the Securities Act; o you are acquiring the exchange notes issued in the exchange offer in the ordinary course of your business; and o you have no arrangement or understanding with any person to participate in the distribution of the exchange notes. By signing the letter of transmittal and tendering your old notes, you will be making representations to this effect. You may incur liability under the Securities Act if: o any of the representations listed above are not true; and o you transfer any exchange note issued to you in the exchange offer without complying with the registration and prospectus delivery requirements of the Securities Act, unless the transfer otherwise meets an exemption from the registration requirements under the Securities Act. We do not assume, or indemnify you against, liability under these circumstances which means that we will not protect you from any loss you incur as a result of this liability. Restrictions on Resale by Broker-Dealers.......................... Each broker-dealer that has received exchange notes for its own account in exchange for old notes that were acquired as a result of market- making or other trading activities must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of the exchange notes. A broker-dealer may use this prospectus in connection with any resale for a period of 270 days after the end of the exchange offer. Special Procedures for Beneficial Owners....................... If you beneficially own old notes registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender your old notes in the exchange offer, you should contact the registered holder promptly and instruct it to tender on your behalf. If you wish to tender on your own behalf, you must, prior to completing and executing the letter of transmittal and delivering your old notes, either arrange to have your old notes registered in your name or obtain a properly 4 completed bond power from the registered holder. The transfer of registered ownership may take considerable time. Guaranteed Delivery Procedures.............................. If you wish to tender your old notes and time will not permit your required documents to reach the exchange agent by the expiration date, or the procedures for book- entry transfer cannot be completed on time, you may tender your old notes according to the guaranteed delivery procedures described in the section "The Exchange Offer" in this prospectus under the subheading "Procedures for Tendering Old Notes." Acceptance of Old Notes and Delivery of Exchange Notes.............. We will accept for exchange all old notes which are properly tendered in the exchange offer prior to 5:00 p.m., New York City time, on the expiration date. The exchange notes issued in the exchange offer will be delivered promptly following the expiration date. For additional information, see the section "The Exchange Offer" in this prospectus under the subheading "Acceptance of Old Notes for Exchange; Delivery of Exchange Notes." Use of Proceeds......................... We will not receive any proceeds from the issuance of exchange notes in the exchange offer. We will pay for our expenses incident to the exchange offer. Federal Income Tax...................... The exchange of exchange notes for old notes in the exchange offer will not be a taxable event for federal income tax purposes. For additional information, see the section "United Stated Federal Income Tax Considerations" in this prospectus. Effect on Holders of Old Notes................................... As a result of this exchange offer, we will have fulfilled a covenant contained in the registration rights agreement dated as of November 22, 2002 by and among Toll Brothers Finance Corp., Toll Brothers, Inc. and each of the initial purchasers named in the agreement and, accordingly, there will be no increase in the interest rate on the old notes. If you do not tender your old notes in the exchange offer: o you will continue to hold the old notes and will be entitled to all the rights and limitations applicable to the old notes under the indenture governing the notes, except for any rights under the registration rights agreement that terminate as a result of the completion of the exchange offer; and o you will not have any further registration or exchange rights and your old notes will continue to be subject to restrictions on transfer. Accordingly, the trading market for untendered old notes could be adversely affected. Exchange Agent.......................... Bank One Trust Company, National Association is serving as exchange agent in connection with the exchange offer. 5 Summary--The Exchange Notes The following is a brief summary of certain terms of the exchange notes. For a more complete description of the terms of the exchange notes, see "Description of Exchange Notes" in this prospectus. As used in this "Summary--The Exchange Notes" section, all references to "we," "us," "our," and all similar references are to Toll Brothers Finance Corp. Terms of the Exchange Notes: Issuer.................................. Toll Brothers Finance Corp. Exchange Notes Offered.................. Up to $300 million principal amount of 6.875% Senior Notes due 2012. The form and terms of the exchange notes will be the same as the form and terms of the old notes, except that: o the exchange notes will have been registered under the Securities Act, will not contain transfer restrictions, and will not bear legends restricting their transfer; o the exchange notes will not contain terms providing for the payment of additional interest under circumstances relating to our obligation to file and cause to be effective a registration statement; o the exchange notes will be represented by one or more global notes in book entry form; and o the exchange notes will be issuable in denominations of $1,000 and multiples thereof. Interest................................ Interest will accrue on the exchange notes at a rate of 6.875% per annum and will be payable semi-annually in arrears on May 15 and November 15 of each year, commencing on May 15, 2003. Interest will accrue from November 22, 2002, the date of issuance of the old notes, or, if interest has already been paid, from the date it was most recently paid. Maturity Date........................... November 15, 2012. Ranking................................. The exchange notes will rank equally with all of our unsecured and unsubordinated indebtedness. The exchange notes will be: o structurally subordinated to the prior claims of creditors, including trade creditors, of the subsidiaries of Toll Brothers, Inc. that are not guarantors of the exchange notes, the aggregate amount of which claims was approximately $108 million at April 30, 2003; and o effectively subordinated to the secured indebtedness of the guarantors of the exchange notes, which indebtedness is comprised principally of indebtedness secured by purchase money mortgages on some of their respective real property, the aggregate principal amount of which indebtedness was approximately $42.8 million at April 30, 2003. For information regarding the ranking of the guarantees being issued by Toll Brothers, Inc. and its guarantor subsidiaries, see "Guarantees" in this "Summary--The Exchange Notes." Guarantees.............................. Payment of principal and interest on the exchange notes will be fully and unconditionally guaranteed, jointly and severally, by Toll Brothers, Inc. and all of its subsidiaries that guarantee its current bank credit facilities. Each guarantee will rank equally 6 with all other unsecured and unsubordinated indebtedness of the entity giving the guarantee. At April 30, 2003, these guarantors had approximately $42.8 million aggregate principal amount of secured indebtedness comprised principally of indebtedness secured by purchase money mortgages on some of their respective real property for borrowed money outstanding, which indebtedness will rank senior to their guarantees of the exchange notes. In addition, Toll Brothers, Inc.'s guarantee will be structurally subordinated to the prior claims of creditors, including trade creditors, of its subsidiaries that are not guarantors of the exchange notes, the aggregate amount of which claims was approximately $108 million at April 30, 2003. Certain subsidiaries of Toll Brothers, Inc. which had guaranteed the old notes at the time of their issuance have since been merged into other guarantor entities, have been dissolved or are not guarantors under the bank credit facilities and will not be guarantors of the exchange notes. Certain other subsidiaries that had not guaranteed the old notes will guarantee the exchange notes. Optional Redemption..................... We may redeem any or all of the exchange notes at any time at a redemption price equal to the greater of (a) 100% of the principal amount of the exchange notes being redeemed and (b) the sum of the present values of the remaining scheduled payments of principal and interest on the exchange notes being redeemed, discounted to the redemption date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury rate plus 45 basis points, plus, in each case, accrued and unpaid interest on the exchange notes to the redemption date. Sinking Fund............................ None. Denominations........................... $1,000 and integral multiples thereof. Use of Proceeds......................... We will not receive any cash proceeds from the exchange offer. Absence of Market for the Exchange Notes.......................... The exchange notes are a new issue of security with no established trading market. While we expect to list the exchange notes on the New York Stock Exchange, we cannot assure you that an active trading market for the exchange notes will develop, or that if one does develop, it will be maintained. General Indenture Provisions Applicable to the Exchange Notes: No Limit on Debt........................ Except as noted below under "Certain Covenants," the indenture governing the exchange notes will not limit the amount of debt that we may issue or provide holders any protection should we be involved in a highly leveraged transaction. We are a guarantor, along with each of the guarantors of the exchange notes, of a $540 million unsecured revolving credit facility of First Huntingdon Finance Corp., a wholly-owned, indirect subsidiary of Toll Brothers, Inc., which facility extends to March 2006. At April 30, 2003, there were no borrowings outstanding under this facility and approximately $82.7 million of letters of credit were outstanding under the facility. In addition, we, along 7 with each of the guarantors of the exchange notes, are a guarantor of First Huntingdon Finance Corp.'s bank term loan, which loan is repayable in July 2005. Certain Covenants....................... The indenture governing the exchange notes contains covenants that, among other things, will limit our ability and the ability of Toll Brothers, Inc. and some of its subsidiaries to: o issue, assume or guarantee certain additional secured indebtedness; and o engage in sale and lease-back transactions. These covenants are subject to important exceptions and qualifications, which are described under the heading "Description of Exchange Notes" in this prospectus. Events of Default....................... Each of the following is an event of default under the indenture governing the exchange notes: o our failure for 30 days to pay interest when due on the exchange notes; o our failure to pay principal of or premium, if any, on the exchange notes when due; o our failure or the failure of Toll Brothers, Inc. or any guarantor which is a significant subsidiary to perform other covenants with respect to the exchange notes, the indenture or the guarantees for 60 days after receipt of notice of failure; o the occurrence of a default in respect to our debt or the debt (except certain non-recourse debt) of Toll Brothers, Inc. or any other guarantor totaling $10 million or more in aggregate principal amount, resulting in the acceleration of such debt or due to the failure to pay such debt at maturity; o an acceleration or significant modification occurs with respect to any series of the senior subordinated notes of Toll Corp., if on the date of occurrence the outstanding principal amount of such senior subordinated notes exceeds $5 million; o any guarantee in respect of the exchange notes by Toll Brothers, Inc. or guarantors that are significant subsidiaries ceases to be in full force and effect and enforceable in accordance with its terms; and o certain events of bankruptcy, insolvency or reorganization affecting us, Toll Brothers, Inc. or other guarantors that are significant subsidiaries. If any event of default occurs and is continuing, the trustee under the indenture or holders of at least 25% in aggregate principal amount of outstanding exchange notes issued under the indenture may declare the principal thereof immediately due and payable. Other................................... The exchange notes and any old notes not exchanged for the exchange notes will constitute a single series of senior notes under the indenture and will therefore vote together as a single class for purposes of determining whether the holders of the requisite percentage in outstanding principal amount have taken certain actions or exercised certain rights under the indenture. 8 Summary Financial Information (Dollars in Thousands) The following summary consolidated financial information for the five years ended October 31, 2002 is derived from our audited consolidated financial statements. The summary consolidated financial information for the six months ended April 30, 2002 and 2003 is derived from our unaudited quarterly consolidated financial statements and in the opinion of management, includes all adjustments (consisting of normal recurring items) necessary for the fair presentation of the results for such periods. The following summary financial data should be read in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" and the consolidated financial statements and related notes thereto contained in our annual report on Form 10-K for the fiscal year ended October 31, 2002 and our quarterly report on Form 10-Q for the quarter ended April 30, 2003 which are incorporated into this prospectus by reference. The results of operations for the six months ended April 30, 2003 may not be indicative of results of operations to be expected for the fiscal year.
Six Months ended April 30, Year ended October 31, (unaudited) ---------------------------------------------------------------- ------------------------- 1998 1999 2000 2001 2002 2002 2003 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Income Statement Data: Revenues............................ $1,210,816 $1,464,115 $1,814,362 $2,229,605 $2,328,972 $1,042,675 $1,178,192 Income before income taxes(1)....... $ 132,523 $ 160,432 $ 230,966 $ 337,889 $ 347,318 $ 152,810 $ 155,536 Net income.......................... $ 84,704 $ 101,566 $ 145,943 $ 213,673 $ 219,887 $ 97,004 $ 98,279 Other Financial Data: Depreciation and amortization....... $ 6,095 $ 7,514 $ 8,528 $ 9,356 $ 10,495 $ 5,363 $ 5,928 Interest incurred................... $ 39,801 $ 52,914 $ 60,275 $ 79,245 $ 90,331 $ 45,242 $ 51,031 Ratio of earnings to fixed charges(2)........................ 4.17x 3.75x 4.56x 4.94x 4.49x 3.98x 3.58x
At April 30, At October 31, (unaudited) ---------------------------------------------------------------- ----------------------- 1998 1999 2000 2001 2002 2002 2003 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Balance Sheet Data: Inventory........................... $1,111,223 $1,443,282 $1,712,383 $2,183,541 $2,551,061 $2,402,720 $2,737,340 Total assets........................ $1,254,468 $1,668,062 $2,030,254 $2,532,200 $2,895,365 $2,694,726 $3,202,149 Debt Loans payable...................... $ 182,292 $ 213,317 $ 326,537 $ 362,712 $ 253,194 $ 235,547 $ 255,034 Senior notes....................... -- -- -- -- -- -- 298,135 Subordinated notes................. 269,296 469,418 469,499 669,581 819,663 819,622 719,971 Mortgage company warehouse loans.................. -- -- -- 24,754 48,996 22,614 60,008 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Total debt.......................... $ 451,588 $ 682,735 $ 796,036 $1,057,047 $1,121,853 $1,077,783 $1,333,148 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Stockholders' equity................ $ 525,756 $ 616,334 $ 745,145 $ 912,583 $1,129,509 $1,028,344 $1,215,085
(1) Statement of Financial Accounting Standards No. 145 ("SFAS No. 145"), "Amendment of FASB Statement No. 13, and Technical Corrections," requires all gains and losses from the extinguishment of debt to be included as an item of continuing operations. The provisions of SFAS No. 145 relating to the rescission of SFAS. No. 4, "Reporting Gains and Losses from Extinguishment of Debt," became effective for our fiscal year 2003. SFAS No. 145 requires us to also reclassify any prior periods that are presented. In accordance with SFAS No. 145, our fiscal 1998 and 1999 income before taxes have been restated to reflect losses on the early retirement of debt of $1.8 million and $2.3 million, respectively. (2) For purposes of computing the ratio of earnings to fixed charges, earnings consist of income before income taxes, plus interest expense and fixed charges except interest incurred. Fixed charges consist of interest incurred, whether expensed or capitalized, one-third of rent expense that is representative of the interest factor and amortization of debt discount and issuance costs. The pro forma ratio of earnings to fixed charges would be 4.06x for the year ended October 31, 2002 and 3.61x for the six months ended April 30, 2003 assuming that the $300 million principal amount of old notes and the $150 million principal amount of 8.25% Senior Subordinated Notes due 2011 issued in November 2001 were outstanding as of November 1, 2001, and assuming that the $100 million principal amount of 8 3/4% Senior Subordinated Notes due 2006 were paid as of October 31, 2001. 9 RISK FACTORS You should consider carefully the following risk factors, as well as all of the other information contained or incorporated by reference in this prospectus, before making an investment in the exchange notes offered by this prospectus. Our substantial indebtedness could adversely affect our financial condition and prevent us from fulfilling our obligations under the senior notes. We have a significant amount of indebtedness. The following tables show important credit statistics and are presented on a pro forma basis assuming that the $300 million principal amount of old notes and the $150 million principal amount of 8.25% Senior Subordinated Notes due 2011 issued in November 2001 were outstanding as of November 1, 2001, and assuming that the $100 million principal amount of 8 3/4% Senior Subordinated Notes due 2006 were paid as of October 31, 2001:
At April 30, 2003 (unaudited) ($ in thousands) ---------------- Total indebtedness .......................................... $1,335,042 Stockholders' equity ........................................ $1,215,085 Debt to equity ratio ........................................ 1.10
For the Year Ended For the Six Months ended October 31, 2002 April 30, 2003 ------------------ ------------------------ (unaudited) Pro forma ratio of earnings to fixed charges ................. 4.06x 3.61x
Our substantial indebtedness could have important consequences to you. For example, it could: o make it more difficult for us to satisfy our obligations with respect to the senior notes; o increase our vulnerability to general adverse economic and industry conditions; o limit our ability to borrow money or sell stock to fund future working capital, capital expenditures, debt service requirements and other general corporate requirements; o require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby reducing our ability to use our cash flow for other purposes; o limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate; o make it more difficult for us to meet our debt service obligations in the event that there is a substantial increase in interest rates because our indebtedness under our bank credit facilities bear interest at fluctuating rates; o place us at a competitive disadvantage compared to our competitors that have less debt; and o limit, along with the financial and other restrictive covenants in our indebtedness, among other things, our ability to borrow additional funds. Failing to comply with those covenants could result in an event of default which, if not cured or waived, could have a material adverse effect on us. The indentures governing the senior notes and the senior subordinated notes of Toll Corp., as well as the terms and conditions of our bank credit facilities, impose restrictions on our operations and activities and require us to comply with financial covenants. If we fail to comply with any of these restrictions or covenants, the trustees or the banks, as appropriate, could cause our debt to become due and payable before maturity. In addition, each of the indentures governing the senior notes and the senior subordinated notes of Toll Corp., as well as the terms and conditions of our bank credit facilities, contain cross default provisions which, in general, have the effect that a default under any one of these instruments will constitute a default 10 under all of them. In the event of such a default, it is unlikely that we would be able to repay all of this outstanding indebtedness simultaneously. Despite our current indebtedness levels, we may be able to incur more debt. If we incur more debt, it could intensify the risks described above. Toll Brothers, Inc., Toll Brothers Finance Corp. and other subsidiaries of Toll Brothers, Inc. may be able to incur substantial additional indebtedness, including secured indebtedness that ranks senior to the senior notes and the guarantees. The terms of the indenture do not fully prohibit Toll Brothers, Inc., Toll Brothers Finance Corp., or any other subsidiary of Toll Brothers, Inc. from incurring such indebtedness. At April 30, 2003, we had a $540 million unsecured revolving credit facility with 16 banks which extends to March 2006. At April 30, 2003, we had no borrowings against the facility and approximately $82.7 million of letters of credit outstanding under the facility. In addition to our revolving bank credit facility, we have a term loan of $207.5 million. At April 30, 2003, we had outstanding, through Toll Corp., a wholly-owned, indirect subsidiary of Toll Brothers, Inc., approximately $720 million in senior subordinated notes guaranteed, on a senior subordinated basis, by Toll Brothers, Inc. If new debt is added to the current debt levels of Toll Brothers, Inc., Toll Brothers Finance Corp. and/or the other subsidiaries of Toll Brothers, Inc., the related risks that we now face could intensify. To service our indebtedness, including the senior notes, we will require a significant amount of cash. Our ability to generate cash depends on many factors beyond our control. Our ability to meet our debt service and other obligations will depend upon our future performance. We are engaged in a business that is substantially affected by changes in economic cycles. Our revenues and earnings vary with the level of general economic activity in the markets we serve. Financial, political, business and other factors, many of which are beyond our control, also could affect our business. Our annual debt service obligations vary from year to year, principally due to the varying maturities of our indebtedness. At April 30, 2003, annual interest payment requirements were approximately $99 million. Interest rates on a substantial portion of our existing indebtedness are fixed. However, changes in prevailing interest rates may affect our ability to meet our debt service obligations, because borrowings under our bank credit facilities may bear interest at floating rates. A higher interest rate on our debt could adversely affect our operating results. A one percent (1%) increase in interest rates would have increased our annual interest cost at April 30, 2003 by approximately $646,000. Higher interest rates may also affect the desire or ability of customers to buy our houses. We cannot be certain that our earnings will be sufficient to allow us to pay the principal and interest on our debt, including the senior notes, and meet our other obligations. If we do not have enough money, we may be required to refinance all or part of our existing debt, including the senior notes, sell assets, borrow more money or raise equity. We may not be able to refinance our debt, sell assets, borrow more money or raise equity on terms acceptable to us, if at all. The senior notes are effectively subordinated to the secured debt of Toll Brothers Finance Corp., Toll Brothers, Inc. and the guarantor subsidiaries and structurally subordinated to the liabilities of Toll Brothers, Inc.'s subsidiaries that do not guarantee the senior notes. The senior notes will be the senior unsecured obligations of Toll Brothers Finance Corp. and will be effectively subordinated in right of payment to existing and future secured debt of Toll Brothers Finance Corp., Toll Brothers, Inc. and guarantor subsidiaries, including the obligations of the guarantor subsidiaries under various purchase money mortgages, to the extent of such security. The effect of this subordination is that if Toll Brothers Finance Corp., Toll Brothers, Inc. or a guarantor subsidiary is involved in a bankruptcy, liquidation, dissolution, reorganization or similar proceeding, or upon a default in payment on, or the acceleration of, any secured debt, the assets of Toll Brothers Finance Corp., Toll Brothers, Inc. and the guarantor subsidiaries that secure the secured debt will be available to pay obligations on the senior notes only after all secured debt has been paid in full from those assets. At April 30, 2003, we had approximately $42.8 million aggregate principal amount of such secured indebtedness for borrowed money outstanding. The senior notes also will be structurally subordinated in right of payment to all existing and future debt and other liabilities, including trade payables, of Toll Brothers, Inc.'s non-guarantor subsidiaries and the claims of creditors of those subsidiaries, including trade creditors, will have priority as to the assets of those 11 subsidiaries. There was approximately $108 million aggregate amount of these claims outstanding at April 30, 2003. We may not have sufficient assets remaining to pay amounts due on any or all of the senior notes then outstanding. A court may void the subsidiary guarantees of the senior notes or subordinate the subsidiary guarantees to other obligations of the subsidiary guarantors. Although standards may vary depending upon the applicable law, generally under U.S. federal bankruptcy law and comparable provisions of state fraudulent transfer laws, a court could void all or a portion of the subsidiary guarantees of the senior notes or subordinate the subsidiary guarantees to other obligations of Toll Brothers, Inc. and/or the subsidiary guarantors. If the claims of the holders of the senior notes against any subsidiary guarantor were held to be subordinated in favor of other creditors of that subsidiary guarantor, the other creditors would be entitled to be paid in full before any payment could be made on the senior notes. If one or more of the subsidiary guarantees were voided or subordinated, we cannot assure you that, after providing for all prior claims, there would be sufficient assets remaining to satisfy the claims of the holders of the senior notes. The indenture governing the senior notes contains few covenants or other provisions to protect holders of the senior notes in the event of a change in control, highly leveraged transaction, change in credit rating or other similar occurrence. The indenture governing the senior notes contains only limited events of default other than our failure to pay principal and interest on time. Except as noted below and further described under the heading "Description of Exchange Notes," the indenture governing the senior notes does not contain covenants or other provisions to protect holders of the senior notes in the event of a change of control, highly leveraged transaction, change of credit rating or other similar occurrence. The indenture provides limited protection for holders of the senior notes if we are purchased through what is known as a leveraged buy-out or if there is a change in who has voting control over us. A leveraged buy-out is a transaction where a buyer seeking to purchase us relies on our credit and uses our assets as collateral to borrow funds to finance the purchase. If we are acquired, the indenture requires the buyer to assume our obligations to holders of the senior notes. However, the indenture does not prohibit the buyer from incurring additional debt including, subject to exceptions and qualifications, secured debt which might be equal or senior in right of payment to that of the holders of the senior notes. This might reduce the cash available to us, or to anyone who may acquire us, and impair our ability, or the ability of anyone who acquires us, to make payments on the senior notes. If an active market for the exchange notes fails to develop, the trading price and liquidity of the exchange notes could be adversely affected. The exchange notes are expected to be listed on the New York Stock Exchange. However, an active market for the exchange notes may not develop. We do not expect any affiliate of ours to make a market in the exchange notes. The initial purchasers of the old notes have advised us that they currently intend to make a market in the exchange notes. However, the initial purchasers are not obligated to make a market and may discontinue their market-making activity at any time without notice. The liquidity of the trading market for the exchange notes will depend in part on the level of participation of the holders of the old notes in the exchange offer. The greater the participation in the exchange offer, the greater the liquidity of the trading market for the exchange notes and the lesser the liquidity of the trading market for the old notes not tendered during the exchange offer. We do not know how many holders of our old notes will accept this exchange offer and, therefore, do not know what principal amount of exchange notes will be issued. In addition, market making activity by the initial purchasers will be subject to the limits imposed by the Securities Act and the Securities Exchange Act of 1934. As a result, we cannot assure you that any market for the exchange notes will develop, or, if one does develop, that it will be maintained. If an active market for the exchange notes fails to develop, or be maintained, the trading price and liquidity of the exchange notes could be adversely affected. Future trading prices of the exchange notes would depend on many factors, including, among others, prevailing interest rates, our operating results and the market for similar securities. Depending on 12 prevailing interest rates, our financial condition, the market for similar securities and other factors, the exchange notes could trade at a discount from their principal amount. If you fail to exchange your old notes by properly tendering them for exchange notes in the exchange offer, your old notes will continue to be subject to transfer restrictions and may have reduced liquidity We will issue exchange notes only in exchange for old notes that you timely and properly tender. Therefore, you should allow sufficient time to ensure timely delivery of the old notes, and you should carefully follow the instructions on how to tender your old notes. Neither we nor the exchange agent are required to tell you of any defects or irregularities with respect to your tender of old notes. If you do not exchange your old notes for exchange notes in the exchange offer by properly tendering them for exchange notes, your old notes will continue to be subject to the restrictions on transfer described in the legend on your old notes. The restrictions on transfer of your old notes arise because we issued the old notes under exemptions from, or in transactions not subject to, the registration requirements of the Securities Act and applicable state securities laws. In general, you may only offer or sell the old notes if they are registered under the Securities Act and applicable state securities laws, or offered and sold under an exemption from these requirements. As we do not intend to register the old notes under the Securities Act, in the event the exchange offer is completed, holders of old notes which have not been exchanged who seek liquidity in their investment would have to rely on exemptions to the registration requirements under the securities laws, including the Securities Act. Consequently, holders of old notes who do not participate in the exchange offer could experience significant diminution in the value of their old notes, compared to the value of the exchange notes. See "The Exchange Offer - Consequences of Failure to Exchange Old Notes" for a discussion of possible consequences of failing to exchange your old notes. An adverse change in economic conditions could reduce the demand for homes and, as a result, could reduce our earnings. Changes in national and regional economic conditions, as well as local economic conditions where we conduct our operations and where prospective purchasers of our homes live, can have a negative impact on our business. Adverse changes in employment levels, job growth, consumer confidence, housing demand, interest rates and population growth may reduce demand and depress prices for our homes. This, in turn, can reduce our earnings. The homebuilding industry is highly competitive and, if others are more successful, our business could decline. We operate in a very competitive environment, which is characterized by competition from a number of other homebuilders in each market in which we operate. We compete with large national and regional homebuilders and with smaller local homebuilders for land, financing, raw materials and skilled management and labor resources. We also compete with the resale, or "previously owned," home market. Increased competition could cause us to increase our selling incentives and/or reduce our prices. An oversupply of homes available for sale could also depress our home prices and adversely affect our operations. If we are unable to compete effectively in our markets, our business could decline. If land is not available at reasonable prices, our sales and earnings could decrease. Our operations depend on our ability to continue to obtain land for the development of our residential communities at reasonable prices. Changes in the general availability of land, competition for available land, availability of financing to acquire land, zoning regulations that limit housing density and other market conditions may hurt our ability to obtain land for new residential communities. If the supply of land appropriate for development of our residential communities becomes more limited because of these factors, or for any reason, the cost of land could increase and/or the number of homes that we build and sell could be reduced. If the market value of our homes drop significantly, our profits could decrease. The market value of our land and housing inventories depends on market conditions. We acquire land for expansion into new markets and for replacement of land inventory and expansion within our current 13 markets. If housing demand decreases below what we anticipated when we acquired our inventory, we may not be able to make profits similar to what we have made in the past, may experience less than anticipated profits and/or may not be able to recover our costs when we build and sell homes. In the face of adverse market conditions, we may have substantial inventory carrying costs or we may have to sell land or homes at a loss. Government regulations may delay the start or completion of our communities, increase our expenses or limit our homebuilding activities, which could have a negative impact on our operations. We must obtain the approval of numerous governmental authorities in connection with our development activities, and these governmental authorities often have broad discretion in exercising their approval authority. We incur substantial costs related to compliance with legal and regulatory requirements. Any increase in legal and regulatory requirements may cause us to incur substantial additional costs, as discussed below. Various local, state and federal statutes, ordinances, rules and regulations concerning building, zoning, sales and similar matters apply to and/or affect the housing industry. This governmental regulation affects construction activities as well as sales activities, mortgage lending activities and other dealings with consumers. The industry also has experienced an increase in state and local legislation and regulations which limit the availability of land. We may be required to apply for additional approvals or modify our existing approvals because of changes in local circumstances or applicable law. Expansion of regulation in the housing industry has increased the time required to obtain the necessary approvals to begin construction and has prolonged the time between the initial acquisition of land or land options and the commencement and completion of construction. These delays can increase our costs and decrease our profitability. Municipalities may restrict or place moratoriums on the availability of utilities, such as water and sewer taps. In some areas, municipalities may enact growth control initiatives, which will restrict the number of building permits available in a given year. If municipalities in which we operate take actions like these, it could have an adverse effect on our business by causing delays, increasing our costs or severely limiting our ability to operate in those municipalities. Increases in taxes or government fees could increase our costs, and adverse changes in tax laws could reduce customer demand for our homes. Increases in real estate taxes and other local government fees, such as fees imposed on developers to fund schools, open space, road improvements, and/or provide low and moderate income housing, could increase our costs and have an adverse effect on our operations. In addition, increases in local real estate taxes could adversely affect our potential customers who may consider those costs in determining whether to make a new home purchase and decide, as a result, not to purchase one of our homes. In addition, any changes in the income tax laws that would reduce or eliminate tax incentives to homeowners could make housing less affordable or otherwise reduce the demand for housing, which in turn could reduce our sales and hurt our operating results. Adverse weather conditions and conditions in nature beyond our control could disrupt the development of our communities, which could harm our sales and earnings. Adverse weather conditions and natural disasters, such as hurricanes, tornadoes, earthquakes, floods and fires, can have serious effects on our ability to develop our residential communities. We also may be affected by unforeseen engineering, environmental or geological problems. Any of these adverse events or circumstances could cause delays in the completion of, or increase the cost of, developing one or more of our residential communities and, as a result, could harm our sales and earnings. If we experience shortages of labor and supplies or other circumstances beyond our control, there could be delays or increased costs in developing our communities, which would adversely affect our operating results. Our ability to develop residential communities may be affected by circumstances beyond our control, including: work stoppages, labor disputes and shortages of qualified trades people, such as carpenters, roofers, electricians and plumbers; lack of availability of adequate utility infrastructure and services; our need to rely 14 on local subcontractors who may not be adequately capitalized or insured; and shortages or fluctuations in prices of building materials. Any of these circumstances could give rise to delays in the start or completion of, or increase the cost of, developing one or more of our residential communities. We may not be able to recover these increased costs by raising our home prices because, typically, the price for each home is set months prior to delivery in a home sale contract with the customer. If that happens, our operating results could be harmed. Additionally, we may be limited in the amount we can raise sales prices by our customers' willingness to pay higher prices. We are subject to one collective bargaining agreement that covers less than 5% of our employees. We have not experienced any work stoppages due to strikes by unionized workers, but we cannot assure you that there will not be any work stoppages due to strikes or other job actions in the future. We use independent contractors to construct our homes. At any given point in time, some or all of these subcontractors may be unionized. Product liability litigation and warranty claims that arise in the ordinary course of business may be costly, which could adversely affect our business. As a homebuilder, we are subject to construction defect and home warranty claims arising in the ordinary course of business. These claims are common in the homebuilding industry and can be costly. In addition, the costs of insuring against construction defect and product liability claims are high, and the amount of coverage offered by insurance companies is currently limited. There can be no assurance that this coverage will not be further restricted and become more costly. If we are not able to obtain adequate insurance against these claims, we may experience losses that could hurt our business. If we are not able to obtain suitable financing, our business may decline. Our business and earnings depend substantially on our ability to obtain financing for the development of our residential communities, whether from bank borrowings or from sales of our debt or equity securities. If we are not able to obtain suitable financing, our costs could increase and our revenues could decrease, or we could be precluded from continuing our operations at current levels. Increases in interest rates can make it more difficult and/or expensive for us to obtain the funds we need to operate our business. The amount of interest we incur on our revolving bank credit facility fluctuates based on changes in short-term interest rates, the amount of borrowings we incur and the ratings that national rating agencies assign to our outstanding debt securities. Increases in interest rates generally and/or any downgrading in the ratings that national rating agencies assign to our outstanding debt securities would increase the interest rates we must pay on our debt securities, and any such ratings downgrade could also make it more difficult for us to sell our debt securities. If our potential customers are not able to obtain suitable financing, our business may decline. Our business and earnings also depend on the ability of our potential customers to obtain mortgages for the purchase of our homes. Increases in the cost of home mortgage financing could prevent our potential customers from purchasing our homes. In addition, where our potential customers must sell their existing homes in order to buy a home from us, increases in mortgage costs could prevent the buyers of our customers' existing homes from obtaining the mortgages they need to complete the purchase, which could result in our potential customers' inability to buy a home from us. If our potential customers or the buyers of our customers' existing homes are not able to obtain suitable financing, our sales and revenues could decline. Our principal stockholders may effectively exercise control over matters requiring stockholder approval. As of April 30, 2003, Robert I. Toll and his affiliates owned, directly or indirectly, or had the right to acquire within 60 days, approximately 22% of the outstanding shares of Toll Brothers, Inc.'s common stock, and his brother Bruce E. Toll and his affiliates owned, directly or indirectly, or had the right to acquire within 60 days, approximately 13% of the outstanding shares of Toll Brothers, Inc.'s common stock. To the extent they and their affiliates vote their shares in the same manner, their combined stock ownership may effectively give them the power to elect all of the directors and control the management, operations and affairs of Toll Brothers, Inc. Their ownership may discourage someone from making a significant equity investment in Toll 15 Brothers, Inc., even if we needed the investment to operate our business. The large percentage of stock they own could also delay or prevent a change of control transaction that other stockholders may deem to be in their best interests, such as a transaction in which the other stockholders would receive a premium for their shares over their current trading prices. Our business is seasonal in nature, so our quarterly operating results fluctuate. Our quarterly operating results typically fluctuate with the seasons. A significant portion of our home purchase contracts are entered into with customers in the winter and spring months. Construction on a customer's home typically proceeds after signing the contract and can require 12 months or more to complete. Weather-related problems may occur in the late winter and early spring delaying starts or closings or increasing costs and reducing profitability. In addition, delays in opening new communities or new sections of existing communities could have an adverse impact on home sales and revenues. Because of these factors, our quarterly operating results may be uneven and may be marked by lower revenues and earnings in some quarters. Future terrorist attacks against the United States or increased domestic or international instability could have an adverse effect on our operations. In the weeks following the September 11, 2001 terrorist attacks, we experienced a sharp decrease in the number of orders for new homes and cancellation of many existing orders. Although new home purchases stabilized and subsequently recovered in the months after that initial period, a generalized economic uncertainty persists. Adverse developments in the war on terrorism, future terrorist attacks against the United States, or increased domestic or international instability could adversely affect our business. FORWARD-LOOKING STATEMENTS Certain information included in this prospectus contains or may contain forward-looking statements. You can identify these statements by the fact that they do not relate strictly to historical or current facts. They contain words like "anticipate," "estimate," "expect," "project," "intend," "plan," "believe," "may," "can," "could," "predict," "potential," "continue," "might" and other words or phrases of similar meaning in connection with any discussion of future operating or financial performance. Such statements include information relating to anticipated operating results, financial resources, changes in revenues, changes in profitability, interest expense, growth and expansion, anticipated income to be realized from our investments in joint ventures and the Toll Brothers Realty Trust Group, the ability to acquire land, the ability to gain approvals and to open new communities, the ability to sell homes and properties, the ability to deliver homes from backlog, the average delivered price of homes, the ability to secure materials and subcontractors, the ability to maintain the liquidity and capital necessary to expand and take advantage of opportunities in the future, and stock market valuations. From time to time, forward-looking statements are also included in our reports filed with the Commission, in press releases and in other material released to the public. Any or all of the forward-looking statements included in this prospectus or in any reports or public statements made by us may turn out to be inaccurate. This can occur as a result of incorrect assumptions or as a consequence of known or unknown risks and uncertainties. Many factors mentioned in this prospectus or in reports or public statements made by us, such as government regulation and the competitive environment, will be important in determining our future performance. Consequently, actual results may differ materially from those that might be anticipated from our forward-looking statements. We undertake no obligation to publicly update any forward-looking statements, whether as a result of new information, future events or otherwise. However, any further disclosures made on related subjects in our subsequent reports on Forms 10-K, 10-Q and 8-K should be consulted. The following cautionary discussion of risks, uncertainties and possible inaccurate assumptions relevant to our business includes factors we believe could cause our actual results to differ materially from expected and historical results. Other factors beyond those listed below, including factors unknown to us and factors known to us which we have not determined are material, could also adversely affect us. All of our forward-looking statements are expressly qualified in their entirety by the cautionary statements contained or referenced in this section. 16 o We operate in a very competitive environment, which is characterized by competition from a number of other home builders in each market in which we operate. Actions or changes in plans by competitors may negatively affect us. o Our business can be affected by changes in general economic and market conditions, as well as local economic and market conditions where our operations are conducted and where prospective purchasers of our homes live. o The impact and uncertainties created by the September 11, 2001 terrorist attacks and the consequences of any future terrorist attacks, as well as other events affecting the national and world economies, may affect our business. o The plans for future development of our residential communities can be affected by a number of factors including, for example, time delays in obtaining necessary governmental permits and approvals and legal challenges to our proposed communities. o Our operations depend on our ability to continue to obtain land for the development of residential communities at reasonable prices. Changes in competition, availability of financing, customer trends and market conditions may impact our ability to obtain land for new residential communities. o The development of our residential communities may be affected by circumstances beyond our control, including weather conditions, work stoppages, labor disputes, unforeseen engineering, environmental or geological problems and unanticipated shortages of or increases in the cost of materials and labor. Any of these circumstances could give rise to delays in the completion of, or increase the cost of, developing one or more of our residential communities. o The interest rate on our revolving bank credit facility is subject to fluctuation based on changes in short-term interest rates, the amount of borrowings we have incurred and the ratings which national rating agencies assign to our outstanding debt securities. Our interest expense could increase as a result of these factors. o Our business and earnings are substantially dependent on our ability to obtain financing for our development activities. Increases in interest rates, concerns about the market or the economy, or consolidation or dissolution of financial institutions could increase our cost of borrowing and/or reduce our ability to obtain the funds required for our future operations. o Our business and earnings are also substantially dependent on the ability of our customers to finance the purchase of their homes. Limitations on the availability of financing or increases in the cost of such financing could adversely affect our operations. o We believe that our recorded tax balances are adequate. However, it is not possible to predict the effects of possible changes in the tax laws or changes in their interpretation. These changes or interpretations, if made, could have a material negative effect on our operating results. o Claims have been brought against us in various legal proceedings which have not had, and are not expected to have, a material adverse effect on the business or on our financial condition; however, additional legal and tax claims may arise from time to time, and it is possible that our cash flows and results of operations could be affected from time to time by the resolution of one or more of such matters. o We are subject to construction defect and home warranty claims arising in the ordinary course of business. These claims are common in the homebuilding industry and can be costly. In addition, the costs of insuring against construction defects and product liability claims are high and the amount of coverage offered by insurance companies is currently limited. There can be no assurance that this coverage will not be further restricted and become more costly. If we are not able to obtain adequate insurance against these claims, we may experience losses that could hurt our business. o There is intense competition to attract and retain management and key employees in the markets where our operations are conducted. Our business could be adversely affected in the event of our inability to recruit or retain key personnel in one or more of the markets in which we conduct our operations. 17 USE OF PROCEEDS We will not receive any proceeds from the exchange of the exchange notes for the old notes pursuant to the exchange offer. We have used the aggregate net proceeds of the offering of the old notes for the repayment of all of the $100 million outstanding of our 8 3/4% Senior Subordinated Notes due 2006, for the repayment of $80 million of borrowings under our bank credit facilities, which borrowings bore interest at a rate of 2.64% at the time of repayment, and for general corporate purposes. CAPITALIZATION The following table sets forth the consolidated capitalization of Toll Brothers, Inc. at April 30, 2003:
April 30, 2003 ---------------- (unaudited) ($ in thousands) Debt (1): Loans payable .............................................. $ 255,034 6.875% Senior Notes due 2012 ............................... 300,000 7 3/4% Senior Subordinated Notes due 2007 .................. 100,000 8 1/8% Senior Subordinated Notes due 2009 .................. 170,000 8% Senior Subordinated Notes due 2009 ...................... 100,000 8 1/4% Senior Subordinated Notes due 2011 .................. 200,000 8.25% Senior Subordinated Notes due 2011 ................... 150,000 Mortgage company warehouse loan ............................ 60,008 ---------- Total debt .............................................. 1,335,042 ---------- Stockholders' equity (2); Preferred stock, par value $.01 per share: none issued Common stock par value $.01 per share; 74.0 million shares issued ............................... 740 Additional paid-in capital ................................. 104,020 Retained earnings .......................................... 1,200,078 Treasury stock, at cost, 4.5 million shares ................ (89,753) ---------- Total stockholders' equity .............................. 1,215,085 ---------- Total debt and stockholders' equity ......................... $2,550,127 ==========
- --------------- (1) We have a $540 million unsecured revolving bank credit facility with 16 banks which extends through March 2006. Interest is payable on short-term borrowings under the facility at 0.90% above the Eurodollar rate or at other specified variable rates as selected by us from time to time. At April 30, 2003, we had no borrowings against the facility and approximately $82.7 million of letters of credit outstanding under the facility. (2) Our authorized capital stock consists of 100,000,000 shares of common stock, par value $.01 per share, and 1,000,000 shares of preferred stock, par value $.01 per share. Our board of directors is authorized to amend our Certificate of Incorporation to increase the number of authorized shares of common stock to 200,000,000 shares and the number of shares of authorized preferred stock to 15,000,000 shares. 18 SELECTED CONSOLIDATED FINANCIAL INFORMATION AND OPERATING DATA (Dollars in Thousands) The following selected consolidated financial information for the five years ended October 31, 2002 is derived from our audited consolidated financial statements. The following selected consolidated financial information for the six months ended April 30, 2002 and 2003 is derived from our unaudited quarterly consolidated financial statements and in the opinion of management, includes all adjustments (consisting of normal recurring items) necessary for the fair presentation of the results for such periods. The following selected financial data should be read in conjunction with "Management's Discussion and Analysis of Financial Condition and Results of Operations" and the consolidated financial statements and related notes thereto contained in our annual report on Form 10-K for the fiscal year ended October 31, 2002 and our quarterly report on Form 10-Q for the quarter ended April 30, 2003 which are incorporated into this prospectus by reference. The results of operations for the six months ended April 30, 2003 may not be indicative of results of operations to be expected for the fiscal year.
Six Months ended April 30, Year ended October 31, (unaudited) ---------------------------------------------------------------- ------------------------- 1998 1999 2000 2001 2002 2002 2003 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Income Statement Data: Revenues............................ $1,210,816 $1,464,115 $1,814,362 $2,229,605 $2,328,972 $1,042,675 $1,178,192 Income before income taxes(1)......................... $ 132,523 $ 160,432 $ 230,966 $ 337,889 $ 347,318 $ 152,810 $ 155,536 Net income.......................... $ 84,704 $ 101,566 $ 145,943 $ 213,673 $ 219,887 $ 97,004 $ 98,279 Other Financial Data: Depreciation and amortization..................... $ 6,095 $ 7,514 $ 8,528 $ 9,356 $ 10,495 $ 5,363 $ 5,928 Interest incurred................... $ 39,801 $ 52,914 $ 60,275 $ 79,245 $ 90,331 $ 45,242 $ 51,031 Ratio of earnings to fixed charges(2)................. 4.17x 3.75x 4.56x 4.94x 4.49x 3.98x 3.58x
At April 30, At October 31, (unaudited) ---------------------------------------------------------------- ----------------------- 1998 1999 2000 2001 2002 2002 2003 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Balance Sheet Data: Inventory........................... $1,111,223 $1,443,282 $1,712,383 $2,183,541 $2,551,061 $2,402,720 $2,737,340 Total assets........................ $1,254,468 $1,668,062 $2,030,254 $2,532,200 $2,895,365 $2,694,726 $3,202,149 Debt Loans payable...................... $ 182,292 $ 213,317 $ 326,537 $ 362,712 $ 253,194 $ 235,547 $ 255,034 Senior notes....................... -- -- -- -- -- -- 298,135 Subordinated notes................. 269,296 469,418 469,499 669,581 819,663 819,622 719,971 Mortgage company warehouse loans.................. -- -- -- 24,754 48,996 22,614 60,008 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Total debt.......................... $ 451,588 $ 682,735 $ 796,036 $1,057,047 $1,121,853 $1,077,783 $1,333,148 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Stockholders' equity................ $ 525,756 $ 616,334 $ 745,145 $ 912,583 $1,129,509 $1,028,344 $1,215,085
Six Months ended April 30, Year ended October 31, (unaudited) ---------------------------------------------------------------- ------------------------- 1998 1999 2000 2001 2002 2002 2003 ---------- ---------- ---------- ---------- ---------- ---------- ---------- Housing Data: Number of homes closed.............. 3,099 3,555 3,945 4,358 4,430 2,065 2,145 Sales value of homes closed........................... $1,206,290 $1,438,171 $1,762,930 $2,180,469 $2,279,261 $1,021,813 $1,158,863 Number of homes contracted(3).................... 3,387 3,845 4,418 4,366 5,113 2,634 2,733 Sales value of homes contracted(3).................... $1,383,093 $1,640,990 $2,149,366 $2,173,938 $2,748,171 $1,387,424 1,512,713
At April 30, At October 31, (unaudited) -------------------------------------------------------------- ----------------------- 1998 1999 2000 2001 2002 2002 2003 -------- ---------- ---------- ---------- ---------- ---------- ---------- Number of homes in backlog(3)......................... 1,892 2,381 2,779 2,727 3,366 3,271 3,937 Sales value of homes in backlog(3)......................... $814,714 $1,067,685 $1,434,946 $1,411,374 $1,866,294 $1,769,197 $2,214,841 Homesites Owned................................ 15,578 23,163 22,275 25,981 25,822 24,565 26,313 Controlled........................... 14,803 11,268 10,843 13,165 15,022 14,063 16,555 -------- ---------- ---------- ---------- ---------- ---------- ---------- Total............................. 30,381 34,431 33,118 39,146 40,844 38,628 42,868 ======== ========== ========== ========== ========== ========== ==========
19 - --------------- (1) Statement of Financial Accounting Standards No. 145 ("SFAS No. 145"), "Amendment of FASB Statement No. 13, and Technical Corrections," requires all gains and losses from the extinguishment of debt to be included as an item of continuing operations. The provisions of SFAS No. 145 relating to the rescission of SFAS. No. 4, "Reporting Gains and Losses from Extinguishment of Debt," became effective for our fiscal year 2003. SFAS No. 145 requires us to also reclassify any prior periods that are presented. In accordance with SFAS No. 145, our fiscal 1998 and 1999 income before taxes have been restated to reflect losses on the early retirement of debt of $1.8 million and $2.3 million, respectively. (2) For purposes of computing the ratio of earnings to fixed charges, earnings consist of income before income taxes plus interest expense and fixed charges except interest incurred. Fixed charges consist of interest incurred, whether expensed or capitalized, one-third of rent expense that is representative of the interest factor and amortization of debt discount and issuance costs. The pro forma ratio of earnings to fixed charges would be 4.06x for the year ended October 31, 2002 and 3.61x for the six months ended April 30, 2003 assuming that the $300 million principal amount of old notes and the $150 million principal amount of the 8.25% Senior Subordinated Notes due 2011 issued in November 2001 were outstanding as of November 1, 2001, and assuming that the $100 million principal amount of 8 3/4% Senior Subordinated Notes due 2006 were paid as of October 31, 2001. (3) New contracts for fiscal 2001 and 2002 included $15.4 million (52 homes) and $13.7 million (43 homes), respectively, from an unconsolidated 50% owned joint venture. Backlog consists of homes which were under contract but not closed at the end of the period. Backlog at October 31, 2001 and 2002 included $7.8 million (25 homes) and $7.5 million (24 homes), respectively, from this joint venture. New contracts for the six months ended April 30, 2002 and 2003 included $4.6 million (14 homes) and $5.5 million (18 homes), respectively, from this joint venture. Backlog at April 30, 2002 and 2003 included $4.6 million (14 homes) and $7.7 million (25 homes), respectively, from this joint venture. THE GUARANTORS The guarantors comprise substantially all of our wholly-owned homebuilding subsidiaries and each is a guarantor under our bank credit facilities. Non- homebuilding subsidiaries engage in ancillary businesses such as mortgage, title insurance, security monitoring, internet access and insurance. The guarantors consist of: Toll Brothers, Inc., Amwell Chase, Inc., BBCC Investments, Inc., Brentwood Investments I, Inc., Bunker Hill Estates, Inc., Chesterbrooke, Inc., Connecticut Land Corp., Daylesford Development Corp., Eastern States Engineering, Inc., Edmunds-Toll Construction Company, Fairway Valley, Inc., First Brandywine Finance Corp., First Brandywine Investment Corp. II, First Brandywine Investment Corp. III, First Huntingdon Finance Corp., Franklin Farms G.P., Inc., Frenchman's Reserve Country Club, Inc., HQZ Acquisitions, Inc., MA Limited Land Corporation, Maple Point, Inc., Maryland Limited Land Corporation, Mizner Country Club, Inc., Polekoff Farm, Inc., Silverman Development Company, Inc., SH Homes Corporation, SI Investment Corporation, Springfield Chase, Inc., Stewarts Crossing, Inc., Tampa Realty Associates, Inc., TB Proprietary Corp., TB Proprietary LP, Inc., Tenby Hunt, Inc., The Silverman Building Companies, Inc., Toll AZ GP Corp., Toll Bros., Inc. (PA), Toll Bros., Inc. (DE), Toll Bros., Inc. (TX), Toll Bros. of Arizona, Inc., Toll Bros. of North Carolina, Inc., Toll Bros. of North Carolina II, Inc., Toll Bros. of North Carolina III, Inc., Toll Bros. of Tennessee, Inc., Toll Brothers Real Estate, Inc., Toll CA GP Corp., Toll CO GP Corp., Toll Corp., Toll Finance Corp., Toll FL GP Corp., Toll Holdings, Inc., Toll IL GP Corp., Toll Land Corp. No. 6, Toll Land Corp. No. 10, Toll Land Corp. No. 20, Toll Land Corp. No. 43, Toll Land Corp. No. 45, Toll Land Corp. No. 46, Toll Land Corp. No. 47, Toll Land Corp. No. 48, Toll Land Corp. No. 49, Toll Land Corp. No. 50, Toll Land Corp. No. 51, Toll Land Corp. No. 52, Toll Land Corp. No. 53, Toll Land Corp. No. 55, Toll Land Corp. No. 56, Toll Land Corp. No. 58, Toll Land Corp. No. 59, Toll Land Corp. No. 60, Toll Management AZ Corp., Toll Management VA Corp., Toll MI GP Corp., Toll NH GP Corp., Toll NJX-I Corp., Toll NJX-II Corp., Toll NV GP Corp., Toll NC GP Corp., Toll OH GP Corp., Toll PA GP Corp., Toll PA II GP Corp., Toll Peppertree, Inc., Toll Philmont Corporation, Toll Realty Holdings Corp. I, Toll Realty Holdings Corp. II, Toll Realty Holdings Corp. III, Toll RI GP Corp., Toll SC GP Corp., Toll TN GP Corp., Toll TX GP Corp., Toll VA GP Corp., Toll VA Member Two, Inc., Toll Wood Corporation, Toll YL, Inc., 20 Valley Forge Conservation Holding GP Corp., Warren Chase, Inc., Windsor Development Corp., Afton Chase, L.P., Audubon Ridge, L.P., BBCC Golf, L.P., BBCC Investments, LP, Beaumont Chase, L.P., Belmont Land, L.P., Bennington Hunt, L.P., Bernards Chase, L.P., Binks Estates Limited Partnership, The Bird Estate Limited Partnership, Blue Bell Country Club, L.P., Branchburg Ridge, L.P., Brandywine River Estates, L.P., Brass Castle Estates, L.P., Brentwood Investments, L.P., Bridle Estates, L.P., Broad Run Associates, L.P., Buckingham Woods, L.P., Bucks County Country Club, L.P., CC Estates Limited Partnership, Calabasas View, L.P., Charlestown Hills, L.P., Cheltenham Estates Limited Partnership, Chesterbrooke Limited Partnership, Chesterfield Hunt, L.P., Cobblestones at Thornbury, L.P., Cold Spring Hunt, L.P., Coleman-Toll Limited Partnership, Concord Chase, L.P., Cortlandt Chase, L.P., Delray Limited Partnership, Dolington Estates, L.P., Dominion Country Club, L.P., Eagle Farm Limited Partnership, Edmunds-Toll Limited Partnership, Eldorado Country Estates, L.P., Estates at Autumnwood, L.P., The Estates at Brooke Manor Limited Partnership, Estates at Coronado Pointe, L.P., The Estates at Potomac Glen Limited Partnership, Estates at Princeton Junction, L.P., Estates at Rivers Edge, L.P., Estates at San Juan Capistrano, L.P., The Estates at Summit Chase, L.P., Fairfax Investment, L.P., Fairfax Station Hunt, L.P., Fair Lakes Chase, L.P., Fairway Mews Limited Partnership, Farmwell Hunt, L.P., First Brandywine Partners, L.P., Franklin Oaks Limited Partnership, Freehold Chase, L.P., Great Falls Hunt, L.P., Great Falls Woods, L.P., Greens at Waynesborough, L.P., Greenwich Chase, L.P., Greenwich Station, L.P., Hockessin Chase, L.P., Holland Ridge, L.P., Holliston Hunt Limited Partnership, Hopewell Hunt, L.P., Huckins Farm Limited Partnership, Hunter Mill, L.P., Hunterdon Chase, L.P., Hunterdon Ridge, L.P., Huntington Estates Limited Partnership, Hurley Ridge Limited Partnership, Independence Hill, L.P., Kensington Woods Limited Partnership, Knolls of Birmingham, L.P., Lakeridge, L.P., Lakeway Hills Properties, L.P., Laurel Creek, L.P., Loudoun Valley Associates, L.P., Mallard Lakes, L.P., Manalapan Hunt, L.P., Maple Creek Limited Partnership, Marshallton Chase, L.P., Mill Road Estates, L.P., Montgomery Chase, L.P., Montgomery Oaks, L.P., Moorestown Hunt, L.P., Mount Kisco Chase, L.P., NC Country Club Estates Limited Partnership, Newport Ridge Limited Partnership, Newtown Chase Limited Partnership, Northampton Crest, L.P., Northampton Preserve, L.P., Patriots, L.P., The Preserve Limited Partnership, The Preserve at Annapolis Limited Partnership, The Preserve at Boca Raton Limited Partnership, Preston Village Limited Partnership, Princeton Hunt, L.P., Providence Limited Partnership, Providence Hunt, L.P., Providence Plantation Limited Partnership, Regency at Dominion Valley, L.P., River Crossing, L.P., Rolling Greens, L.P., Rose Hollow Crossing Associates, Rose Tree Manor, L.P., Seaside Estates Limited Partnership, Shrewsbury Hunt Limited Partnership, Silverman-Toll Limited Partnership, Somers Chase, L.P., Somerset Development Limited Partnership, South Riding, L.P., South Riding Partners, L.P., Southlake Woods, L.P., Southport Landing Limited Partnership, Springton Pointe, L.P., Stone Mill Estates, L.P., Stoney Ford Estates, L.P., Swedesford Chase, L.P., TBI/Heron Bay Limited Partnership, TBI/Naples Limited Partnership, TBI/Palm Beach Limited Partnership, TB Proprietary, L.P., Tenby Hunt, L.P., Thornbury Knoll, L.P., Timber Ridge Investment Limited Partnership, Toll at Brier Creek Limited Partnership, Toll at Daventry Park, L.P., Toll at Payne Ranch, L.P., Toll at Potomac Woods L.P., Toll at Princeton Walk, L.P., Toll at Westlake, L.P., Toll at Whippoorwill, L.P., Toll Bros. of Tennessee, L.P., Toll Brothers Maryland II Limited Partnership, Toll CA, L.P., Toll CA II, L.P., Toll CA III, L.P., Toll CA IV, L.P., Toll CA V, L.P., Toll CA VI, L.P., Toll CO, L.P., Toll CT Limited Partnership, Toll CT II Limited Partnership, Toll CT Westport Limited Partnership, Toll-Dublin, L.P., Toll Estero Limited Partnership, Toll FL Limited Partnership, Toll Ft. Myers Limited Partnership, Toll IL, L.P., Toll IL II, L.P., Toll IL III, L.P., Toll IL HWCC, L.P., Toll Land Limited Partnership, Toll Land IV Limited Partnership, Toll Land V Limited Partnership, Toll Land VI Limited Partnership, Toll Land VII Limited Partnership, Toll Land VIII Limited Partnership, Toll Land IX Limited Partnership, Toll Land X Limited Partnership, Toll Land XI Limited Partnership, Toll Land XII Limited Partnership, Toll Land XIII Limited Partnership, Toll Land XIV Limited Partnership, Toll Land XV Limited Partnership, Toll Land XVI Limited Partnership, Toll Land XVII Limited Partnership, Toll Land XVIII Limited Partnership, Toll Land XIX Limited Partnership, Toll Land XX Limited Partnership, Toll Land XXI Limited Partnership, Toll Land XXII Limited Partnership, Toll Land XXIII Limited Partnership, Toll Land XXV Limited Partnership, Toll Land XXVI Limited Partnership, Toll Land XXVII Limited Partnership, Toll MD Limited Partnership, Toll MD II Limited Partnership, Toll MD III Limited Partnership, Toll MD IV Limited Partnership, Toll MI Limited Partnership, Toll MI II Limited Partnership, Toll MI III Limited Partnership, Toll Naples Limited Partnership, Toll Naval Associates, Toll NH Limited Partnership, Toll NJ, L.P., Toll NJ II, L.P., Toll NJ III, L.P., Toll NJ IV, L.P., Toll NJ V, L.P., Toll NJ VI, L.P., Toll Northville 21 Limited Partnership, Toll Northville Golf Limited Partnership, Toll NV Limited Partnership, Toll PA, L.P., Toll PA II, L.P., Toll PA III, L.P., Toll PA IV, L.P., Toll PA V, L.P., Toll PA VI, L.P., Toll PA VII, L.P., Toll Peppertree, L.P., Toll Reston Associates, L.P., Toll RI, L.P., Toll RI II, L.P., Toll SC, L.P., Toll SC II, L.P., Toll TX, L.P., Toll TX II, L.P., Toll VA, L.P., Toll VA II, L.P., Toll VA IV, L.P., Toll VA V, L.P., Toll Venice Limited Partnership, Toll YL, L.P., Toll YL II, L.P., Trumbull Hunt Limited Partnership, Uwchlan Woods, L.P., Valley Forge Conservation Holding, L.P., Valley Forge Woods, L.P., Valley View Estates Limited Partnership, Village Partners, L.P., Waldon Preserve Limited Partnership, Warwick Greene, L.P., Warwick Woods, L.P., Washington Greene Development, L.P., West Amwell Limited Partnership, Whiteland Woods, L.P., Wichita Chase, L.P., Willowdale Crossing, L.P., Wilson Concord, L.P., Woodbury Estates, L.P., The Woods at Highland Lakes, L.P., The Woods at Long Valley, L.P., The Woods at Muddy Branch Limited Partnership, Wrightstown Hunt, L.P., Yardley Estates, L.P., Belmont Country Club I LLC, Belmont Country Club II LLC, Big Branch Overlook L.L.C., Brier Creek Country Club I LLC, Brier Creek Country Club II LLC, C.B.A.Z. Construction Company LLC, C.B.A.Z. Holding Company LLC, Creeks Farm L.L.C., Dominion Valley Country Club I LLC, Dominion Valley Country Club II LLC, ELB Investments I LLC, ELB Investments II LLC, FC Investments I LLC, FC Investments II LLC, Feys Property LLC, First Brandywine LLC I, First Brandywine LLC II, Frenchman's Reserve Realty, LLC, Golf I Country Club Estates at Moorpark LLC, Golf II Country Club Estates at Moorpark LLC, High Pointe at Hopewell, LLC, Hunt's Bluff LLC, Long Meadows TBI, LLC, Martin County Improvement Association LLC, Mizner Realty, L.L.C., Mountain View Country Club I LLC, Mountain View Country Club II LLC, Naples Lakes Country Club, L.L.C., Naples TBI Realty, LLC, Northville Hills Golf Club LLC, Nosan & Silverman Homes LLC, Palm Cove Golf & Yacht Club I LLC, Palm Cove Golf & Yacht Club II LLC, Palm Cove Marina I LLC, Palm Cove Marina II LLC, Regency at Denville, LLC, Regency at Dominion Valley LLC, The Regency Golf Club I LLC, The Regency Golf Club II LLC, RiverCrest Sewer Company, LLC, Sapling Ridge, LLC, South Riding Realty LLC, SR Amberlea LLC, Toll Brothers Realty Michigan II LLC, Toll Cedar Hunt LLC, Toll DE X, LLC, Toll-Dublin, LLC, Toll Equipment, L.L.C., Toll NJ I, L.L.C., Toll NJ II, L.L.C., Toll Realty L.L.C., Toll Reston Associates, L.L.C., Toll VA L.L.C., Toll VA II L.L.C., Virginia Construction Co. I, LLC, and Virginia Construction Co. II, LLC. Certain other subsidiaries of Toll Brothers, Inc. which had guaranteed the old notes at the time of their issuance have since been merged into other guarantor entities, dissolved or are not guarantors entities under the bank credit facilities and will not be guarantors of the exchange notes. Certain other subsidiaries which had not guaranteed the old notes at the time of issuance will guarantee the exchange notes. 22 DESCRIPTION OF OTHER INDEBTEDNESS The following is a brief summary of some of the important terms and conditions, including financial covenants, of our other material indebtedness. If we fail to comply with any of these financial covenants, the trustees or the banks, as appropriate, could cause the indebtedness to become due and payable before maturity. In addition, each of the indentures governing the senior notes and the senior subordinated notes of Toll Corp., as well as the terms and conditions of our bank credit facilities, contain cross default provisions which, in general, have the effect that a default under any one of these instruments will constitute a default under all of them. Revolving Credit Facility We have a $540 million revolving credit facility with 16 banks which extends through March 2006. The revolving credit agreement includes financial covenants related to the maximum leverage ratio (as defined in the agreement) we may have, which is not permitted to exceed 2.00 to 1.00, and the maintenance of a minimum tangible net worth (as defined in the agreement) which, at April 30, 2003, was required to exceed approximately $782 million. At April 30, 2003, we had a leverage ratio of approximately .704 to 1.00 and a tangible net worth of approximately $1.19 billion. Term Loan We have a $207.5 million term loan with nine banks which extends to July 2005. The term loan agreement includes financial covenants related to the maximum leverage ratio (as defined in the agreement) we may have, which is not permitted to exceed 2.25 to 1.00, and the maintenance of a minimum tangible net worth (as defined in the agreement) which, at April 30, 2003, was required to exceed approximately $605 million. At April 30, 2003, we had a leverage ratio of approximately .701 to 1.00 and a tangible net worth of approximately $1.20 billion. Senior Subordinated Notes We have five issues of senior subordinated notes currently outstanding: 7 3/ 4% Senior Subordinated Notes due 2007, 8 1/8% Senior Subordinated Notes due 2009, 8% Senior Subordinated Notes due 2009, 8 1/4% Senior Subordinated Notes due 2011 and 8.25% Senior Subordinated Notes due 2011. At April 30, 2003, we had an aggregate of $720 million of these senior subordinated notes outstanding. Each issue of senior subordinated notes was issued for ten years and is redeemable in whole or in part at our option at various prices on or after the fifth anniversary of each issue's issuance. Under the terms of the indentures covering the senior subordinated notes, we are required to maintain a minimum consolidated net worth of $55 million. At April 30, 2003, our consolidated net worth was $1.22 billion. All of these notes are unsecured senior subordinated obligations and rank junior to all of our senior debt. THE EXCHANGE OFFER As used in this "The Exchange Offer" section, all references to "we," "us," "our" and all similar references are to Toll Brothers Finance Corp. As of the date of this prospectus, $300 million in principal amount of the old notes is outstanding. This prospectus, together with the letter of transmittal, is first being sent to holders on ________________, 2003. Purpose of the Exchange Offer We issued the old notes on November 22, 2002 in a transaction exempt from the registration requirements of the Securities Act of 1933 (the "Securities Act"). Accordingly, the old notes may not be reoffered, resold, or otherwise transferred unless so registered or unless an applicable exemption from the registration and prospectus delivery requirements of the Securities Act is available. In connection with the sale of the old notes, we entered into a registration rights agreement, which requires us to: 23 o file a registration statement with the Securities and Exchange Commission (the "Commission") relating to the exchange offer on or prior to 120 days after the date of issuance of the old notes; o use our reasonable efforts to cause the registration statement relating to the exchange offer to become effective under the Securities Act within 235 days after the date of issuance of the old notes; and o use our reasonable best efforts to complete the exchange offer no later than 35 days after the exchange offer registration statement becomes effective. We are making the exchange offer to satisfy our obligations under the registration rights agreement. Other than pursuant to the registration rights agreement, we are not required to file any registration statement to register any outstanding old notes. Holders of old notes who do not tender their old notes or whose old notes are tendered but not accepted in the exchange offer must rely on an exemption from the registration requirements under the securities laws, including the Securities Act, if they wish to sell their old notes. We are making the exchange offer in reliance on the position of the staff of the Commission as set forth in interpretive letters addressed to third parties in other transactions. However, we have not sought our own interpretive letter and we can provide no assurance that the staff would make a similar determination with respect to the exchange offer as it has in interpretive letters to third parties. Based on these interpretations by the staff, we believe that the exchange notes issued in the exchange offer in exchange for old notes may be offered for resale, resold and otherwise transferred by a holder other than any holder who is a broker-dealer or an "affiliate" of ours within the meaning of Rule 405 of the Securities Act, without further compliance with the registration and prospectus delivery requirements of the Securities Act, provided that: o the exchange notes are acquired in the ordinary course of the holder's business; o the holder has no arrangement or understanding with any person to participate in the distribution of the exchange notes; and o the holder is not engaged in, and does not intend to engage in a distribution of the exchange notes. For additional information, see the discussion in this section under the subheading "Resale of Exchange Notes." If you tender in the exchange offer for the purpose of participating in a distribution of the exchange notes, or if you are a broker-dealer who purchased the old notes from us for resale pursuant to Rule 144A or any other available exemption under the Securities Act, you cannot rely on the interpretations by the staff of the Commission stated in these no-action letters. Instead, you must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any sale or transfer, unless an exemption from these requirements is otherwise available. Further, each broker-dealer that receives the exchange notes for its own account in exchange for the old notes, where the broker-dealer acquired the old notes as a result of market-making or other trading activities, must acknowledge in a letter of transmittal that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of those exchange notes. The letter of transmittal states that by making this acknowledgment and delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. We have agreed that this prospectus may be used by a broker-dealer for any resale of exchange notes issued to it in the exchange offer for a period of 270 days after the expiration date of the exchange offer. We have the right, under limited circumstances, to suspend the use of this prospectus by broker- dealers, in which case the 270-day period would be extended by a number of days equal to the period of suspension. See "Plan of Distribution." Terms of the Exchange We are offering to exchange, subject to the conditions described in this prospectus and in the letter of transmittal accompanying this prospectus, $300 million in aggregate principal amount of our 6.875% senior notes due 2012 that have been registered under the Securities Act for a like principal amount of our outstanding unregistered 6.875% senior notes due 2012. The terms of the exchange notes are identical in all material respects to the terms of the old notes, except that: 24 o the exchange notes will have been registered under the Securities Act of 1933, will not contain transfer restrictions, and will not bear legends restricting their transfer; o the exchange notes will not contain terms providing for the payment of additional interest under circumstances relating to our obligation to file and cause to be effective a registration statement; o the exchange notes will be represented by one or more global notes in book entry form unless exchanged for notes in definitive certificated form under the limited circumstances described under "Description of the Exchange Notes - Global Notes and Book-Entry System"; and o the exchange notes will be issuable in denominations of $1,000 and integral multiples thereof. The exchange notes will generally be freely transferable by holders of the exchange notes and will not be subject to the terms of the registration rights agreement. The exchange notes will evidence the same indebtedness as the old notes exchanged therefor and will be entitled to the benefits of the indenture. For additional information, see the section "Description of Exchange Notes" in this prospectus. The exchange offer is not conditioned upon the tender of any minimum principal amount of old notes. The exchange notes will accrue interest from the last interest payment date on which interest was paid on the old notes or, if no interest was paid on the old notes, from the date of issuance of the old notes, which was on November 22, 2002. Holders whose old notes are accepted for exchange will be deemed to have waived the right to receive any interest accrued on the old notes. Tendering holders of the old notes will not be required to pay brokerage commissions or fees or, transfer taxes, except as specified in the instructions in the letter of transmittal, with respect to the exchange of the old notes in the exchange offer. Expiration Date; Extension; Termination; Amendment The exchange offer will expire at 5:00 p.m., New York City time, on ___________, 2003, unless we, in our sole discretion, have extended the period of time for which the exchange offer is open. The time and date, as it may be extended, is referred to herein as the "expiration date." The expiration date will be at least 20 business days after the commencement of the exchange offer in accordance with Rule 14e-1(a) under the Exchange Act. We expressly reserve the right, at any time or from time to time, to extend the period of time during which the exchange offer is open, and thereby delay acceptance for exchange of any old notes. We will extend the expiration date by giving oral or written notice of the extension to the exchange agent and by timely public announcement no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date. During the extension, all old notes previously tendered will remain subject to the exchange offer unless properly withdrawn. We expressly reserve the right to: o terminate or amend the exchange offer and not to accept for exchange any old notes not previously accepted for exchange upon the occurrence of any of the events specified in this section under the subheading "Certain Conditions to the Exchange Offer" which have not been waived by us; and o amend the terms of the exchange offer in any manner which, in our good faith judgment, is advantageous to the holders of the old notes, whether before or after any tender of the old notes. If any termination or amendment occurs, we will notify the exchange agent and will either issue a press release or give oral or written notice to the holders of the old notes as promptly as practicable. For purposes of the exchange offer, a "business day" means any day other than Saturday, Sunday or a date on which banking institutions are required or authorized by New York State law to be closed, and consists of the time period from 12:01 a.m. through 12:00 midnight, New York City time. Unless we terminate the exchange offer prior to 5:00 p.m., New York City time, on the expiration date, we will exchange the exchange notes for the old notes promptly following the expiration date. 25 Procedures For Tendering Old Notes Our acceptance of old notes tendered by a holder will constitute a binding agreement between the tendering holder and us upon the terms and subject to the conditions described in this prospectus and in the accompanying letter of transmittal. All references in this prospectus to the letter of transmittal are deemed to include a facsimile of the letter of transmittal. A holder of old notes may tender the old notes by: o properly completing and signing the letter of transmittal; o properly completing any required signature guarantees; o properly completing any other documents required by the letter of transmittal; and o delivering all of the above, together with the certificate or certificates representing the old notes being tendered, to the exchange agent at its address set forth below at or prior to 5:00 p.m., New York City time on the expiration date; or o complying with the procedure for book-entry transfer described below; or o complying with the guaranteed delivery procedures described below. The method of delivery of old notes, letters of transmittal and all other required documents is at the election and risk of the holders. If the delivery is by mail, it is recommended that registered mail properly insured, with return receipt requested, be used. In all cases, sufficient time should be allowed to ensure timely delivery. Holders should not send old notes or letters of transmittal to us. The signature on the letter of transmittal need not be guaranteed if: o tendered old notes are registered in the name of the signer of the letter of transmittal; and o the exchange notes to be issued in exchange for the old notes are to be issued in the name of the holder; and o any untendered old notes are to be reissued in the name of the holder. In any other case, the tendered old notes must be: o endorsed or accompanied by written instruments of transfer in form satisfactory to us; o duly executed by the holder; and o the signature on the endorsement or instrument of transfer must be guaranteed by a bank, broker, dealer, credit union, savings association, clearing agency or other institution, each an "eligible institution" that is a member of a recognized signature guarantee medallion program within the meaning of Rule 17Ad-15 under the Exchange Act. If the exchange notes and/or old notes not exchanged are to be delivered to an address other than that of the registered holder appearing on the note register for the old notes, the signature in the letter of transmittal must be guaranteed by an eligible institution. The exchange agent will make a request within two business days after the date of receipt of this prospectus to establish accounts with respect to the old notes at The Depository Trust Company, the "book-entry transfer facility," for the purpose of facilitating the exchange offer. We refer to the Depository Trust Company in this prospectus as "DTC." Subject to establishing the accounts, any financial institution that is a participant in the book-entry transfer facility's system may make book-entry delivery of old notes by causing the book-entry transfer facility to transfer the old notes into the exchange agent's account with respect to the old notes in accordance with the book-entry transfer facility's procedures for the transfer. Although delivery of old notes may be effected through book-entry transfer into the exchange agent's account at the book-entry transfer facility, an appropriate letter of transmittal with any required signature guarantee and all other required documents, or an agent's message, must in each case be properly transmitted to and received or confirmed by the exchange agent at its address set forth below prior to the expiration date, or, if 26 the guaranteed delivery procedures described below are complied with, within the time period provided under such procedures. The exchange agent and DTC have confirmed that the exchange offer is eligible for the DTC Automated Tender Offer Program. We refer to the Automated Tender Offer Program in this prospectus as "ATOP." Accordingly, DTC participants may, in lieu of physically completing and signing the letter of transmittal and delivering it to the exchange agent, electronically transmit their acceptance of the exchange offer by causing DTC to transfer old notes to the exchange agent in accordance with DTC's ATOP procedures for transfer. DTC will then send an agent's message. The term "agent's message" means a message which: o is transmitted by DTC; o received by the exchange agent and forming part of the book-entry transfer; o states that DTC has received an express acknowledgment from a participant in DTC that is tendering old notes which are the subject of the book-entry transfer; o states that the participant has received and agrees to be bound by all of the terms of the letter of transmittal; and o states that we may enforce the agreement against the participant. If a holder desires to accept the exchange offer and time will not permit a letter of transmittal or old notes to reach the exchange agent before the expiration date or the procedure for book-entry transfer cannot be completed on a timely basis, the holder may effect a tender if the exchange agent has received at its address set forth below on or prior to the expiration date, a letter, telegram or facsimile transmission, and an original delivered by guaranteed overnight courier, from an eligible institution setting forth: o the name and address of the tendering holder; o the names in which the old notes are registered and, if possible, the certificate numbers of the old notes to be tendered; and o a statement that the tender is being made thereby and guaranteeing that within three business days after the expiration date, the old notes in proper form for transfer, or a confirmation of book-entry transfer of such old notes into the exchange agent's account at the book-entry transfer facility and an agent's message, will be delivered by the eligible institution together with a properly completed and duly executed letter of transmittal and any other required documents. Unless old notes being tendered by the above-described method are deposited with the exchange agent, a tender will be deemed to have been received as of the date when: o the tendering holder's properly completed and duly signed letter of transmittal, or a properly transmitted agent's message, accompanied by the old notes or a confirmation of book-entry transfer of the old notes into the exchange agent's account at the book-entry transfer facility is received by the exchange agent; or o a notice of guaranteed delivery or letter, telegram or facsimile transmission to similar effect from an eligible institution is received by the exchange agent. Issuances of exchange notes in exchange for old notes tendered pursuant to a notice of guaranteed delivery or letter, telegram or facsimile transmission to similar effect by an eligible institution will be made only against deposit of the letter of transmittal and any other required documents and the tendered old notes or a confirmation of book-entry and an agent's message. All questions as to the validity, form, eligibility, including time of receipt, and acceptance of old notes tendered for exchange will be determined by us in our sole discretion, which determination will be final and binding. We reserve the absolute right to reject any and all tenders of any old notes not properly tendered or not to accept any old notes which acceptance might, in our judgment or the judgment of our counsel, be unlawful. We also reserve the absolute right to waive any defects or irregularities or conditions of the 27 exchange offer as to any old notes either before or after the expiration date, including the right to waive the ineligibility of any holder who seeks to tender old notes in the exchange offer. The interpretation of the terms and conditions of the exchange offer, including the letter of transmittal and the instructions contained in the letter of transmittal, by us will be final and binding on all parties. Unless waived, any defects or irregularities in connection with tenders of old notes for exchange must be cured within such reasonable period of time as we determine. Neither we, the exchange agent nor any other person has any duty to give notification of any defect or irregularity with respect to any tender of old notes for exchange, nor will any of us incur any liability for failure to give such notification. If the letter of transmittal is signed by a person or persons other than the registered holder or holders of old notes, the old notes must be endorsed or accompanied by appropriate powers of attorney, in either case signed exactly as the name or names of the registered holder or holders appear on the old notes. If the letter of transmittal or any old notes or powers of attorney are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and, unless waived by us, such persons must submit proper evidence satisfactory to us of their authority to so act. By tendering, each holder represents to us that, among other things: o the exchange notes acquired pursuant to the exchange offer are being acquired in the ordinary course of business of the holder; o the holder is not participating, does not intend to participate, and has no arrangement or understanding with any person to participate, in the distribution of the exchange notes; and o the holder is not an "affiliate" of ours within the meaning of Rule 405 of the Securities Act. Each broker-dealer that receives exchange notes for its own account in exchange for old notes, where the broker-dealer acquired the old notes as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the exchange notes. For additional information, see the section "Plan of Distribution" in this prospectus. Terms and Conditions of the Letter of Transmittal The letter of transmittal contains, among other things, the following terms and conditions, which are part of the exchange offer. The party tendering old notes for exchange exchanges, assigns and transfers the old notes to us and irrevocably constitutes and appoints the exchange agent as the party's agent and attorney-in-fact to cause the old notes to be assigned, transferred and exchanged. We refer to the party tendering notes herein as the "transferor." The transferor represents and warrants that the transferor has full power and authority to tender, exchange, assign and transfer the old notes and to acquire exchange notes issuable upon the exchange of the tendered old notes, and that, when the same are accepted for exchange, we will acquire good and unencumbered title to the tendered old notes, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The transferor also warrants that the transferor will, upon request, execute and deliver any additional documents deemed by the exchange agent or us to be necessary or desirable to complete the exchange, assignment and transfer of tendered old notes or transfer ownership of the old notes on the account books maintained by a book-entry transfer facility. The transferor further agrees that acceptance of any tendered old notes by us and the issuance of exchange notes in exchange for old notes will constitute performance in full by us of various of our obligations under the registration rights agreement. All authority conferred by the transferor will survive the death or incapacity of the transferor and every obligation of the transferor will be binding upon the heirs, legal representatives, successors, assigns, executors and administrators of the transferor. The transferor certifies that the transferor: is not an "affiliate" of ours within the meaning of Rule 405 under the Securities Act; is acquiring the exchange notes offered hereby in the ordinary course of the transferor's business; and has no arrangement with any person to participate in the distribution of the exchange notes. 28 Each holder, other than a broker-dealer, must acknowledge that the holder is not engaged in, and does not intend to engage in, a distribution of the exchange notes. Each transferor which is a broker-dealer receiving the exchange notes for its own account must acknowledge that it will deliver a prospectus in connection with any resale of the exchange notes. By so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. Withdrawal Rights Tenders of old notes may be withdrawn at any time before 5:00 p.m. New York City time, on the expiration date. For a withdrawal to be effective, a written notice of withdrawal sent by telex, facsimile transmission, or letter must be received by the exchange agent at the address set forth in this prospectus before 5:00 p.m. New York City time, on the expiration date. Any notice of withdrawal must: o specify the name of the person having tendered the old notes to be withdrawn; o identify the old notes to be withdrawn, including the certificate number or numbers and principal amount of such old notes; o include a statement that the holder is withdrawing the holder's election to have the old notes exchanged; o be signed by the holder in the same manner as the original signature on the letter of transmittal by which the old notes were tendered or as otherwise described above, including any required signature guarantees, or be accompanied by documents of transfer sufficient to have the trustee under the indenture register the transfer of the old notes into the name of the person withdrawing the tender; and o specify the name in which any such old notes are to be registered, if different from that of the person who tendered the old notes. The exchange agent will return the properly withdrawn old notes promptly following receipt of the notice of withdrawal. If old notes have been tendered pursuant to the procedure for book-entry transfer, any notice of withdrawal must specify the name and number of the account at the book-entry transfer facility to be credited with the withdrawn old notes or otherwise comply with the book-entry transfer facility procedure. All questions as to the validity of notices of withdrawals, including time of receipt, will be determined by us and our determination will be final and binding on all parties. Any old notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the exchange offer. Any old notes which have been tendered for exchange but which are not exchanged for any reason will be returned to the holder without cost to the holder. In the case of old notes tendered by book-entry transfer into the exchange agent's account at the book- entry transfer facility pursuant to the book-entry transfer procedures described above, the old notes will be credited to an account with the book-entry transfer facility specified by the holder. In either case, the old notes will be returned promptly after withdrawal, rejection of tender or termination of the exchange offer. Properly withdrawn old notes may be retendered by following one of the procedures described in this section under the subheading "Procedures for Tendering Old Notes" at any time before the expiration date. Acceptance of Old Notes for Exchange; Delivery of Exchange Notes Upon satisfaction or waiver of all of the conditions to the exchange offer, we will accept, on the expiration date, all old notes properly tendered and not validly withdrawn and will issue or cause to be issued the exchange notes promptly after such acceptance. See the discussion in this section under the subheading "Certain Conditions to the Exchange Offer" for more detailed information. For purposes of the exchange offer, we will be deemed to have accepted properly tendered old notes for exchange when, and if, we have given oral or written notice of our acceptance to the exchange agent. 29 For each old note accepted for exchange, the holder of the old note will receive an exchange note having a principal amount equal to that of the surrendered old note. In all cases, issuance of exchange notes for old notes that are accepted for exchange pursuant to the exchange offer will be made only after: o timely receipt by the exchange agent of certificates for the old notes or a timely book-entry confirmation of the old notes into the exchange agent's account at the book-entry transfer facility; o a properly completed and duly executed letter of transmittal, or a properly transmitted agent's message; and o timely receipt by the exchange agent of all other required documents. If any tendered old notes are not accepted for any reason described in the terms and conditions of the exchange offer or if old notes are submitted for a greater principal amount than the holder desires to exchange, the unaccepted or nonexchanged old notes will be returned without expense to the tendering holder of the old notes. In the case of old notes tendered by book-entry transfer into the exchange agent's account at the book-entry transfer facility pursuant to the book-entry transfer procedures described above, the non-exchanged old notes will be credited to an account maintained with the book-entry transfer facility. In either case, the old notes will be returned as promptly as practicable after the expiration of the exchange offer. Certain Conditions to the Exchange Offer Notwithstanding any other provision of the exchange offer, or any extension of the exchange offer, we will not be required to accept for exchange, or to issue exchange notes in exchange for, any old notes and may terminate or amend the exchange offer, by oral or written notice to the exchange agent or by a timely press release, if, at any time before the acceptance of the old notes for exchange or the exchange of the exchange notes for such old notes, in our reasonable judgment any of the following conditions exist: o any action or proceeding is instituted or threatened in any court or by or before any governmental agency with respect to the exchange offer which, in our judgment would reasonably be expected to impair our ability to proceed with the exchange offer; or o the exchange offer, or the making of any exchange by a holder, violates applicable law or any applicable interpretation of the staff of the Commission. Regardless of whether any of the conditions has occurred, we may amend the exchange offer in any manner which, in our good faith judgment, is advantageous to holders of the old notes. The conditions described above are for our sole benefit and may be asserted by us regardless of the circumstances giving rise to the condition or we may waive any condition in whole or in part at any time and from time to time in our sole discretion. Our failure at any time to exercise any of the rights described above will not be deemed a waiver of the right and each right will be deemed an ongoing right which we may assert at any time and from time to time. If we waive or amend the conditions above, we will, if required by law, extend the exchange offer for a minimum of five business days from the date that we first give notice, by public announcement or otherwise, of the waiver or amendment, if the exchange offer would otherwise expire within the five business-day period. Any determination by us concerning the events described above will be final and binding upon all parties. The exchange offer is not conditioned upon any minimum principal amount of old notes being tendered. 30 Exchange Agent Bank One Trust Company, National Association has been appointed as the exchange agent for the exchange offer. All executed letters of transmittal should be directed to the exchange agent at one of the addresses set forth below:
By Registered or Certified Facsimile Transactions: Mail: (Eligible Institutions Only) By Hand or Overnight Delivery: ----- ---------------------------- ------------------------------ Bank One (614) 248-9987 Bank One Trust Company, N.A. Trust 1111 Polaris Parkway Company, N.A. To Confirm by Telephone Suite N1-OH1-0184 1111 Polaris or for Information Call: Columbus, Ohio 43240 Parkway ------------------------ Attn: Exchanges Suite N1-OH1- (800) 346-5153 0184 Columbus, Ohio 43240 Attn: Exchanges
You should direct questions, requests for assistance, requests for additional copies of this prospectus or of the letter of transmittal and requests for notices of guaranteed delivery to the exchange agent at the address and telephone number set forth in the letter of transmittal. Delivery to an address other than as set forth on the letter of transmittal, or transmissions of instructions via a facsimile number other than the one set forth on the letter of transmittal, will not constitute a valid delivery. Solicitation of Tenders; Fees and Expenses We have not retained any dealer-manager in connection with the exchange offer and will not make any payments to brokers, dealers or others soliciting acceptances of the exchange offer. We, however, will pay the exchange agent reasonable and customary fees for its services and will reimburse it for its reasonable out-of-pocket expenses in connection therewith. We will also pay brokerage houses and other custodians, nominees and fiduciaries the reasonable out-of- pocket expenses incurred by them in forwarding copies of this and other related documents to the beneficial owners of the old notes and in handling or forwarding tenders for their customers. We will pay the estimated cash expenses to be incurred in connection with the exchange offer. We estimate the expenses to be approximately $250,000, which includes fees and expenses of the exchange agent and trustee, registration fees, and accounting, legal, printing and related fees and expenses. No person has been authorized to give any information or to make any representations in connection with the exchange offer other than those contained in this prospectus. If given or made, such information or representations should not be relied upon as having been authorized by us. Neither the delivery of this prospectus nor any exchange made pursuant to this prospectus, under any circumstances, creates any implication that there has been no change in our affairs since the respective dates as of which information is given in this prospectus. The exchange offer is not being made to, and tenders will not be accepted from or on behalf of, holders of old notes in any jurisdiction in which the making of the exchange offer or the acceptance of the exchange offer would not be in compliance with the laws of the jurisdiction. However, we may, at our discretion, take such action as we may deem necessary to make the exchange offer in the jurisdiction and extend the exchange offer to holders of old notes in the jurisdiction. In any jurisdiction the securities laws or blue sky laws of which require the exchange offer to be made by a licensed broker or dealer, the exchange offer is being made on our behalf by one or more registered brokers or dealers which are licensed under the laws of the jurisdiction. Transfer Taxes We will pay all transfer taxes, if any, applicable to the exchange of old notes pursuant to the exchange offer. However, the transfer taxes will be payable by the tendering holder if: 31 o certificates representing exchange notes or old notes for principal amounts not tendered or accepted for exchange are to be delivered to, or are to be issued in the name of, any person other than the registered holder of the old notes tendered; or o tendered old notes are registered in the name of any person other than the person signing the letter of transmittal; or o a transfer tax is imposed for any reason other than the exchange of old notes pursuant to the exchange offer. We will bill the amount of the transfer taxes directly to the tendering holder if satisfactory evidence of payment of the taxes or exemption therefrom is not submitted with the letter of transmittal. Accounting Treatment For accounting purposes, we will not recognize gain or loss upon the exchange of the exchange notes for old notes. We will amortize costs incurred in connection with the issuance of the exchange notes over the term of the exchange notes. Consequences of Failure To Exchange Holders of old notes who do not exchange their old notes for exchange notes pursuant to the exchange offer will continue to be subject to the restrictions on transfer of the old notes as described in the legend on the old notes. Old notes not exchanged pursuant to the exchange offer will continue to remain outstanding in accordance with their terms. In general, the old notes may not be offered or sold unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not currently anticipate that we will register the old notes under the Securities Act. Participation in the exchange offer is voluntary, and holders of old notes should carefully consider whether to participate. Holders of old notes are urged to consult their financial and tax advisors in making their own decision on what action to take. As a result of the making of, and upon acceptance for exchange of all validly tendered old notes pursuant to the terms of, this exchange offer, we will have fulfilled a covenant contained in the registration rights agreement. Holders of old notes who do not tender their old notes in the exchange offer will continue to hold the old notes and will be entitled to all the rights and subject to all the limitations applicable to the old notes under the indenture, except for any rights under the registration rights agreement that by their terms terminate or cease to have further effectiveness as a result of the making of this exchange offer. All untendered old notes will continue to be subject to the restrictions on transfer described in the indenture. To the extent that old notes are tendered and accepted in the exchange offer, the trading market for untendered old notes could be adversely affected. We may in the future seek to acquire, subject to the terms of the indenture, untendered old notes in open market or privately negotiated transactions, through subsequent exchange offers or otherwise. We have no present plan to acquire any old notes which are not tendered in the exchange offer. Resale of Exchange Notes We are making the exchange offer in reliance on the position of the staff of the Commission as set forth in interpretive letters addressed to third parties in other transactions. However, we have not sought our own interpretive letter and we can provide no assurance that the staff would make a similar determination with respect to the exchange offer as it has in such interpretive letters to third parties. Based on these interpretations by the staff, we believe that the exchange notes issued pursuant to the exchange offer in exchange for old notes may be offered for resale, resold and otherwise transferred by a holder, other than any holder who is a broker- dealer or an "affiliate" of ours within the meaning of Rule 405 of the Securities Act, without further compliance with the registration and prospectus delivery requirements of the Securities Act, provided that: 32 o the exchange notes are acquired in the ordinary course of the holder's business; and o the holder is not participating, and has no arrangement or understanding with any person to participate, in a distribution of the exchange notes. However, any holder who: o is an "affiliate" of ours; o has an arrangement or understanding with respect to the distribution of the exchange notes to be acquired pursuant to the exchange offer; or o is a broker-dealer who purchased old notes from us to resell pursuant to Rule 144A or any other available exemption under the Securities Act, cannot rely on the applicable interpretations of the staff and must comply with the registration and prospectus delivery requirements of the Securities Act. A broker-dealer who holds old notes that were acquired for its own account as a result of market-making or other trading activities may be deemed to be an "underwriter" within the meaning of the Securities Act and must, therefore, deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of exchange notes. Each such broker-dealer that receives exchange notes for its own account in exchange for old notes, where the broker-dealer acquired the old notes as a result of market-making activities or other trading activities, must acknowledge, as provided in the letter of transmittal, that it will deliver a prospectus in connection with any resale of such exchange notes. For more detailed information, see the section "Plan of Distribution" in this prospectus. Shelf Registration Statement If: o any changes in law or the applicable interpretations of the staff of the Commission do not permit us to effect the exchange offer; or o for any reason the exchange offer registration statement is not declared effective within 235 days following the date of original issuance of the old notes or the exchange offer, is not consummated within 35 days after the exchange offer registration statement is declared effective; or o any holder of the old notes, other than the initial purchasers, is not eligible to participate in the exchange offer or elects to participate in the exchange offer but does not receive freely transferable exchange notes; or o any initial purchaser so requests under specified circumstances; or o in the judgment of the holders of a majority of the old notes, the interests of the holders of the old notes, taken as a whole, would be materially adversely affected by consummation of the exchange offer, we will, at our cost: o file a shelf registration statement with the Commission no later than (a) the 235th day after the date of original issuance of the old notes or (b) the 35th day after such filing obligation arises, whichever is later; o use our best efforts to cause the shelf registration statement to be declared effective by the Commission as promptly as practicable, but in no event later than the 270th day after the date of original issuance of the old notes (or 30 days after request by any initial purchaser); and o use our best efforts to keep the shelf registration statement continuously effective for a period of two years after the latest date on which old notes were originally issued or, if earlier, until all the Registrable Notes (as defined below) covered by the shelf registration statement are sold thereunder or cease to be Registrable Notes. 33 We will, in the event of the filing of a shelf registration statement, provide to each holder of the old notes copies of the prospectus which is a part of the shelf registration statement, notify each holder when the shelf registration statement for the old notes has become effective and take other actions as are required to permit unrestricted resales of the old notes. A holder of old notes that sells the old notes pursuant to the shelf registration statement generally: o will be required to be named as a selling securityholder in the related prospectus and to deliver a prospectus to purchasers; o will be subject to some of the civil liability provisions under the Securities Act in connection with the sales; and o will be bound by the provisions of the registration rights agreement which are applicable to the holder, including certain indemnification obligations. Additional Interest The registration rights agreement states that if a Registration Default (as defined below) occurs, then Toll Brothers Finance Corp. will be required to pay additional interest to each holder of Registrable Notes. During the first 90-day period that a Registration Default occurs and is continuing, Toll Brothers Finance Corp. will pay additional interest on the Registrable Notes at a rate of 0.25% per year. If a Registration Default shall occur and be continuing for a period of more than 90 days, then the amount of additional interest Toll Brothers Finance Corp. will be required to pay on the Registrable Notes will increase, effective from and after the 91st day in such period, by an additional 0.25% per year until all Registration Defaults have been cured. However, in no event will the rate of additional interest exceed 0.50% per year. Such additional interest will accrue only for those days that a Registration Default occurs and is continuing. All accrued additional interest will be paid to the holders of the old notes in the same manner as interest payments on the Registrable Notes, with payments being made on the interest payment dates for old notes. Following the cure of all Registration Defaults, no more additional interest will accrue unless a subsequent Registration Default occurs. Additional interest will not be payable on any old notes other than Registrable Notes. You will not be entitled to receive any additional interest on any Registrable Notes if you were, at any time while the exchange offer was pending, eligible to exchange, and did not validly tender, such Registrable Notes for exchange notes in the exchange offer. A "Registration Default" shall occur if: o we fail to file any of the registration statements required by the registration rights agreement on or before the date specified for such filing; or o any of such registration statements is not declared effective by the Commission on or before the date specified for such effectiveness; or o we fail to complete the exchange offer on or before the date specified for such completion; or o the shelf registration statement is declared effective but thereafter ceases to be effective or usable in connection with resales of the old notes during the period specified in the registration rights agreement, except as a result of the exercise by us of our right to suspend use of the shelf registration statement and the related prospectus as described under "Shelf Registration" above. "Registrable Notes" means the old notes, provided, however, that any old notes shall cease to be Registrable Notes when (1) a registration statement with respect to such old notes shall have been declared effective under the Securities Act and such old notes shall have been disposed of pursuant to the registration statement, (2) such old notes shall have been sold to the public pursuant to Rule 144(k) (or any similar provision then in force, but not Rule 144A) under the Securities Act, (3) such old notes shall have ceased to be outstanding or (4) such old notes have been exchanged for exchange notes which have been registered pursuant to the exchange offer registration statement upon consummation of the exchange offer subject, in the case of this clause (4), to certain exceptions. 34 DESCRIPTION OF EXCHANGE NOTES General The exchange notes will be issued under an indenture dated as of November 22, 2002 (the "Base Indenture"), among Toll Brothers Finance Corp., as issuer, the guarantors named therein, including Toll Brothers, Inc. (collectively, the "Guarantors"), and Bank One Trust Company, National Association, as trustee (the "Trustee"). A copy of the Base Indenture and the authorizing resolutions related thereto (together with the Base Indenture, the "Indenture") have been filed as exhibits to the registration statement which includes this prospectus. The terms of the exchange notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. We have summarized selected provisions of the Indenture below. The summary is not complete. Copies of the Indenture are available upon request made to us. You should read the Indenture for provisions that may be important to you. A summary of some of the defined terms used in the Indenture is provided below under "Definitions." Reference is made to the Indenture for the full definition of all these terms, as well as any other capitalized terms used in this prospectus for which no definition is provided. As used in this "Description of Exchange Notes" section, all references to "we," "us," "our" and all similar references are to Toll Brothers Finance Corp. Principal, Maturity and Interest The Indenture will not limit the amount of senior debt securities that we may issue under the Indenture. We may issue senior debt securities under the Indenture from time to time in one or more series. The old notes and the exchange notes will constitute a single series of debt securities under the Indenture and will vote together as a single series of senior debt securities under the Indenture and will vote together as a single class for purposes of determining whether holders of the requisite percentage in principal amount thereof have taken actions or exercised rights they are entitled to take or exercise under the Indenture. The exchange notes will be unsecured and unsubordinated obligations of Toll Brothers Finance Corp. and will rank equally and ratably with its other unsecured and unsubordinated indebtedness. At April 30, 2003, Toll Brothers Finance Corp. had $300 million aggregate principal amount of such unsecured and unsubordinated indebtedness outstanding, such indebtedness consisting of the $300 million aggregate principal amount of old notes. Toll Brothers, Inc. conducts its operations through its subsidiaries and therefore it is primarily dependent on the earnings and cash flows of its subsidiaries to meet its debt service obligations. Any right Toll Brothers Finance Corp., Toll Brothers, Inc. or Toll Brothers, Inc.'s creditors have to participate in the assets of any of Toll Brothers, Inc.'s subsidiaries upon any liquidation or reorganization of any such subsidiary will be subject to the prior claims of that subsidiary's creditors, including trade creditors. Accordingly, the exchange notes will be structurally subordinated to the creditors of Toll Brothers, Inc.'s subsidiaries. The exchange notes will, however, have the benefit of the guarantees from Guarantors (each, a "Guarantee" and collectively, the "Guarantees"), which include Toll Brothers, Inc. and Toll Brothers, Inc.'s subsidiaries that guarantee the Bank Credit Facilities. The exchange notes will continue to be structurally subordinated to the prior claims of creditors of non-Guarantor subsidiaries of Toll Brothers, Inc., including trade creditors, the aggregate amount of which, at April 30, 2003, was approximately $108 million. Further, each Guarantee from a Guarantor, is unsecured and, accordingly, will be subordinated to the secured debt of that Guarantor. At April 30, 2003, the Guarantors had approximately $42.8 million aggregate principal amount of such Guarantor secured indebtedness for borrowed money outstanding, comprised principally of indebtedness secured by purchase money mortgages on certain of their respective real property. Toll Brothers, Inc.'s subsidiaries are separate and distinct legal entities and have no obligation, contingent or otherwise, to pay any amounts due pursuant to the exchange notes or to make any funds available therefor, whether by dividends, loans or other payments, other than if and as expressly provided in the Guarantees. The payment of dividends and the making of loans and advances to Toll Brothers, Inc. by its subsidiaries are 35 subject to contractual, statutory or regulatory restrictions, are contingent upon the earnings of those subsidiaries and are subject to various business considerations. The exchange notes will mature on November 15, 2012. Interest on the exchange notes will accrue at a rate of 6.875% per annum, will be computed on the basis of a 360-day year of twelve 30-day months and will be payable semi- annually in arrears on each May 15 and November 15 (each an "Interest Payment Date"), commencing May 15, 2003. Interest will accrue from November 22, 2002, the date of issuance of the old notes, or, if interest has already been paid, from the date it was most recently paid. Toll Brothers Finance Corp. will pay interest to the persons in whose names the exchange notes are registered at the close of business on November 1 or May 1, as the case may be, before any Interest Payment Date. We expect that payments of principal, premium, if any, and interest to owners of beneficial interests in global notes will be made in accordance with the procedures of The Depository Trust Company ("DTC") and its participants in effect from time to time. DTC will initially act as the depository for the global notes. The exchange notes will not be entitled to the benefit of any sinking fund or mandatory redemption provisions. The exchange notes will be issued only in fully registered form without coupons, in denominations of $1,000 and multiples thereof. The exchange notes will initially be represented by one or more global notes in book-entry form. See "Global Notes and Book Entry System." The principal of, premium, if any, and interest on the exchange notes will be payable, and, subject to the restrictions on transfer described herein. The exchange notes may be surrendered for registration of transfer or exchange, at the office or agency maintained by us for that purpose in the Borough of Manhattan, The City of New York; provided that payments of interest may be made at our option by check mailed to the address of the persons entitled thereto or by transfer to an account maintained by the payee with a bank located in the United States. The office or agency initially maintained by us for the foregoing purposes shall be the office of the Trustee. No service charge will be made for any registration of transfer or exchange of the exchange notes, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith. If any Interest Payment Date or maturity date of any of the exchange notes is not a business day at any place of payment, then payment of principal, premium, if any, and interest need not be made at such place of payment on that date but may be made on the next succeeding business day at that place of payment, and no interest will accrue on the amount payable for the period from and after such Interest Payment Date or maturity date, as the case may be. The Indenture does not limit the amount of indebtedness that Toll Brothers Finance Corp., Toll Brothers, Inc. or Toll Brothers, Inc.'s subsidiaries may issue. The Indenture does not contain covenants or other provisions designed to afford holders of the exchange notes protection in the event of a highly leveraged transaction, change in credit rating or other similar occurrence. We expect that interests in the global notes will trade in DTC's Same-Day Funds Settlement System and secondary market trading activity in these interests will therefore be required by DTC to settle in immediately available funds. The exchange notes are expected to be listed on the New York Stock Exchange. However, there can be no assurance as to the development or liquidity of any trading market for the exchange notes. If a trading market does not develop or is not maintained, you may experience difficulty in reselling exchange notes, or you may be unable to sell them at all. If a public trading market develops for the exchange notes, it may not be liquid and it may be discontinued at any time. Moreover, future trading prices of the exchange notes would depend on many factors, including, among others, prevailing interest rates, our operating results and the market for similar securities. Depending on prevailing interest rates, our financial condition, the market for similar securities and other factors, the exchange notes could trade at a discount from their principal amount. 36 Guarantees Payment of principal, premium, if any, and interest on the exchange notes will be fully and unconditionally guaranteed, jointly and severally, on a senior basis by each of the Guarantors. Each Guarantee will be a full and unconditional unsecured senior obligation of the Guarantor issuing such Guarantee, ranking equal in right of payment with all existing and future debt of the Guarantor that is pari passu with the Guarantee. Each Guarantee from a Guarantor will be subordinated to the secured debt of that Guarantor. At April 30, 2003, the Guarantors had approximately $42.8 million aggregate principal amount of such secured indebtedness, principally in the form of purchase money mortgages on certain of their respective real property. Further, the Guarantee of Toll Brothers, Inc. will be structurally subordinated to the prior claims of creditors, including trade creditors, of Toll Brothers, Inc.'s non- Guarantor subsidiaries, the aggregate amount of which, at April 30, 2003, was approximately $108 million. The Indenture provides that, in the event any Guarantee would constitute or result in a violation of any applicable fraudulent conveyance or similar law of any relevant jurisdiction, the liability of the Guarantor under such Guarantee will be reduced to the maximum amount, after giving effect to all other contingent and other liabilities of such Guarantor, permissible under the applicable fraudulent conveyance or similar law. The Indenture provides that any subsidiary of Toll Brothers, Inc. that provides a guarantee of the Bank Credit Facilities will guarantee the exchange notes. The Indenture further provides that any Guarantor other than Toll Brothers, Inc. may be released from its Guarantee so long as (1) no default or Event of Default exists or would result from release of such Guarantee, (2) the Guarantor being released has Consolidated Net Worth of less than 5% of Toll Brothers, Inc.'s Consolidated Net Worth as of the end of the most recent fiscal quarter, (3) the Guarantors released from their Guarantees in any fiscal year comprised in the aggregate less than 10% (or 15% if and to the extent necessary to permit the cure of a default) of Toll Brothers, Inc.'s Consolidated Net Worth as of the end of the most recent fiscal quarter, (4) such release would not have a material adverse effect on the homebuilding business of Toll Brothers, Inc. and its subsidiaries and (5) the Guarantor is released from its guaranty(ees) under the Bank Credit Facilities. If there are no guarantors under the Bank Credit Facilities, Guarantors under the Indenture, other than Toll Brothers, Inc., will be released from their Guarantees. Optional Redemption We may, at our option, redeem the exchange notes in whole at any time or in part from time to time, on at least 30 but not more than 60 days' prior notice, at a redemption price equal to the greater of: o 100% of their principal amount, and o the present value of the Remaining Scheduled Payments (as defined below) on the exchange notes being redeemed on the redemption date, discounted to the date of redemption, on a semiannual basis, at the Treasury Rate plus 45 basis points (0.45%). We will also accrue interest on the exchange notes to the date of redemption. In determining the redemption price and accrued interest, interest will be calculated on the basis of a 360-day year consisting of twelve 30-day months. If money sufficient to pay the redemption price of and accrued interest on the exchange notes to be redeemed is deposited with the Trustee on or before the redemption date, on and after the redemption date interest will cease to accrue on the exchange notes (or such portions thereof) called for redemption and such exchange notes will cease to be outstanding. In determining whether to redeem the exchange notes, we will generally consider one or more of the following factors: o prevailing interest rates; o available cash; and o other business considerations. 37 "Comparable Treasury Issue" means, with respect to the exchange notes, the United States Treasury security selected by the Reference Treasury Dealer as having a maturity comparable to the remaining term of the exchange notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of such exchange notes. "Comparable Treasury Price" means, with respect to any redemption date, (1) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third business day preceding such redemption date, as set forth in the daily statistical release (or any successor release) published by the Federal Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S. Government Securities" or (2) if such release (or any successor release) is not published or does not contain such price on such business day, (A) the average of the Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Trustee obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations. "Reference Treasury Dealer" means (A) Banc of America Securities LLC, Salomon Smith Barney Inc. or one of the other initial purchasers (or their respective affiliates which are Primary Treasury Dealers), and their respective successors; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a "Primary Treasury Dealer"), we will substitute therefor another Primary Treasury Dealer; and (B) any other Primary Treasury Dealer(s) selected by us. "Reference Treasury Dealer Quotations" means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. on the third business day preceding such redemption date. "Remaining Scheduled Payments" means, with respect to any exchange notes, the remaining scheduled payments of the principal thereof to be redeemed and interest thereon that would be due after the related redemption date but for such redemption; provided, however, that, if such redemption date is not an interest payment date with respect to such exchange note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such redemption date. "Treasury Rate" means, with respect to any redemption date, the rate per annum equal to the semiannual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. Certain Covenants Restrictions on Secured Debt. The Indenture provides that Toll Brothers Finance Corp. and Toll Brothers, Inc. will not, and will not cause or permit a Restricted Subsidiary to, create, incur, assume or guarantee any Secured Debt unless the exchange notes will be secured equally and ratably with (or prior to) such Secured Debt, with certain exceptions. This restriction does not prohibit the creation, incurrence, assumption or guarantee of Secured Debt which is secured by: (1) Security Interests in model homes, homes held for sale, homes that are under contract for sale, contracts for the sale of homes, land (improved or unimproved), manufacturing plants, warehouses or office buildings and fixtures and equipment located thereat or thereon; (2) Security Interests in property at the time of its acquisition by Toll Brothers Finance Corp., Toll Brothers, Inc. or a Restricted Subsidiary, including Capitalized Lease Obligations, which Security Interests secure obligations assumed by Toll Brothers Finance Corp., Toll Brothers, Inc. or a Restricted Subsidiary, or in the property of a corporation or other entity at the time it is merged into or consolidated with Toll Brothers Finance Corp., Toll Brothers, Inc. or a Restricted Subsidiary (other than Secured Debt created in contemplation of the acquisition of such property or the consummation of such 38 a merger or where the Security Interest attaches to or affects the property of Toll Brothers Finance Corp., Toll Brothers, Inc. or a Restricted Subsidiary prior to such transaction); (3) Security Interests arising from conditional sales agreements or title retention agreements with respect to property acquired by Toll Brothers Finance Corp., Toll Brothers, Inc. or a Restricted Subsidiary; (4) Security Interests incurred in connection with pollution control, industrial revenue, water, sewage or any similar item; and (5) Security Interests securing Indebtedness of a Restricted Subsidiary owing to Toll Brothers Finance Corp., Toll Brothers, Inc. or to another Restricted Subsidiary that is wholly-owned (directly or indirectly) by Toll Brothers, Inc. or Security Interests securing Toll Brothers Financing Corp.'s Indebtedness owing to a Guarantor. Additionally, such permitted Secured Debt includes any amendment, restatement, supplement, renewal, replacement, extension or refunding, in whole or in part, of Secured Debt permitted at the time of the original incurrence thereof. In addition, Toll Brothers Finance Corp. and the Guarantors may create, incur, assume or guarantee Secured Debt, without equally and ratably securing the exchange notes, if immediately thereafter the sum of (1) the aggregate principal amount of all Secured Debt outstanding (excluding Secured Debt permitted under clauses (1) through (5) above and any Secured Debt in relation to which the exchange notes have been equally and ratably secured) and (2) all Attributable Debt (as defined below) in respect of Sale and Lease-back Transactions (excluding Attributable Debt (as defined below) in respect of Sale and Lease-back Transactions (as defined below) as to which the provisions of clauses (1) through (3) described under "Restrictions on Sale and Lease-back Transactions" have been complied with) as of the date of determination would not exceed 20% of Consolidated Net Tangible Assets (as defined below). The provisions described above with respect to limitations on Secured Debt are not applicable to Non-Recourse Indebtedness (as defined below) by virtue of the definition of Secured Debt, and will not restrict or limit Toll Brothers Finance Corp.'s or the Guarantors' ability to create, incur, assume or guarantee any unsecured Indebtedness, or of any subsidiary which is not a Restricted Subsidiary to create, incur, assume or guarantee any secured or unsecured Indebtedness. Restrictions on Sale and Lease-back Transactions. The Indenture provides that Toll Brothers Finance Corp. and Toll Brothers, Inc. will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Lease-back Transaction, unless: (1) notice is promptly given to the Trustee of the Sale and Lease-back Transaction; (2) fair value is received by Toll Brothers Finance Corp., Toll Brothers, Inc. or the relevant Restricted Subsidiary for the property sold (as determined in good faith by Toll Brothers, Inc. communicated in writing to the Trustee); and (3) Toll Brothers Finance Corp., Toll Brothers, Inc. or a Restricted Subsidiary, within 365 days after the completion of the Sale and Lease- back Transaction, applies, or enters into a definitive agreement to apply within such 365-day period, an amount equal to the net proceeds of such Sale and Lease-back Transaction: o to the redemption, repayment or retirement of (a) senior notes of any series under the Indenture (including the cancellation by the Trustee of any senior notes of any series delivered by Toll Brothers Finance Corp. to the Trustee), (b) Indebtedness of ours that ranks equally with the senior notes, or (c) Indebtedness of any Guarantor that ranks equally with the Guarantee of such Guarantor, and/or o to the purchase by Toll Brothers Finance Corp., Toll Brothers, Inc. or any Restricted Subsidiary of property used in their respective trade or businesses. 39 This provision will not apply to a Sale and Lease-back Transaction that relates to a sale of a property that occurs within 180 days from the later of (x) the date of acquisition of the property by Toll Brothers Finance Corp., Toll Brothers, Inc. or a Restricted Subsidiary, (y) the date of the completion of construction of that property or (z) the date of commencement of full operations on that property. In addition, Toll Brothers Finance Corp. and the Guarantors may, without complying with the above restrictions, enter into a Sale and Lease-back Transaction if immediately thereafter the sum of (1) the aggregate principal amount of all Secured Debt outstanding (excluding Secured Debt permitted under clauses (1) through (5) described in "Restrictions on Secured Debt" above and any Secured Debt in relation to which the exchange notes have been equally and ratably secured) and (2) all Attributable Debt in respect of Sale and Lease-back Transactions (excluding Attributable Debt in respect of Sale and Lease-back Transactions as to which the provisions of clauses (1) through (3) above have been complied with) as of the date of determination would not exceed 20% of Consolidated Net Tangible Assets. Definitions "Attributable Debt" means, in respect of a Sale and Lease-back Transaction, the present value (discounted at the weighted average effective interest cost per annum of the outstanding senior notes of all series, compounded semiannually) of the obligation of the lessee for rental payments during the remaining term of the lease included in such transaction, including any period for which such lease has been extended or may, at the option of the lessor, be extended or, if earlier, until the earliest date on which the lessee may terminate such lease upon payment of a penalty (in which case the obligation of the lessee for rental payments shall include such penalty), after excluding all amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water and utility rates and similar charges. "Bank Credit Facilities" means the Revolving Bank Credit Facility and the Bank Term Loan. "Bank Term Loan" means the Term Loan agreement by and among First Huntingdon Finance Corp., Toll Brothers, Inc. and the lenders that are parties thereto, dated July 25, 2000, as amended, and any related documents (including, without limitation, any guarantees or security documents), as such agreements (and such related documents) may be amended, restated, supplemented, renewed, replaced by the existing lenders or by successors or otherwise modified from time to time, including any agreement(s) extending the maturity of or refinancing or refunding all or any portion of the indebtedness or increasing the amount to be borrowed under such agreements or any successor agreements(s), whether or not by or among the same parties. "Consolidated Net Tangible Assets" means the total amount of assets which would be included on a combined balance sheet of us and the Guarantors under accounting principles generally accepted in the United States (less applicable reserves and other properly deductible items) after deducting therefrom: (1) all short-term liabilities, except for liabilities payable by their terms more than one year from the date of determination (or renewable or extendible at the option of the obligor for a period ending more than one year after such date) and liabilities in respect of retiree benefits other than pensions for which the Restricted Subsidiaries are required to accrue pursuant to Statement of Financial Accounting Standards No. 106; (2) investments in subsidiaries that are not Restricted Subsidiaries; and (3) all goodwill, trade names, trademarks, patents, unamortized debt discount, unamortized expense incurred in the issuance of debt and other tangible assets. "Consolidated Net Worth" of any person means the consolidated stockholders' equity of the person determined in accordance with accounting principles generally accepted in the United States. "Indebtedness" means (1) any liability of any person (A) for borrowed money, (B) evidenced by a bond, note, debenture or similar instrument (including a purchase money obligation) given in connection with the acquisition of any businesses, properties or assets of any kind (other than a trade payable or a current liability arising in the ordinary course of business), (C) for the payment of money relating to a Capitalized Lease Obligation or (D) for all Redeemable Capital Stock valued at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; (2) any liability of others described in the 40 preceding clause (1) that such person has guaranteed or that is otherwise its legal liability; (3) all Indebtedness referred to in (but not excluded from) clauses (1) and (2) above of other persons and all dividends of other persons, the payment of which is secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Security Interest upon or in property (including, without limitation, accounts and contract rights) owned by such person, even though such person has not assumed or become liable for the payment of such Indebtedness; and (4) any amendment, supplement, modification, deferral, renewal, extension or refunding of any liability of the types referred to in clauses (1), (2) and (3) above. "Non-Recourse Indebtedness" means Indebtedness or other obligations secured by a lien on property to the extent that the liability for the Indebtedness or other obligations is limited to the security of the property without liability on the part of Toll Brothers, Inc., Toll Brothers Finance Corp. or any Restricted Subsidiary (other than the Restricted Subsidiary which holds title to the property) for any deficiency. "Redeemable Capital Stock" means any capital stock of Toll Brothers Finance Corp., Toll Brothers, Inc. or any Subsidiary of Toll Brothers, Inc. that, either by its terms, by the terms of any security into which it is convertible or exchangeable or otherwise, (1) is or upon the happening of an event or passage of time would be required to be redeemed on or prior to the final stated maturity of the notes or (2) is redeemable at the option of the holder thereof at any time prior to such final stated maturity or (3) is convertible into or exchangeable for debt securities at any time prior to such final stated maturity. "Restricted Subsidiary" means any Guarantor other than Toll Brothers, Inc. "Revolving Bank Credit Facility" means the Amended and Restated Credit Agreement by and among First Huntingdon Finance Corp., Toll Brothers Inc. and the lenders named therein dated May 18, 2001, as amended, and any related documents (including, without limitation, any guarantees or security documents), as such agreements (and such related documents) may be amended, restated, supplemented, renewed, replaced by the existing lenders or by successors or otherwise modified from time to time, including any agreement(s) extending the maturity of or refinancing or refunding all or any portion of the indebtedness or increasing the amount to be borrowed under such agreement(s) or any successor agreement(s), whether or not by or among the same parties. "Sale and Lease-back Transaction" means a sale or transfer made by Toll Brothers Finance Corp., Toll Brothers, Inc. or a Restricted Subsidiary (except a sale or transfer made to Toll Brothers Finance Corp., Toll Brothers, Inc. or another Restricted Subsidiary) of any property which is either (1) a manufacturing facility, office building or warehouse whose book value equals or exceeds 1% of Consolidated Net Tangible Assets as of the date of determination or (2) another property (not including a model home) which exceeds 5% of Consolidated Net Tangible Assets as of the date of determination, if such sale or transfer is made with the agreement, commitment or intention of leasing such property to Toll Brothers Finance Corp., Toll Brothers, Inc. or a Restricted Subsidiary for more than a three-year term. "Secured Debt" means any Indebtedness which is secured by (1) a Security Interest in any of the property of Toll Brothers Finance Corp., Toll Brothers, Inc. or any Restricted Subsidiary or (2) a Security Interest in shares of stock owned directly or indirectly by Toll Brothers Finance Corp., Toll Brothers, Inc. or a Restricted Subsidiary in a corporation or in equity interests owned by Toll Brothers Finance Corp., Toll Brothers, Inc. or a Restricted Subsidiary in a partnership or other entity not organized as a corporation or in Toll Brothers, Inc.'s rights or the rights of a Restricted Subsidiary in respect of Indebtedness of a corporation, partnership or other entity in which Toll Brothers Finance Corp., Toll Brothers, Inc. or a Restricted Subsidiary has an equity interest; provided that "Secured Debt" shall not include Non-Recourse Indebtedness, as such categories of assets are determined in accordance with accounting principles generally accepted in the United States. The securing in the foregoing manner of any such Indebtedness which immediately prior thereto was not Secured Debt shall be deemed to be the creation of Secured Debt at the time security is given. "Security Interests" means any mortgage, pledge, lien, encumbrance or other security interest which secures the payment or performance of an obligation. 41 "Significant Subsidiary" means any Subsidiary (1) whose revenues exceed 10% of Toll Brothers, Inc.'s total revenues, in each case for the most recent fiscal year, or (2) whose net worth exceeds 10% of Toll Brothers Inc.'s total stockholders' equity, in each case as of the end of the most recent fiscal year. "Subsidiary" means any person of which Toll Brothers, Inc., directly and/or indirectly through one or more Subsidiaries, owns, at the time of determination, more than 50% of the shares of Voting Stock. "Voting Stock" means any class or classes of capital stock pursuant to which the holders thereof have the general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of any person (irrespective of whether or not, at the time, stock of any other class or classes shall have, or might have, voting power by reason of the happening of any contingency). Consolidation, Merger and Sale of Assets Neither Toll Brothers Finance Corp. nor any of the Guarantors will consolidate or merge into or sell, assign, transfer or lease all or substantially all of its assets to another person unless: (1) the person is a corporation, in the case of Toll Brothers Finance Corp. or Toll Brothers, Inc., or any other legal entity in the case of any other Guarantor, organized under the laws of the United States of America or any state thereof, (2) the person assumes by supplemental indenture all the obligations of Toll Brothers Finance Corp. or such Guarantor, as the case may be, relating to the exchange notes or, the Guarantee, as the case may be, and the Indenture and shall also expressly assume by an amendment or supplement executed and delivered to the Trustee, in form satisfactory to the Trustee, all of Toll Brothers Finance Corp.'s and the Guarantors', as the case may be, covenants and other obligations under the Registration Rights Agreement; and (3) immediately after the transaction no Event of Default exists; provided that this clause (3) will not restrict or be applicable to a consolidation, merger, sale, assignment, transfer or lease of a Guarantor with, into or to Toll Brothers Finance Corp., Toll Brothers, Inc. or another Subsidiary that is, or concurrently with the completion of such consolidation, merger, sale, assignment, transfer, or lease becomes, a Guarantor. Upon any such consolidation, merger, sale, assignment or transfer, the successor corporation will be substituted for Toll Brothers Finance Corp. or such Guarantor (including any merger or consolidation described in the proviso at the end of the immediately preceding clause (3), as applicable, under the Indenture. The successor may then exercise every power and right of Toll Brothers Finance Corp. or such Guarantor, as applicable, under the Indenture, and Toll Brothers Finance Corp. or such Guarantor, as applicable, will be released from all of its respective liabilities and obligations in respect of the exchange notes or the Guarantee, as applicable, and the Indenture. If Toll Brothers Finance Corp. or any Guarantor leases all or substantially all of its assets, the lessee will be the successor to Toll Brothers Finance Corp. or such Guarantor, as applicable, and may exercise every power and right of Toll Brothers Finance Corp. or such Guarantor, as the case may be, under the Indenture, but Toll Brothers Finance Corp. or such Guarantor, as the case may be, will not be released from its respective obligations to pay the principal of and premium, if any, and interest, if any, on the exchange notes. Events of Default An Event of Default with respect to the exchange notes is defined in the Indenture as being, or having occurred in the event of: (1) default for 30 days in the payment of any installment of interest on the exchange notes; (2) default in the payment of any principal of the exchange notes; (3) default or breach by Toll Brothers Finance Corp., Toll Brothers, Inc., or any Guarantor which is a Significant Subsidiary in the performance of any of the agreements in the Indenture applicable to the exchange notes (other than a default or breach specifically dealt with elsewhere in the Indenture) which 42 shall not have been remedied within a period of 60 days after receipt of written notice by Toll Brothers Finance Corp. and Toll Brothers, Inc. from the Trustee or by Toll Brothers Finance Corp., Toll Brothers, Inc. and the Trustee from the holders of not less than 25% in principal amount of the exchange notes issued under the Indenture then outstanding; (4) any default under an instrument evidencing or securing any of Toll Brothers Finance Corp.'s Indebtedness or the Indebtedness of any Guarantor (other than Non-Recourse Indebtedness) aggregating $10,000,000 or more in aggregate principal amount, resulting in the acceleration of such Indebtedness, or due to the failure to pay such Indebtedness at maturity; (5) the occurrence of an acceleration of, or a significant modification of the terms (including without limitation the payment of more than an insignificant amount of fees to the holders thereof) of any of Toll Corp.'s 7 3/4% Senior Subordinated Notes due 2007, 8 1/8% Senior Subordinated Notes due 2009, 8% Senior Subordinated Notes due 2009, 8 1/ 4% Senior Subordinated Notes due 2011 or 8.25% Senior Subordinated Notes due 2011 (each of these series of subordinated notes being referred to below as an "Outstanding Series"), provided that on the date of the occurrence, the outstanding principal amount of at least one Outstanding Series to which the occurrence relates exceeds $5,000,000; (6) any Guarantee in respect of the exchange notes by Toll Brothers, Inc. or a Guarantor that is a Significant Subsidiary shall for any reason cease to be, or be asserted in writing by Toll Brothers, Inc. or such Guarantor or Toll Brothers Finance Corp. not to be, in full force and effect and enforceable in accordance with its terms (other than by reason of the termination of the Indenture or the release or discharge of any such Guarantee in accordance with the terms of the Indenture); provided, however, that if Toll Brothers, Inc. or Toll Brothers Finance Corp. or such Guarantor asserts in writing that any such Guarantee is not in full force and effect and enforceable in accordance with its terms, such assertion shall not constitute an Event of Default for purposes of this paragraph if (A) such written assertion is accompanied by an opinion of counsel to the effect that, as a matter of law, the defect or defects rendering such Guarantee unenforceable can be remedied within 10 days of the date of such assertion, (B) Toll Brothers, Inc. or Toll Brothers Finance Corp. or such Guarantor delivers an officer's certificate to the effect that Toll Brothers, Inc., Toll Brothers Finance Corp. or such Guarantor represents that such defect or defects shall be so remedied within such 10-day period, and (C) such defect or defects are in fact so remedied within such 10-day period; and (7) certain events of bankruptcy, insolvency or reorganization involving us, Toll Brothers, Inc. or any Significant Subsidiary. We may cure any Event of Default that relates exclusively to a Guarantor other than Toll Brothers, Inc. by releasing such Guarantor from its Guarantee to the extent permitted by the provisions of the Indenture. The Indenture provides that if an Event of Default (other than an Event of Default described in clause (7) above) shall have occurred and be continuing, either the Trustee or the holders of at least 25% in aggregate principal amount of senior notes issued under the Indenture then outstanding may declare the principal amount of all the senior notes and interest, if any, accrued thereon to be due and payable immediately, but upon certain conditions such declaration may be annulled and past defaults (except, unless cured, a default in payment of principal of or interest on senior notes of that series) may be waived by the holders of a majority in principal amount of the senior notes of that series then outstanding. If an Event of Default described in clause (7) above occurs and is continuing, then the principal amount of all the senior notes shall become and be immediately due and payable without any declaration or other act on the part of the Trustee or any holder. The Indenture contains a provision entitling the Trustee, subject to the duty of the Trustee during default to act with the required standard of care, to be indemnified by the holders of the exchange notes before proceeding to exercise any right or power under the Indenture at the request of the holders of the exchange notes. The Indenture also provides that the holders of a majority in principal amount of the outstanding exchange notes issued under the Indenture may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee. 43 No holder of senior notes will have any right to institute any proceeding with respect to the Indenture or for any remedy thereunder, unless: (1) the holder shall have previously given the Trustee written notice of an Event of Default with respect to the senior notes, (2) the holders of at least 25% in aggregate principal amount of the senior notes issued under the Indenture shall have made written request, and offered reasonable indemnity, to the Trustee to institute such proceeding as trustee, (3) the Trustee shall have failed to institute any such proceeding for 60 days after its receipt of such notice and (4) no direction inconsistent with such written request has been given to the Trustee during the 60-day period by the holders of a majority in principal amount of the outstanding senior notes under the Indenture. However, any right of a holder of senior notes to receive payment of the principal of and any interest on the senior notes on or after the dates expressed in the senior notes and to institute suit for the enforcement of any such payment on or after such dates shall not be impaired or affected without the consent of such holder. The Indenture contains a covenant that we will file annually with the Trustee a certificate as to the absence of any default or specifying any default that exists. Modification and Waiver We and the Trustee, with the consent of the holders of at least a majority of the principal amount of the outstanding senior notes issued under the Indenture, may execute supplemental indentures adding any provisions to or changing or eliminating any of the provisions of the Indenture or modifying the rights of the holders of the senior notes, except that no such supplemental indenture may, without the consent of the holder of each outstanding security affected by the supplemental indenture, among other things: (1) change the final maturity of the senior notes, or reduce the rate or extend the time of payment of interest on the senior notes, or reduce the principal amount of the senior notes, or impair the right to institute suit for payment of the senior notes; (2) reduce the percentage of senior notes, the consent of the holders of which is required for any such supplemental indenture, for any waiver of compliance with certain provisions of the Indenture or certain defaults under the Indenture and their consequences provided in the Indenture; (3) modify any of the provisions regarding the modification of the Indenture, waivers of past defaults and waivers of certain covenants, except to increase any percentage or to provide that certain other provisions of the Indenture cannot be modified or waived without the consent of the holder of each outstanding security affected thereby; (4) alter the provisions (including related definitions) with respect to redemption of senior notes; (5) modify the ranking or priority of the senior notes in a manner adverse to the holders of senior notes; or (6) make any senior note payable at a place or in money other than that stated in the senior note. Neither our Board of Directors nor the Board of Directors of any Guarantor has the power to waive any of the covenants of the Indenture including those relating to consolidation, merger or sale of assets. We and the Trustee may modify or amend provisions of the Indenture without the consent of any holder for any of the following purposes: (1) to evidence the succession of another person to us or any Guarantor under the Indenture and the senior notes; (2) to add to our covenants or the covenants of any Guarantor for the benefit of the holders of the senior notes or to surrender any right or power conferred upon us or such Guarantor by the Indenture; (3) to add Events of Default for the benefit of the holders of the senior notes; (4) to change or eliminate any provisions of the Indenture, provided that any such change or elimination shall become effective only when there are no outstanding senior notes; (5) to secure any senior notes under the Indenture; 44 (6) to establish the form or terms of the senior notes of any series; (7) to add Guarantors; (8) to provide for the acceptance of appointment by a successor Trustee or facilitate the administration of the trusts under the Indenture by more than one Trustee; (9) to close the Indenture to authentication and delivery of additional series of senior notes; (10) to supplement any of the provisions of the Indenture to the extent necessary to permit or facilitate defeasance and discharge of the senior notes, provided that such action shall not adversely affect the interests of the holders of the senior notes; (11) to remove a Guarantor in respect of any senior notes which, in accordance with the terms of the Indenture, ceases to be liable in respect of its Guarantee; (12) to cure any ambiguity, omission, defect or inconsistency in the Indenture, provided that such action does not adversely affect the interests of holders of the senior notes; or (13) to provide that specific provisions of the Indenture will not apply to a series of securities not previously issued under the indenture; (14) to provide for uncertificated senior notes in addition to or in place of certificated senior notes; and (15) to make any other change that does not adversely affect the interests of holders of the senior notes. The holders of at least a majority in principal amount of the outstanding senior notes may, on behalf of the holders of all senior notes, waive any past default under the Indenture. However, they may not waive a default (1) in the payment of the principal of (or premium, if any) or any interest on any debt security or (2) in respect of a covenant or provision which under the Indenture cannot be modified or amended without the consent of the holder of each outstanding senior note. Defeasance Provisions Defeasance and Discharge. The Indenture provides that we will be discharged from any and all obligations in respect of the senior notes of that series (except for certain obligations to register the transfer or exchange of senior notes, replace stolen, lost, destroyed or mutilated senior notes, maintain offices or agencies and hold moneys for payment in trust) upon the deposit with the Trustee, in trust, of money, government obligations or a combination thereof which through the payment of interest and principal thereof in accordance with their terms will provide money in an amount sufficient to pay the principal of (and premium, if any) and interest on, and any mandatory sinking fund payments in respect of, the senior notes of that series on the stated maturity date of the payments in accordance with the terms of the Indenture and the senior notes. This type of discharge may only occur if there has been a change in applicable federal law or we have received from, or there has been published by, the United States Internal Revenue Service a ruling to the effect that the holders of the senior notes of that series will not recognize income, gain or loss for federal income tax purposes as a result of that discharge and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if the discharge had not occurred. In addition, this type of discharge may only occur so long as no Event of Default or event which, with notice or lapse of time, would become an Event of Default with respect to the senior notes of that series has occurred and is continuing on the date cash and/or government securities are deposited in trust and other conditions specified in the Indenture are satisfied. The term "government obligations" means securities of the government which issued the currency in which the senior notes of the series are denominated or in which interest is payable or of government agencies backed by the full faith and credit of that government. Defeasance of Certain Covenants. The Indenture also provides that we may omit to comply with the covenants described above under "Certain Covenants" and "Consolidation, Merger and Sale of Assets" with respect to the senior notes of that series if we comply with the following conditions. In order to exercise this option, we will be required to deposit with the Trustee money, government obligations or a combination 45 thereof which through the payment of interest and principal thereof in accordance with their terms will provide money in an amount sufficient to pay the principal of (and premium, if any) and interest on, and any mandatory sinking fund payments in respect of, the senior notes of that series on the stated maturity date of the payments in accordance with the terms of the Indenture and the senior notes. We will also be required to deliver to the Trustee an opinion of counsel to the effect that the deposit and related covenant defeasance will not cause the holders of the senior notes of that series to recognize income, gain or loss for federal income tax purposes and that those holders will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if the deposit and covenant defeasance had not occurred, and to satisfy other conditions specified in the Indenture. Covenant Defeasance and Events of Default. In the event we exercise our option to effect covenant defeasance with respect to the senior notes of any series and those senior notes are declared due and payable because of the occurrence of any Event of Default, the amount of money and government obligations on deposit with the Trustee will be sufficient to pay amounts due on the senior notes of that series at the time of their stated maturity dates but may not be sufficient to pay amounts due on the senior notes at the time of the acceleration resulting from such Event of Default. However, we will remain liable for such payments. Regarding the Trustee Bank One Trust Company, National Association will be the trustee under the Indenture pursuant to which the exchange notes are to be issued. Bank One Trust Company, National Association also is trustee under the indentures pursuant to which Toll Corp.'s 7 3/4% Senior Subordinated Notes due 2007, 8 1/ 8% Senior Subordinated Notes due 2009, 8% Senior Subordinated Notes due 2009, 8 1/4% Senior Subordinated Notes due 2011 and 8.25% Senior Subordinated Notes due 2011 were issued. Further, Banc One Capital Markets, Inc., an affiliate of the Trustee, is a lender and Administrative Agent under our Bank Credit Facilities and was an initial purchaser of the old notes. Global Notes and Book-Entry System The Global Securities The exchange notes will be issued in the form of one or more registered notes in global form, without interest coupons. Such global notes will be deposited on the issue date with DTC and registered in the name of Cede & Co., as nominee of DTC, or will remain in the custody of the Trustee under the Indenture pursuant to the FAST Balance Certificate Agreement between DTC and the Trustee. Beneficial interests in the global notes may not be exchanged for certificated notes except in the circumstances described below. All interests in global notes may be subject to the procedures and requirements of DTC. Exchanges of beneficial interests in one global security for interests in another global security will be subject to the applicable rules and procedures of DTC and its direct and indirect participants. Any beneficial interest in one of the global notes that is transferred to a person who takes delivery in the form of an interest in another global security will, upon transfer, cease to be an interest in that global security and become an interest in the global security to which the beneficial interest is transferred and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in the global security to which the beneficial interest is transferred for as long as it remains an interest in that global security. Certain Book-Entry Procedures for the Global Notes The descriptions of the operations and procedures of DTC set forth below are provided solely as a matter of convenience. These operations and procedures are solely within the control of the respective settlement systems and are subject to change by them from time to time. We do not take any responsibility for these operations or procedures, and investors are urged to contact the relevant system or its participants directly to discuss these matters. DTC has advised us that it is a limited purpose trust company organized under the New York Banking Law, a "banking organization" within the meaning of the New York Banking Law, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code 46 and a "clearing agency" registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds securities for its participants and facilitates the clearance and settlement of securities transactions between participants through electronic book-entry changes in accounts of its participants, which eliminates the need for physical movement of certificates. Participants include securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Indirect access to the DTC system is available to others such as banks, brokers, dealers and trust companies that clear through or maintain a direct or indirect custodial relationship with a participant ("indirect participants"). The rules applicable to DTC and its participants are on file with the Commission. Upon the issuance of the global note, DTC or its custodian will credit, on its internal system, the respective principal amount of the individual beneficial interests represented by the global note to the accounts of the persons who have accounts with DTC. Such accounts initially will be designated by or on behalf of the initial purchasers. Ownership of beneficial interests in the global note will be limited to persons who have accounts with DTC ("participants") or persons who hold interests through participants. Ownership of beneficial interests in the global note will be shown on, and the transfer of that ownership will be effected only through, records maintained by DTC or its nominee (with respect to interests of participants) and the records of participants and indirect participants (with respect to interests of persons other than participants). So long as DTC or its nominee is the registered owner or holder of the global note, DTC or such nominee, as the case may be, will be considered the sole record owner or holder of the exchange notes represented by the global note for all purposes under the Indenture and the exchange notes. Except as set forth herein, owners of beneficial interests in the global note will not be entitled to have exchange notes represented by the global note registered in their names, will not receive or be entitled to receive physical delivery of exchange notes in definitive certificated form, and will not be considered holders of the exchange notes for any purposes under the Indenture. Accordingly, each person owning a beneficial interest in the global note must rely on the procedures of DTC and, if such person is not a participant, on the procedures of the participant through which such person directly or indirectly owns its interest, to exercise any rights of a holder under the Indenture. We understand that under existing industry practices, if we request any action of holders or any owner of a beneficial interest in the global note desires to give any notice or take any action that a holder is entitled to give or take under the indenture, DTC would authorize the participants holding the relevant beneficial interests to give such notice to take such action, and such participants would authorize beneficial owners owning through such participants to give such notice or take such action or would otherwise act upon the instructions of beneficial owners owning through them. Payments of the principal of, premium, if any, and interest on the global note will be made to DTC or its nominee, as the case may be, as the registered owner. Neither we, the trustee nor any paying agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in the global note or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. We expect that DTC or its nominee, upon receipt of any payment of principal of, premium, if any, or interest in respect of the global note will credit participants' accounts with payments in amounts proportionate to their respective beneficial ownership interests in the principal amount of the global note, as shown on the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial interests in the global note held through such participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers registered in the names of nominees for such customers. The participants will be responsible for such payments. The Indenture provides that, if the Depository notifies us that it is unwilling or unable to continue as depository for the global notes or if at any time the Depository ceases to be a clearing agency registered under the Securities Exchange Act of 1934 and we do not appoint a successor depository within 90 days, or if there shall have occurred and be continuing an Event of Default or an event which, with the giving of notice or lapse of time, or both, would constitute an Event of Default with respect to the exchange notes, then we will issue certificated notes in exchange for the global note. In addition, we may at any time and in our sole discretion determine not to have the exchange notes represented by a global note and, in such event, will issue certificated notes in exchange for the global note. In any such instance, an owner of a beneficial interest 47 in a global note will be entitled to physical delivery of certificated notes equal in principal amount to its beneficial interest and to have the certificated notes registered in its name. We expect that instructions for registering the certificated notes would be based upon directions received from the Depository with respect to ownership of the beneficial interests in the global note. Although DTC has agreed to the procedures described above in order to facilitate transfers of interests in the global note among participants of DTC, it is under no obligation to perform such procedures and such procedures may be discontinued at any time. Neither we nor the Trustee will have any responsibility for the performance by DTC or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations. According to DTC, the foregoing information with respect to DTC has been provided by it for informational purposes only and is not intended to serve as a representation, warranty, or contract modification of any kind. The information contained herein concerning DTC and its book-entry system has been obtained from sources that we believe are reliable, though DTC has declined to pass upon the accuracy of the statements contained herein. Same-Day Funds We will make all payments of principal premium, if any, and interest on the global notes in immediately available funds to DTC. UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS The following is a summary of what we believe are the material federal income tax consequences to a holder of exchange notes (a "United States Holder") who is (1) a citizen or resident of the United States, (2) a corporation, partnership or other entity treated as a corporation or a partnership for United States federal income tax purposes created or organized in or under the laws of the United States, any state thereof or the district of Columbia (unless, in the case of a partnership, Treasury regulations provide otherwise), (3) an estate whose income is subject to United States federal income tax regardless of its source, or (4) a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust. Notwithstanding the preceding sentence, to the extent provided in Treasury regulations, certain trusts in existence on August 20, 1996, and treated as United States persons prior to such date, that elect to continue to be treated as United States persons will also be United States Holders. The following summary deals only with exchange notes held as capital assets by purchasers at the issue price who are United States Holders and not with special classes of holders, such as dealers in securities or currencies, financial institutions, life insurance companies, persons holding senior notes as a hedge against or which are hedged again currency risks, and persons whose functional currency is not the U.S. dollar. A person considering an investment in the exchange notes should consult his or her own tax advisor concerning these matters and as to the tax treatment under foreign, state and local tax laws and regulations. This summary is based upon the Internal Revenue Code of 1986, as amended (the "Code"), Treasury Regulations, Internal Revenue Service ("IRS") rulings and pronouncements and judicial decisions now in effect, all of which are subject to change at any time. Changes in this area of law may be applied retroactively in a manner that could cause the tax consequences to vary substantially from the consequences described below, possibly adversely affecting a United States Holder. The authorities on which this summary is based are subject to various interpretations, and it is therefore possible that the federal income tax treatment of the purchase, ownership and disposition of the exchange notes may differ from the treatment described below. Exchange of Notes The exchange offer will occur by operation of the terms of the old notes and will not result in material changes as specifically referenced in the applicable treasury regulations and does not violate the option rules 48 as set forth in the applicable treasury regulations. Consequently, no federal income tax consequences to United States Holders exchanging old notes for exchange notes under the exchange offer will occur. Each exchanging holder will have the same adjusted tax basis and holding period in the exchange notes as it had in the old notes immediately before the exchange. Payments of Interest As a general rule, interest paid or accrued on the exchange notes will be treated as ordinary income to United States Holders. A United States Holder using the accrual method of accounting for federal income tax purposes is required to include interest paid or accrued on the exchange notes in ordinary income as interest accrues, while a United States Holder using the cash receipts and disbursements method of accounting for federal income tax purposes must include interest in ordinary income when payments are received (or made available for receipt to) by the holder. We intend to take the position that the exchange notes do not, as of the issue date, represent contingent payment debt because the likelihood of paying an increased rate of interest as a result of a Registration Default is remote. A United States Holder may not take a contrary position unless such contrary position is disclosed in the proper manner to the IRS. United States Holders should consult their tax advisors regarding the tax consequences of the exchange notes being treated as contingent payment debt. If, contrary to current expectations, we pay additional interest, or if the IRS successfully asserts that these contingent payments were not remote as of the issue date, the amount and the timing of the interest income that a United States Holder is required to include in taxable income, as well as any gain on a sale of the exchange notes, might have to be redetermined, or recharacterized as ordinary income. Sale, Exchange or Retirement of Exchange Notes A United States Holder's tax basis in an exchange note will generally be its cost. Upon the sale, exchange, redemption, or retirement of an exchange note, a United States Holder will generally recognize gain or loss on the sale, exchange, redemption or retirement equal to the difference between the amount realized (not including any amounts attributable to accrued and unpaid interest, which is treated as interest as described above) and the holder's tax basis in the exchange note. Long-term capital gain of a non-corporate United States Holder is generally subject to a maximum tax rate of 20% in respect of exchange notes held for more than one year, and a maximum tax rate of 18% in respect of exchange notes held for more than five years. Withholding Taxes and Reporting Requirements Interest payments and payments of principal and any premium with respect to an exchange note will be reported to the extent required by the Code to the United States Holders and the IRS. These amounts will ordinarily not be subject to withholding of United States federal income tax. However, a backup withholding tax will apply to these payments if a United States Holder fails to supply us or our agent in the manner required by applicable law with the holder's taxpayer identification number or if a United States Holder has been notified by the IRS that payments to such holder are subject to backup withholding. The backup withholding tax rate is 30% for payments made during the year 2003, 29% for payments made during the years 2004 and 2005, and 28% for payments made during the years 2006 through 2010. For payments made after 2010, the backup withholding tax rate will be increased to 31%. PLAN OF DISTRIBUTION Each broker-dealer that receives exchange notes for its own account under the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of those notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer for resales of exchange notes received in exchange for old notes that had been acquired as a result of market-making or other trading activities. We have agreed that, for a period of 270 days after the expiration date of the exchange offer, we will make this prospectus, as it may be amended or supplemented, available to any 49 broker-dealer for use in connection with any such resale. Any broker-dealers required to use this prospectus and any amendments or supplements to this prospectus for resales of the exchange notes must notify us of this fact by checking the box on the letter of transmittal requesting additional copies of these documents or by writing or telephoning us. See "Where You Can Find More Information." Notwithstanding the foregoing, we are entitled under the registration rights agreement to suspend the use of this prospectus by broker-dealers under specific circumstances. For example, we may suspend the use of this prospectus if: o the Commission or any state securities authority requests an amendment or supplement to this prospectus or the related registration statement or additional information; o the Commission or any state securities authority issues any stop order suspending the effectiveness of the registration statement or initiates proceedings for that purpose; o we receive notification of the suspension of the qualification of the exchange notes for sale in any jurisdiction or the initiation or threatening of any proceedings for that purpose; o the suspension is required by law; o the suspension is taken for valid business reasons, including the acquisition or divesture of assets or a material corporate transaction; or o an event occurs which makes any statement in this prospectus untrue in any material respect or which constitutes an omission to state a material fact in this prospectus. If we suspend the use of this prospectus, the 270-day period referred to above will be extended by a number of days equal to the period of the suspension. We will not receive any proceeds from any sale of exchange notes by broker- dealers. Exchange notes received by broker-dealers for their own account under the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on those notes or a combination of those methods, at market prices prevailing at the time of resale, at prices related to prevailing market prices or at negotiated prices. Any resales may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from the selling broker-dealer or the purchasers of the exchange notes. Any broker-dealer that resells exchange notes received by it for its own account under the exchange offer and any broker or dealer that participates in a distribution of the exchange notes may be deemed to be an "underwriter" within the meaning of the Securities Act and any profit on any resale of exchange notes and any commissions or concessions received by these persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. We have agreed to pay all expenses incidental to the exchange offer other than commissions and concessions of any broker or dealer and will indemnify holders of the senior notes, including any broker-dealers, against certain liabilities, including liabilities under the Securities Act. LEGAL MATTERS Wolf, Block, Schorr and Solis-Cohen LLP, Philadelphia, Pennsylvania has rendered an opinion with respect to the validity and enforceability of the exchange notes being issued by Toll Brothers Finance Corp. and the Guarantee being issued by Toll Brothers, Inc. Kenneth J. Gary, Esquire, Senior Vice President and General Counsel of Toll Brothers, Inc., has rendered an opinion with respect to the validity and enforceability of the Guarantees being issued by the Guarantors other than Toll Brothers, Inc. Mr. Gary owns or has the right to acquire a number of shares of common stock of Toll Brothers, Inc. which is well below 1% of the outstanding common stock of Toll Brothers, Inc. 50 EXPERTS Ernst & Young LLP, independent auditors, have audited our consolidated financial statements and schedule included in our Annual Report on Form 10-K for the year ended October 31, 2002, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements and schedule are incorporated by reference in reliance on Ernst & Young LLP's report, given on their authority as experts in accounting and auditing. 51 =============================================================================== $300,000,000 Toll Brothers Finance Corp. 6.875% Senior Notes due 2012 [graphic omitted] ------------------------------- PROSPECTUS __________ __, 2003 ------------------------------- Each broker-dealer that receives exchange notes for its own account in the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of those exchange notes. The letter of transmittal states that, by so acknowledging and delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of exchange notes received in exchange for outstanding notes where the outstanding notes were acquired by the broker-dealer as a result of market-making activities or other trading activities. We have agreed that, for a period of 270 days after the consummation of this exchange offer, we will make this prospectus available to any broker-dealer for use in connection with the resale of exchange notes. See "Plan of Distribution." =============================================================================== PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 20. Indemnification of Directors and Officers. For information regarding provisions under which a director or officer of Toll Brothers, Inc. or Toll Brothers Finance Corp. may be insured or indemnified in any manner against any liability which he may incur in his capacity as such, reference is made to Section 145 of the Delaware General Corporation Law, which provides in its entirety as follows: "(a) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person's conduct was unlawful. (b) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. (c) To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. (d) Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders. (e) Expenses (including attorneys' fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation II-1 in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys' fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate. (f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person's official capacity and as to action in another capacity while holding such office. (g) A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person's status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section. (h) For purposes of this section, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued. (i) For purposes of this section, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this section. (j) The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. (k) The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation's obligation to advance expenses (including attorneys' fees)." See also Article Six of Toll Brothers, Inc.'s Certificate of Incorporation, as amended, which obligates, and Article VII of Toll Brothers, Inc.'s By-Laws, as amended, which grants, Toll Brothers, Inc. the power to indemnify its directors, officers, employees and agents. Section 7-4 of Article VII of Toll Brothers, Inc.'s Bylaws, as amended, further permits Toll Brothers, Inc. to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of Toll Brothers, Inc., or who is or was serving at the request of Toll Brothers, Inc. as a director, officer employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not Toll Brothers, Inc. would have the power to indemnify him against such liability under law. Toll Brothers, Inc. has purchased directors' and officers' liability insurance. II-2 See also Article VIII of Toll Brothers Finance Corp.'s By-Laws which obligates Toll Brothers Finance Corp. to indemnify its directors, officers, employees and agents. Section 8-7 of Article VIII of Toll Brothers Finance Corp's Bylaws further permits Toll Brothers Finance Corp. to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of Toll Brothers Finance Corp., or who is or was serving at the request of Toll Brothers Finance Corp. as a director, officer employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not Toll Brothers Finance Corp. would have the power to indemnify him against such liability under law. Toll Brothers Finance Corp. has purchased directors' and officers' liability insurance. See Item 22 of this Part II for further information concerning indemnification of directors, officers and controlling persons of Toll Brothers, Inc. and Toll Brothers Finance Corp. II-3 Item 21. Exhibits++ 3.1* Form of Articles of Incorporation for Guarantors incorporated in the State of Arizona. 3.2* Form of Articles of Organization for Guarantors organized in the State of Arizona. 3.3* Form of Articles of Incorporation for Guarantors incorporated in the State of California. 3.4* Form of Articles of Organization for Guarantors organized in the State of California. 3.5* Form of Certificate of Limited Partnership for Guarantors organized in the State of California. 3.6* Form of Articles of Incorporation for Guarantors incorporated in the State of Colorado. 3.7* Form of Certificate of Limited Partnership for Guarantors organized in the State of Colorado. 3.8* Form of Certificate of Limited Partnership for Guarantors organized in the State of Connecticut. 3.9* Form of the Certificate of Incorporation for Guarantors incorporated in the State of Delaware. 3.10* Form of Certificate of Formation for Guarantors organized in the State of Delaware. 3.11* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Delaware. 3.12* Form of Articles of Incorporation for the Guarantors incorporated in the State of Florida. 3.13* Form of Articles of Organization for the Guarantors organized in the State of Florida. 3.14* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Florida. 3.15* Form of Articles of Incorporation for the Guarantors incorporated in the State of Illinois. 3.16* Form of Articles of Organization for the Guarantors organized in the State of Illinois. 3.17* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Illinois. 3.18* Form of Articles of Organization for the Guarantors organized in the State of Maryland. 3.19* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Maryland. 3.20* Form of Certificate of Organization for the Guarantors organized in the Commonwealth of Massachusetts. 3.21* Form of Certificate of Limited Partnership for the Guarantors organized in the Commonwealth of Massachusetts. 3.22* Form of Articles of Incorporation for the Guarantors incorporated in the State of Michigan. 3.23* Form of Articles of Organization for the Guarantors organized in the State of Michigan. 3.24* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Michigan. 3.25* Form of Articles of Incorporation for the Guarantors incorporated in the State of Nevada. 3.26* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Nevada. 3.27* Form of Articles of Incorporation for the Guarantors incorporated in the State of New Hampshire. 3.28* Form of Certificate of Limited Partnership for the Guarantors organized in the State of New Hampshire. 3.29* Form of Certificate of Formation for the Guarantors organized in the State of New Jersey. 3.30* Form of Certificate of Limited Partnership for the Guarantors organized in the State of New Jersey. 3.31* Form of Certificate of Incorporation for the Guarantors incorporated in the State of New York. 3.32* Form of Certificate of Limited Partnership for the Guarantors organized in the State of New York. 3.33* Form of Articles of Incorporation for the Guarantors incorporated in the State of North Carolina. 3.34* Form of Articles of Organization for the Guarantors organized in the State of North Carolina. 3.35* Form of Certificate of Limited Partnership for the Guarantors organized in the State of North Carolina. 3.36* Form of Articles of Incorporation for the Guarantors incorporated in the State of Ohio. 3.37* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Ohio. 3.38* Form of Certificate of Articles of Incorporation for the Guarantors incorporated in the Commonwealth of Pennsylvania. 3.39* Form of Certificate of Organization for the Guarantors organized in the Commonwealth of Pennsylvania. 3.40* Form of Certificate of Limited Partnership for the Guarantors organized in the Commonwealth of Pennsylvania. 3.41* Form of Articles of Incorporation for the Guarantors incorporated in the State of Rhode Island. 3.42* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Rhode Island. 3.43* Form of Articles of Incorporation for the Guarantors incorporated in the State of South Carolina. 3.44* Form of Certificate of Limited Partnership for the Guarantors organized in the State of South Carolina. 3.45* Form of Articles of Incorporation for the Guarantors incorporated in the State of Tennessee. 3.46* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Tennessee. 3.47* Form of Articles of Incorporation for the Guarantors incorporated in the State of Texas. 3.48* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Texas. 3.49* Form of Articles of Organization for the Guarantors organized in the Commonwealth of Virginia. 3.50* Form of Certificate of Limited Partnership for the Guarantors organized in the Commonwealth of Virginia. 3.51* Form of Bylaws for the Guarantors. 3.52* Form of Limited Liability Company Operating Agreement for the Guarantors. 3.53* Form of Limited Partnership Agreement for the Guarantors. 3.54* Form of Limited Liability Company Agreement for C.B.A.Z. Holding Company LLC, First Brandywine LLC I and First Brandywine LLC II. 3.55* Form of Certificate of Incorporation for Eastern States Engineering, Inc. and Fairway Valley, Inc. 3.56* Form of Bylaws for Eastern States Engineering, Inc. and Fairway Valley, Inc. 3.57* Form of Bylaws for TB Proprietary, L.P., Inc., Toll NJX-I Corp. and Toll NJX-II Corp. 3.58* Form of Certificate of Incorporation for Toll Bros. of Tennessee, Inc., Toll Management AZ Corp., Toll Management VA Corp., Toll NJX-I Corp., Toll NJX-II Corp. and Toll VA Member Two, Inc. 3.59* Form of Bylaws for Toll Bros. of Tennessee, Inc., Toll Management AZ Corp., Toll Management VA Corp. and Toll VA Member Two, Inc. 3.60* Form of Articles of Organization for Big Branch Overbrook LLC and Sapling Ridge, LLC. 3.61* Form of Articles of Incorporation for HQZ Acquisitions, Inc. and The Silverman Building Companies, Inc. 3.62* Form of Articles of Incorporation for Silverman Development Company, Inc., SH Homes Corporation and SI Investment Corporation. 3.63* Form of Articles of Incorporation for Polekoff Farm, Inc., Toll Bros., Inc., Toll Real Estate, Inc., Toll Land Corp. No. 6 and Windsor Development Corp. 3.64* Form of Bylaws for Polekoff Farm, Inc., Toll Bros., Inc., Toll Land Corp. No. 6 and Windsor Development Corp. 3.65* Form of Certificate of Incorporation for Toll Realty Holdings Corp. I, Toll Realty Holdings Corp. II and Toll Realty Holdings Corp. III. 3.66* Form of Bylaws for Toll Realty Holdings Corp. I, Toll Realty Holdings Corp. II and Toll Realty Holdings Corp. III. 3.67* Form of Operating Agreement for Brier Creek Country Club I LLC and Brier Creek Country Club II LLC. 3.68* Form of Operating Agreement for Belmont Country Club I LLC, Belmont Country Club II LLC, Dominion Valley Country Club I, LLC and Dominion Valley Country Club II, LLC. 3.69* Form of Operating Agreement for Golf I Country Club Estates at Moorpark LLC and Golf II Country Club Estates at Moorpark LLC. 3.70 Restated Certificate of Incorporation for Toll Brothers, Inc. dated July 1, 1996, is hereby incorporated by reference to Exhibit 3.1 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended January 31, 2002. 3.71 Amendment to the Restated Certificate of Incorporation for Toll Brothers, Inc. dated March 7, 1989, is hereby incorporated by reference to Exhibit 3.2 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended January 31, 2002. 3.72 Amendment to the Restated Certificate of Incorporation for Toll Brothers, Inc. dated June 12, 1997, is hereby incorporated by reference to Exhibit 3.4 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended January 31, 2002. 3.73 Amendment to the Restated Certificate of Incorporation for Toll Brothers, Inc. dated January 8, 1998, is hereby incorporated by reference to Exhibit 3.5 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended January 31, 2002. 3.74 Amendment to the Restated Certificate of Incorporation for Toll Brothers, Inc. dated March 7, 2002, is hereby incorporated by reference to Exhibit 3.6 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended January 31, 2002. 3.75 Amended and Restated Bylaws for Toll Brothers, Inc., are hereby incorporated by reference to Exhibit 3 of Toll Brothers, Inc.'s Current Report on Form 8-K dated March 38, 2003. 3.76* Certificate of Limited Partnership for Edmunds-Toll Limited Partnership. 3.77* Articles of Incorporation for Toll YL, Inc. 3.78* Amended and Restated Certificate of Incorporation for First Brandywine Finance Corp. 3.79* Agreement of Limited Partnership for First Brandywine Partners, L.P. 3.80* Limited Liability Company Agreement for Toll DE X, L.L.C. 3.81* Bylaws for Toll Philmont Corporation. 3.82* Articles of Incorporation for Frenchman's Reserve Country Club, Inc. 3.83* Bylaws for Frenchman's Club Reserve Country Club, Inc. 3.84* Amended and Restated Articles of Incorporation for Mizner Country Club, Inc. 3.85* Bylaws for Mizner Country Club, Inc. 3.86* Articles of Organization for Naples Lakes Country Club, L.L.C. 3.87* Operating Agreement for Naples Lakes Country Club, L.L.C. 3.88* Articles of Organization for Naples TBI Realty, LLC. 3.89* Articles of Incorporation for Toll FL GP Corp. 3.90* Articles of Amendment for Feys Property LLC. 3.91* Bylaws for Toll Peppertree, Inc. 3.92* Limited Partnership Certificate for Rose Hollow Crossing Associates. 3.93* Limited Partnership Agreement for Rose Hollow Crossing Associates. 3.94* Bylaws for Toll Brothers Real Estate, Inc. 3.95* Partnership Agreement for Toll Naval Associates. 3.96* Bylaws for Toll PA GP Corp. 4.1 Indenture dated as of November 22, 2002 between Toll Brothers Finance Corp., as issuer, Toll Brothers, Inc. as guarantor, and Bank One Trust Company, as Trustee, including form of guarantee, is hereby incorporated by reference to Exhibit 4.1 of the Toll Brothers, Inc.'s Form 8-K filed with the Securities and Exchange Commission on November 27, 2002. 4.2 Authorizing Resolutions, dated as of November 15, 2002, relating to $300,000,000 principal amount of 6.875% Senior Notes of Toll Brothers Finance Corp. due 2012, guaranteed on a senior basis by the Toll Brothers, Inc. and other subsidiaries of Toll Brothers, Inc. is hereby incorporated by reference to Exhibit 4.2 of Toll Brothers Inc.'s Form 8-K filed with the Securities and Exchange Commission on November 27, 2002. 4.3 Registration Rights Agreement dated as of November 22, 2002 by and among Toll Brothers Finance Corp. and Toll Brothers, Inc. and Salomon Smith Barney Inc., Banc of America Securities LLC and Banc One Capital Markets, Inc., as the Initial Purchase Representatives is hereby incorporated by Reference to Exhibit 4.3 of Toll Brothers, Inc,'s Form 10-Q for the quarter ended January 31, 2003. 4.4* First Supplemental Indenture dated as of May 1, 2003, by and among the parties listed on Schedule A thereto and Bank One Trust Company, National Association, as trustee. 5.1*+ Form of opinion of Wolf, Block, Schorr and Solis-Cohen LLP, Philadelphia, Pennsylvania. 5.2*+ Form of opinion of Kenneth J. Gary, Esquire, Senior Vice President and General Counsel of Toll Brothers, Inc. 10.1 Purchase Agreement dated November 15, 2002 by and among, Toll Brothers Finance Corp. and Toll Brothers, Inc. and Salomon Smith Barney Inc., Banc of America Securities LLC and Banc One Capital Markets, Inc., as the Initial Purchase Representatives is hereby incorporated by reference to Exhibit 10.1 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended January 31, 2003. 10.2 Amended and Restated Credit Agreement by and among First Huntingdon Finance Corp., Toll Brothers, Inc. and the lenders which are parties thereto dated May 18, 2001, is hereby incorporated by reference to Exhibit 10.3 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended April 30, 2001. 12* Statement Regarding Computation of Ratio of Earnings to Fixed Charges. 21 Subsidiaries of Toll Brothers, Inc. is hereby incorporated by reference to Exhibit 21 of Toll Brothers, Inc.'s Form 10-K for the year ended October 31, 2002. 23.1 Consent of Wolf, Block, Schorr and Solis-Cohen LLP (included as part of Exhibit 5.1). 23.2 Consent of Kenneth J. Gary, Esquire (included as part of Exhibit 5.2). 23.3* Consent of Independent Auditors. 24** Power of Attorney. 25* Statement of Eligibility and Qualification on Form T-1 of Bank One Trust Company, National Association, as trustee of the 6.875% Senior Notes Due 2012 of Toll Brothers Finance Corp. 99.1* Form of Letter of Transmittal. 99.2* Form of Notice of Guaranteed Delivery. 99.3* Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. 99.4* Form of Letter to DTC Participants. 99.5* Form of Letter to Beneficial Holders. 99.6* Form of Exchange Agent Agreement. * Filed herewith + This exhibit, as signed, will be filed by pre-effective amendment. **Previously filed. ++Where a jurisdiction is specified for a form of organizational or governing document, such form is the document that is used, in substantially similar form, by each of the Guarantors of corresponding entity type that is organized in that jurisdiction, except with respect to any Guarantor for which that Guarantor's actual organizational/governing documents, or forms of such documents specifically identified as applicable to such Guarantor, are filed herewith. II-4 Item 22. Undertakings. The undersigned registrants hereby undertakes Each of the undersigned registrants hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (4) To respond to requests for information that is incorporated by reference into the prospectus pursuant to item 4, 10(b), 11 or 13 of this Form S-4, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of this registration statement through the date responding to the request; (5) To supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective; (6) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants of expenses incurred or paid by a director, officer or controlling person of the registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the Securities being registered, the registrants will, unless in the opinion of their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. (7) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. II-5 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, Toll Brothers Finance Corp. has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. TOLL BROTHERS FINANCE CORP. By: * -------------------------------------- Zvi Barzilay, President Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ------ * Director - ------------------------------------ Robert I. Toll * President, Chief Operating Officer, Assistant Secretary - ------------------------------------ and Director (Principal Executive Officer) Zvi Barzilay * Executive Vice President, Treasurer, Chief Financial - ------------------------------------ Officer, Assistant Secretary and Director (Principal Joel H. Rassman Financial Officer) * Vice President, Chief Accounting Officer, and Assistant - ------------------------------------ Secretary (Principal Accounting Officer) Joseph R. Sicree *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-6 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, Toll Brothers, Inc. has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. TOLL BROTHERS, INC. By: * --------------------------------- Robert I. Toll, Chairman of the Board of Directors Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ------ * Chairman of the Board, Chief Executive Officer and - ---------------------------------- Director (Principal Executive Officer) Robert I. Toll * Vice Chairman of the Board and Director - ---------------------------------- Bruce E. Toll * President, Chief Operating Officer and Director - ---------------------------------- Zvi Barzilay
II-7
* Director - ------------------------------------ Robert S. Blank * Director - ------------------------------------ Edward G. Boehne * Director - ------------------------------------ Richard J. Braemer * Director - ------------------------------------ Roger S. Hillas * Director - ------------------------------------ Carl B. Marbach * Director - ------------------------------------ Stephen A. Novick * Senior Vice President, Treasurer, Chief Financial - ------------------------------------ Officer and Director (Principal Financial Officer) Joel H. Rassman * Director - ------------------------------------ Paul E. Shapiro * Vice President and Chief Accounting Officer - ------------------------------------ (Principal Accounting Officer) Joseph R. Sicree *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-8 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule I of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on the Schedule I of Additional Registrants) By: ** --------------------------------------- Zvi Barzilay, President of each Registrant listed on Schedule I of Additional Registrants that are corporations or limited liability companies and President of the corporate general partner or limited liability company general partner of each Registrant listed on Schedule I of Additional Registrants that are limited partnerships. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities* indicated on June 12, 2003. *Except as otherwise provided herein, each of the following persons hold each of the positions listed next to his/her name for each Registrant listed on Schedule I of Additional Registrants. Where the Registrant is a limited partnership, this registration statement has been signed by the following persons on behalf of such entities' corporate general partner in the capacities indicated.
Signature Title - --------- ----- ** Director (as to corporate Registrants)/Manager - --------------------------------- (as to limited liability company Registrants) Robert I. Toll
II-9
** President, Chief Operating Officer, Assistant Secretary - -------------------------------------- and Director (as to corporate Registrants)/Manager (as Zvi Barzilay to limited liability company Registrants) (Principal Executive Officer) ** Senior Vice President, Treasurer, Chief Financial - -------------------------------------- Officer, Assistant Secretary and Director (as to Joel H. Rassman corporate Registrants)/Manager (as to limited liability company Registrants) (Principal Financial Officer) ** Vice President, Chief Accounting Officer, and Assistant - -------------------------------------- Secretary (Principal Accounting Officer) Joseph R. Sicree **By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-10 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule II of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on the Schedule II of Additional Registrants) By: ** --------------------------------------- Zvi Barzilay, President of each Registrant listed on Schedule II of Additional Registrants that are corporations or limited liability companies and President of the corporate general partner of each Registrant listed on Schedule II of Additional Registrants that are limited partnerships. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities* indicated on June 12, 2003. * Except as otherwise provided herein, each of the following persons hold each of the positions listed next to his/her name for each Registrant listed on Schedule II of Additional Registrants. Where the Registrant is a limited partnership, this registration statement has been signed by the following persons on behalf of such entities' corporate general partner in the capacities indicated.
Signature Title - --------- ----- ** Director (as to corporate Registrants)/Manager - --------------------------------- (as to limited liability company Registrants) Robert I. Toll
II-11
** President, Chief Operating Officer, Assistant Secretary - -------------------------------------- and Director (as to corporate Registrants)/Manager (as Zvi Barzilay to limited liability company Registrants) (Principal Executive Officer) ** Senior Vice President, Treasurer, Chief Financial - -------------------------------------- Officer, Assistant Secretary and Director (as to Joel H. Rassman corporate Registrants)/Manager (as to limited liability company Registrants) (Principal Financial Officer) ** Vice President, Chief Accounting Officer, and Assistant - -------------------------------------- Secretary (Principal Accounting Officer) Joseph R. Sicree ** Director (as to corporate Registrants)/Manager - -------------------------------------- (as to limited liability company Registrants) Douglas C. Yearley, Jr. **By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-12 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule III of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule III of Additional Registrants) By: * ------------------------------------- Michael Donnelly, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President and Manager (Principal Executive Officer) - ---------------------------------- Michael Donnelly * Vice President and Manager - ---------------------------------- Ronald Blum * Treasurer, Secretary, and Manager (Principal Financial - ---------------------------------- Officer) (Principal Accounting Officer) Joseph Pease *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-13 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule IV of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed Schedule IV of Additional Registrants Table IV) By: * ----------------------------------- Michael Donnelly, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President and Manager (Principal Executive Officer) - ---------------------------------- Michael Donnelly * Vice President and Manager - ---------------------------------- Robert Fordham * Treasurer, Secretary, and Manager (Principal Financial - ---------------------------------- Officer) (Principal Accounting Officer) Roger Dalal *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-14 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, Frenchman's Reserve Country Club, Inc. has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Frenchman's Reserve Country Club, Inc. By: * -------------------------------------- Michael Donnelly, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President and Director (Principal Executive Officer) - ---------------------------------- Michael Donnelly * Vice President and Director - ---------------------------------- Ronald Blum * Treasurer, Secretary, and Director (Principal Financial - ---------------------------------- Officer) (Principal Accounting Officer) Roert Fordham *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-15 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, Mizner Country Club, Inc. has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Mizner Country Club, Inc. By: * --------------------------------------- Michael Donnelly, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President and Director (Principal Executive Officer) - ---------------------------------- Michael Donnelly * Vice President and Director - ---------------------------------- Robert Fordham * Treasurer, Secretary, and Director (Principal Financial - ---------------------------------- Officer) (Principal Accounting Officer) Joseph Pease *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-16 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule V of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule V of Additional Registrants) By: ** ------------------------------------- John A. Oscar, Jr. President of each Registrant listed on Schedule V of Additional Registrants that are corporations or limited liability companies and President of the corporate general partner of each Registrant listed on Schedule V of Additional Registrants that are limited partnerships. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities* indicated on June 12, 2003. * Except as otherwise provided herein, each of the following persons hold each of the positions listed next to his/her name for each Registrant listed on Schedule V of Additional Registrants. Where the Registrant is a limited partnership, this registration statement has been signed by the following persons on behalf of such entities' corporate general partner in the capacities indicated. Where the Registrant is a limited liability company, this registration statement has been signed by the following persons on behalf of such entities' corporate general partner in the capacities indicated. II-17
Signature Title - --------- ----- ** President, Treasurer and Director (as to corporate - ------------------------------------- Registrants)/Manager (as to limited liability company John A. Oscar, Jr. Registrants) (Principal Executive Officer) (Principal Financial Officer) (Principal Accounting Officer) ** Vice President and Director (as to corporate - ------------------------------------- Registrants)/Manager (as to limited liability company Joel H. Rassman Registrants) ** Secretary and Director (as to corporate - ------------------------------------- Registrants)/Manager (as to limited liability company Gordon W. Stewart Registrants) ** Assistant Secretary and Director (as to corporate - ------------------------------------- Registrants)/Manager (as to limited liability company Mark J. Warshauer Registrants) ** Director (as to corporate Registrants)/Manager (as to - ------------------------------------- limited liability company Registrants) Ann DiFiore **By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-18 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, C.B.A.Z. Construction Company LLC has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. C.B.A.Z. Construction Company LLC By: * ---------------------------------- Wayne S. Patterson, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President and Manager (Principal Executive Officer) - -------------------------------------- Wayne S. Patterson * Vice President and Manager - -------------------------------------- Richard T. Hartman * Vice President, Secretary, Treasurer and Manager (Chief - -------------------------------------- Financial Officer) (Chief Accounting Officer) Charles W. Bowie *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-19 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule VI of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule VI of Additional Registrants) By: * --------------------------------------- Zvi Barzilay, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President, Chief Operating Officer, Secretary and - -------------------------------------- Director (Principal Executive Officer) Zvi Barzilay * Senior Vice President, Treasurer, Chief Financial - -------------------------------------- Officer, Assistant Secretary and Director (Principal Joel H. Rassman Financial Officer) (Principal Accounting Officer) * Director - -------------------------------------- Robert I. Toll *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-20 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule VII of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule VII of Additional Registrants) By: ** ------------------------------------------ Zvi Barzilay, President of each Registrant listed on Schedule VII of Additional Registrants that are corporations or limited liability companies and President of the corporate general partner of each Registrant listed on Schedule VII of Additional Registrants that are limited partnerships. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities* indicated on June 12, 2003. * Except as otherwise provided herein, each of the following persons hold each of the positions listed next to his/her name for each Registrant listed on Schedule VII of Additional Registrants. Where the Registrant is a limited partnership, this registration statement has been signed by the following persons on behalf of such entities' corporate general partner in the capacities indicated.
Signature Title - --------- ----- ** President, Chief Operating Officer, Secretary and - -------------------------------- Director (Principal Executive Officer) Zvi Barzilay
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** Senior Vice President, Treasurer, Chief Financial - ------------------------------------ Officer, Assistant Secretary and Director (Principal Joel H. Rassman Financial Officer) (Principal Accounting Officer) ** Director - ------------------------------------ Robert I. Toll ** Director - ------------------------------------ Douglas C. Yearley, Jr. **By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-22 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule VIII of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule VIII of Additional Registrants) By: * ------------------------------------------ James Smith, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President and Manager (Principal Executive Officer) - ------------------------------------ James Smith * Treasurer, Secretary and Manager (Principal Financial - ------------------------------------ Officer) (Principal Accounting Officer) Eric C. Pino * Vice President and Manager - ------------------------------------ Gordon R. Ivascu *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-23 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule IX of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule IX of Additional Registrants) By: * ----------------------------------------- Thomas Anhut, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President and Manager (Principal Executive Officer) - ------------------------------- Thomas Anhut * Treasurer, Secretary and Manager (Principal Financial - ------------------------------- Officer) (Principal Accounting Officer) Richard Gannon * Vice President and Manager - ------------------------------ Brad Nelson *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-24 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule X of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule X of Additional Registrants) By: * --------------------------------------------- James Boyd, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President and Manager (Principal Executive Officer) - ------------------------------------- James Boyd * Treasurer, Secretary and Manager (Principal Financial - ------------------------------------- Officer) (Principal Accounting Officer) Michael Nix * Vice President and Manager - -------------------------------------- Craig Messi *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-25 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule XI of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule XI of Additional Registrants) By: * ----------------------------------------- Gary Lemon, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President and Manager (Principal Executive Officer) - ------------------------------------ Gary Lemon * Treasurer, Secretary and Manager (Principal Financial - ------------------------------------ Officer) (Principal Accounting Officer) James Kemp * Vice President and Manager - ------------------------------------- Lee Dotson *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-26 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, Naples TBI Realty, LLC has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Naples TBI Realty, LLC By: * ---------------------------------------- Ralph Reinert, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President (Principal Executive Officer) - -------------------------------- Ralph Reinert * Vice President - -------------------------------- Kenneth Thirtyacre * Manager - -------------------------------- Helen Walker *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-27 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, Naples Lakes Country Club, L.L.C. has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Naples Lakes Country Club, L.L.C. By: * ---------------------------------------- Ralph Reinert, Manager (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * Manager (Principal Executive Officer) (Principal - -------------------------------- Financial Officer) (Principal Accounting Officer) Ralph Reinert *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-28 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, Martin County Improvement Association LLC, has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Martin County Improvement Association LLC By: * ---------------------------------------- David Layman, Manager (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * Manager (Principal Executive Officer) (Principal - -------------------------------- Financial Officer) (Principal Accounting Officer) David Layman *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-29 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, Toll Realty L.L.C. has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Toll Realty L.L.C. By: * ----------------------- Brian Loftus, Manager Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President (Principal Executive Officer) - -------------------------------------- Kenneth Thirtyacre * Manager - -------------------------------------- Brian Loftus * Vice President - -------------------------------------- James Manners * Secretary and Treasurer (Principal Financial Officer) - -------------------------------------- (Principal Accounting Officer) Ralph Reinert *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-30 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule XII of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on the Schedule XII of Additional Registrants) By: ** ---------------------------------------------------------- Wayne S. Patterson, President of each Registrant listed on Schedule XII of Additional Registrants that are corporations or limited liability companies and President of the corporate general partner of each Registrant listed on Schedule XII of Additional Registrants that are limited partnerships. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities* indicated on June 12, 2003. * Except as otherwise provided herein, each of the following persons hold each of the positions listed next to his/her name for each Registrant listed on Schedule XII of Additional Registrants. Where the Registrant is a limited partnership, this registration statement has been signed by the following persons on behalf of such entities' corporate general partner in the capacities indicated. II-31
Signature Title - --------- ----- ** President and Director (Principal Executive Officer) - -------------------------------- Wayne S. Patterson ** Vice President, Secretary and Director - -------------------------------- Kenneth J. Gary **By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-32 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule XIII of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule XIII of Additional Registrants) By: * --------------------------------------- Andrew Stern, Manager Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * Manager (Principal Executive Officer) (Principal - -------------------------------- Financial Officer) (Principal Accounting Officer) Andrew Stern *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-33 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule XIV of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule XIV of Additional Registrants) By: * --------------------------------------- Wayne S. Patterson, Manager (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * Manager (Principal Executive Officer) (Principal - ---------------------------------------- Financial Officer) (Principal Accounting Officer) Wayne S. Patterson *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-34 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule XV of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule XV of Additional Registrants) By: ** ------------------------------------------- John A. Oscar, Jr., President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities* indicated on June 12, 2003. * Except as otherwise provided herein, each of the following persons hold each of the positions listed next to his/her name for each Registrant listed on Schedule XII of Additional Registrants. Where the Registrant is a limited liability company, this registration statement has been signed by the following persons on behalf of such entities' corporate general partner in the capacities indicated.
Signature Title - --------- ----- ** President and Treasurer (Principal Executive Officer) - --------------------------------------- John A. Oscar, Jr. ** Vice President and Director (as to corporate - --------------------------------------- Registrants)/Manager (as to limited liability company Joel H. Rassman Registrants)
II-35
** Secretary and Director (as to corporate - ------------------------------------- Registrants)/Manager (as to limited liability company Gordon W. Stewart Registrants) ** Director (as to corporate Registrants)/Manager (as to - ------------------------------------- limited liability company Registrants) Edward Jones **By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-36 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, South Riding Realty LLC has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. South Riding Realty LLC By: * ------------------------------------------ William Gilligan, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President and Manager (Principal Executive Officer) - -------------------------------- William Gilligan * Vice President and Manager - -------------------------------- John Harris * Secretary, Treasurer and Manager (Principal Financial - -------------------------------- Officer) (Principal Accounting Officer) John Tsitos *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-37 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule XVI of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule XVI of Additional Registrants) By: * --------------------------------------- Robert Craig, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President and Manager (Principal Executive Officer) - -------------------------------------- Robert Craig * Treasurer, Secretary and Manager (Principal Financial - -------------------------------------- Officer) (Principal Accounting Officer) Paul Luck * Vice President and Manager - -------------------------------------- William Perry *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-38 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, each of the Registrants, as listed on the attached Schedule XVII of Additional Registrants has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Lower Moreland, Commonwealth of Pennsylvania, on June 12, 2003. Registrants (As Listed on Schedule XVII of Additional Registrants) By: * ------------------------------------------ John Gasque, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ----- * President and Manager (Principal Executive Officer) - ------------------------------------- John Gasque * Treasurer, Secretary and Manager (Principal Financial - ------------------------------------- Officer) (Principal Accounting Officer) Gregory Harold * Vice President and Manager - ------------------------------------- Paul Eberz *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-39 SIGNATURES AND POWER OF ATTORNEY Pursuant to the requirements of the Securities Act of 1933, Northville Hills Golf Club LLC has caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Farmington Hills, state of Michigan, on June 12, 2003. Northville Hills Golf Club LLC By: * --------------------------------------------- Keith Anderson, President (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities indicated on June 12, 2003.
Signature Title - --------- ------ * President and Manager (Principal Executive - ------------------------------------------------ Officer) Keith Anderson * Vice President and Manager - ------------------------------------------------ John Oberlin * Treasurer, Secretary, and Manager (Principal Financial - ------------------------------------------------ Officer) (Principal Accounting Officer) William Bye *By Joseph R. Sicree ---------------------------------- Joseph R. Sicree, Attorney-in-Fact pursuant to powers of attorney previously filed as part of this Registration Statement
II-40 Schedule I of Additional Registrants Exact Name of Registrant as Specified in its Charter Toll Holdings, Inc. Amwell Chase, Inc. BBCC Investments, Inc. Brentwood Investments I, Inc Bunker Hill Estates, Inc. Chesterbrooke, Inc. Connecticut Land Corp Daylesford Development Corp. Eastern States Engineering, Inc. Edmunds-Toll Construction Company Fairway Valley, Inc. First Huntingdon Finance Corp. Franklin Farms G.P., Inc. MA Limited Land Corporation Maple Point, Inc. Maryland Limited Land Corporation Polekoff Farm, Inc. Springfield Chase, Inc. Stewarts Crossing, Inc. Tampa Realty Associates, Inc. Tenby Hunt, Inc. Toll AZ GP Corp. Toll Bros., Inc. (Pennsylvania) Toll Bros., Inc. (Delaware) Toll Bros., Inc. (Texas) Toll Bros. of Arizona, Inc. Toll Bros. of North Carolina, Inc. Toll Bros. of North Carolina II, Inc. Toll Bros. of North Carolina III, Inc. II-41 Toll Brothers Real Estate, Inc. Toll CA GP Corp. Toll CO GP Corp. Toll Corp. Toll Finance Corp. Toll FL GP Corp. Toll IL GP Corp. Toll Land Corp. No. 6 Toll Land Corp. No. 10 Toll Land Corp. No. 20 Toll Land Corp. No. 43 Toll Land Corp. No. 45 Toll Land Corp. No. 46 Toll Land Corp. No. 47 Toll Land Corp. No. 48 Toll Land Corp. No. 49 Toll Land Corp. No. 50 Toll Land Corp. No. 51 Toll Land Corp. No. 52 Toll Land Corp. No. 53 Toll Land Corp. No. 55 Toll Land Corp. No. 56 Toll Land Corp. No. 58 Toll Land Corp. No. 59 Toll Land Corp. No. 60 Toll NV GP Corp. Toll NC GP Corp. Toll OH GP Corp. Toll PA GP Corp. Toll PA II GP Corp. Toll Peppertree, Inc. Toll Philmont Corporation II-42 Toll RI GP Corp. Toll SC GP Corp. Toll TN GP Corp. Toll TX GP Corp. Toll VA GP Corp. Toll VA Member Two, Inc. Toll Wood Corporation Toll YL, Inc. Valley Forge Conservation Holding GP Corp. Warren Chase, Inc. Windsor Development Corp. Afton Chase, L.P. Audubon Ridge, L.P. BBCC Golf, L.P. BBCC Investments, L.P. Beaumont Chase, L.P. Belmont Land, L.P. Bennington Hunt, L.P. Bernards Chase, L.P. Binks Estates Limited Partnership The Bird Estate Limited Partnership Blue Bell Country Club, L.P. Branchburg Ridge, L.P. Brandywine River Estates, L.P. Brass Castle Estates, L.P. Brentwood Investments, L.P. Bridle Estates, L.P. Broad Run Associates, L.P. Buckingham Woods, L.P. Bucks County Country Club, L.P. CC Estates Limited Partnership Calabasas View, L.P. II-43 Charlestown Hills, L.P. Chesterbrooke Limited Partnership Chesterfield Hunt, L.P. Cobblestones at Thornbury, L.P. Cold Spring Hunt, L.P. Coleman-Toll Limited Partnership Concord Chase, L.P. Cortlandt Chase, L.P. Delray Limited Partnership Dolington Estates, L.P. Dominion Country Club, L.P. Eagle Farm Limited Partnership Edmunds-Toll Limited Partnership Eldorado Country Estates, L.P. Estates at Autumnwood, L.P. The Estates at Brooke Manor Limited Partnership Estates at Coronado Pointe, L.P. The Estates at Potomac Glen Limited Partnership Estates at Princeton Junction, L.P. Estates at Rivers Edge, L.P. Estates at San Juan Capistrano, L.P. The Estates at Summit Chase, L.P. Fairfax Investment, L.P. Fairfax Station Hunt, L.P. Fair Lakes Chase, L.P. Fairway Mews Limited Partnership Farmwell Hunt, L.P. Franklin Oaks Limited Partnership Freehold Chase, L.P. Great Falls Hunt, L.P. Great Falls Woods, L.P. Greens at Waynesborough, L.P. II-44 Greenwich Chase, L.P. Greenwich Station, L.P. Hockessin Chase, L.P. Holland Ridge, L.P. Holliston Hunt Limited Partnership Hopewell Hunt, L.P. Huckins Farm Limited Partnership Hunter Mill, L.P. Hunterdon Chase, L.P. Hunterdon Ridge, L.P. Huntington Estates Limited Partnership Hurley Ridge Limited Partnership Independence Hill, L.P. Kensington Woods Limited Partnership Knolls of Birmingham, L.P. Lakeridge, L.P. Lakeway Hills Properties, L.P. Laurel Creek, L.P. Loudoun Valley Associates, L.P. Mallard Lakes, L.P. Manalapan Hunt, L.P. Marshallton Chase, L.P. Mill Road Estates, L.P. Montgomery Chase, L.P. Montgomery Oaks, L.P. Moorestown Hunt, L.P. Mount Kisco Chase, L.P. NC Country Club Estates Limited Partnership Newtown Chase Limited Partnership Northampton Crest, L.P. Northampton Preserve, L.P. Patriots, L.P. II-45 The Preserve Limited Partnership The Preserve at Annapolis Limited Partnership The Preserve at Boca Raton Limited Partnership Preston Village Limited Partnership Princeton Hunt, L.P. Providence Limited Partnership Providence Hunt, L.P. Providence Plantation Limited Partnership Regency at Dominion Valley, L.P. River Crossing, L.P. Rolling Greens, L.P. Rose Tree Manor, L.P. Seaside Estates Limited Partnership Shrewsbury Hunt Limited Partnership Somers Chase, L.P. Somerset Development Limited Partnership South Riding, L.P. South Riding Partners, L.P. Southlake Woods, L.P. Southport Landing Limited Partnership Springton Pointe, L.P. Stone Mill Estates, L.P. Stoney Ford Estates, L.P. Swedesford Chase, L.P. TBI/Heron Bay Limited Partnership TBI/Naples Limited Partnership TBI/Palm Beach Limited Partnership Tenby Hunt, L.P. Thornbury Knoll, L.P. Toll at Brier Creek Limited Partnership Toll at Daventry Park, L.P. II-46 Toll at Payne Ranch, L.P. Toll at Potomac Woods, L.P. Toll at Princeton Walk, L.P. Toll at Westlake, L.P. Toll at Whippoorwill, L.P. Toll Bros. of Tennessee, L.P. Toll Brothers Maryland II Limited Partnership Toll CA, L.P. Toll CA II, L.P. Toll CA III, L.P. Toll CA IV, L.P. Toll CA V, L.P. Toll CA VI, L.P. Toll CO, L.P. Toll CT Limited Partnership Toll CT II Limited Partnership Toll CT Westport Limited Partnership Toll-Dublin, L.P. Toll Estero Limited Partnership Toll FL Limited Partnership Toll Ft. Myers Limited Partnership Toll IL, L.P. Toll IL II, L.P. Toll IL III, L.P. Toll IL HWCC, L.P. Toll Land Limited Partnership Toll Land IV Limited Partnership Toll Land V Limited Partnership Toll Land VI Limited Partnership Toll Land VII Limited Partnership Toll Land VIII Limited Partnership Toll Land IX Limited Partnership II-47 Toll Land X Limited Partnership Toll Land XI Limited Partnership Toll Land XII Limited Partnership Toll Land XIII Limited Partnership Toll Land XIV Limited Partnership Toll Land XV Limited Partnership Toll Land XVI Limited Partnership Toll Land XVII Limited Partnership Toll Land XVIII Limited Partnership Toll Land XIX Limited Partnership Toll Land XX Limited Partnership Toll Land XXI Limited Partnership Toll Land XXII Limited Partnership Toll Land XXIII Limited Partnership Toll Land XXV Limited Partnership Toll Land XXVI Limited Partnership Toll Land XXVII Limited Partnership Toll MD Limited Partnership Toll MD II Limited Partnership Toll MD III Limited Partnership Toll MD IV Limited Partnership Toll Naples Limited Partnership Toll Naval Associates Toll NJ, L.P. Toll NJ II, L.P. Toll NJ III, L.P. Toll NJ IV, L.P. Toll NJ V, L.P. Toll NJ VI, L.P. Toll NV Limited Partnership Toll PA, L.P. Toll PA II, L.P. II-48 Toll PA III, L.P. Toll PA IV, L.P. Toll PA V, L.P. Toll PA VI, L.P. Toll PA VII, L.P. Toll Peppertree, L.P. Toll Reston Associates, L.P. Toll RI, L.P. Toll RI II, L.P. Toll SC, L.P. Toll SC II, L.P. Toll TX, L.P. Toll TX II, L.P. Toll VA, L.P. Toll VA II, L.P. Toll VA IV, L.P. Toll VA V, L.P. Toll Venice Limited Partnership Toll YL, L.P. Toll YL II, L.P. Trumbull Hunt Limited Partnership Uwchlan Woods, L.P. Valley Forge Conservation Holding, L.P. Valley Forge Woods, L.P. Valley View Estates Limited Partnership Village Partners, L.P. Warwick Greene, L.P. Warwick Woods, L.P. Washington Greene Development, L.P. West Amwell Limited Partnership Whiteland Woods, L.P. Wichita Chase, L.P. II-49 Willowdale Crossing, L.P. Wilson Concord, L.P. Woodbury Estates, L.P. The Woods at Highland Lakes, L.P. The Woods at Long Valley, L.P. The Woods at Muddy Branch Limited Partnership Wrightstown Hunt, L.P. Yardley Estates, L.P. Big Branch Overlook L.L.C. Creeks Farm L.L.C. Feys Property LLC High Point at Hopewell, LLC Hunts Bluff LLC Long Meadows TBI, LLC Nosan & Silverman Homes LLC Regency at Denville LLC Regency at Dominion Valley LLC RiverCrest Sewer Company, LLC Sapling Ridge, LLC SR Amberlea LLC Toll Cedar Hunt LLC Toll-Dublin, LLC Toll Equipment, L.L.C. Toll NJ I, L.L.C. Toll NJ II, L.L.C. Toll Reston Associates, L.L.C. Toll VA L.L.C Toll VA III L.L.C. Virginia Construction Co. I, LLC Virginia Construction Co. II, LLC II-50 Schedule II of Additional Registrants Exact Name of Registrant as Specified in its Charter HQZ Acquisitions, Inc. The Silverman Building Companies, Inc. Silverman Development Company, Inc. SH Homes Corporation SI Investment Corporation Toll MI GP Corp. Cheltenham Estates Limited Partnership Maple Creek Limited Partnership Newport Ridge Limited Partnership Silverman-Toll Limited Partnership Timber Ridge Investment Limited Partnership Toll MI Limited Partnership Toll MI II Limtied Partnership Toll MI III Limited Partnership Toll Northville Limited Partnership Toll Northville Golf Limited Partnership Waldon Preserve Limited Partnership Schedule III of Additional Registrants Exact Name of Registrant as Specified in its Charter Frenchman's Reserve Realty, LLC Mizner Realty, L.L.C. Schedule IV of Additional Registrants Exact Name of Registrant as Specified in its Charter Palm Cove Golf & Yacht Club I LLC Palm Cove Golf & Yacht Club II LLC Palm Cove Marina I LLC Palm Cove Marina II LLC II-51 Schedule V of Additional Registrants Exact Name of Registrant as Specified in its Charter Toll NJX-I Corp. Toll NJX-II Corp. Toll DE X, LLC TB Proprietary Corp. First Brandywine Finance Corp. First Brandywine Investment Corp II. First Brandywine Investment Corp III Toll Bros. of Tennessee, Inc. Toll VA Member Two, Inc. TB Proprietary LP, Inc. TB Proprietary, L.P. First Brandywine LLC I First Brandywine LLC II First Brandywine Partners, L.P. Rose Hollow Crossing Associates Schedule VI of Additional Registrants Exact Name of Registrant as Specified in its Charter Toll Realty Holdings Corp. I Toll Realty Holdings Corp. II Schedule VII of Additional Registrants Exact Name of Registrant as Specified in its Charter Toll Realty Holdings Corp. III Toll Brothers Realty Michigan II LLC II-52 Schedule VIII of Additional Registrants Exact Name of Registrant as Specified in its Charter Belmont Country Club I LLC Belmont Country Club II LLC Schedule IX of Additional Registrants Exact Name of Registrant as Specified in its Charter Brier Creek Country Club I LLC Brier Creek Country Club II LLC Schedule X of Additional Registrants Exact Name of Registrant as Specified in its Charter Golf I Country Club Estates at Moorpark LLC Golf II Country Club Estates at Moorpark LLC Schedule XI of Additional Registrants Exact Name of Registrant as Specified in its Charter Mountain View Country Club I LLC Mountain View Country Club II LLC Schedule XII of Additional Registrants Exact Name of Registrant as Specified in its Charter Toll NH Limited Partnership Toll NH GP Corp. Schedule XIII of Additional Registrants Exact Name of Registrant as Specified in its Charter ELB Investments I LLC ELB Investments II LLC II-53 Schedule XIV of Additional Registrants Exact Name of Registrant as Specified in its Charter FC Investments I LLC FC Investments II LLC Schedule XV of Additional Registrants Exact Name of Registrant as Specified in its Charter Toll Management AZ Corp. Toll Management VA Corp. C.B.A.Z. Holding Company LLC Schedule XVI of Additional Registrants Exact Name of Registrant as Specified in its Charter Dominion Valley Country Club I LLC Dominion Valley Country Club II LLC Schedule XVII of Additional Registrants Exact Name of Registrant as Specified in its Charter The Regency Golf Club I LLC The Regency Golf Club II LLC II-54 Index To Exhibits++ ================================================================================ 3.1* Form of Articles of Incorporation for Guarantors incorporated in the State of Arizona. 3.2* Form of Articles of Organization for Guarantors organized in the State of Arizona. 3.3* Form of Articles of Incorporation for Guarantors incorporated in the State of California. 3.4* Form of Articles of Organization for Guarantors organized in the State of California. 3.5* Form of Certificate of Limited Partnership for Guarantors organized in the State of California. 3.6* Form of Articles of Incorporation for Guarantors incorporated in the State of Colorado. 3.7* Form of Certificate of Limited Partnership for Guarantors organized in the State of Colorado. 3.8* Form of Certificate of Limited Partnership for Guarantors organized in the State of Connecticut. 3.9* Form of the Certificate of Incorporation for Guarantors incorporated in the State of Delaware. 3.10* Form of Certificate of Formation for Guarantors organized in the State of Delaware. 3.11* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Delaware. 3.12* Form of Articles of Incorporation for the Guarantors incorporated in the State of Florida. 3.13* Form of Articles of Organization for the Guarantors organized in the State of Florida. 3.14* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Florida. 3.15* Form of Articles of Incorporation for the Guarantors incorporated in the State of Illinois. 3.16* Form of Articles of Organization for the Guarantors organized in the State of Illinois. 3.17* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Illinois. 3.18* Form of Articles of Organization for the Guarantors organized in the State of Maryland. 3.19* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Maryland. 3.20* Form of Certificate of Organization for the Guarantors organized in the Commonwealth of Massachusetts. 3.21* Form of Certificate of Limited Partnership for the Guarantors organized in the Commonwealth of Massachusetts. 3.22* Form of Articles of Incorporation for the Guarantors incorporated in the State of Michigan. 3.23* Form of Articles of Organization for the Guarantors organized in the State of Michigan. 3.24* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Michigan. 3.25* Form of Articles of Incorporation for the Guarantors incorporated in the State of Nevada. 3.26* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Nevada. 3.27* Form of Articles of Incorporation for the Guarantors incorporated in the State of New Hampshire. 3.28* Form of Certificate of Limited Partnership for the Guarantors organized in the State of New Hampshire. 3.29* Form of Certificate of Formation for the Guarantors organized in the State of New Jersey. 3.30* Form of Certificate of Limited Partnership for the Guarantors organized in the State of New Jersey. 3.31* Form of Certificate of Incorporation for the Guarantors incorporated in the State of New York. 3.32* Form of Certificate of Limited Partnership for the Guarantors organized in the State of New York. 3.33* Form of Articles of Incorporation for the Guarantors incorporated in the State of North Carolina. 3.34* Form of Articles of Organization for the Guarantors organized in the State of North Carolina. 3.35* Form of Certificate of Limited Partnership for the Guarantors organized in the State of North Carolina. 3.36* Form of Articles of Incorporation for the Guarantors incorporated in the State of Ohio. 3.37* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Ohio. 3.38* Form of Certificate of Articles of Incorporation for the Guarantors incorporated in the Commonwealth of Pennsylvania. 3.39* Form of Certificate of Organization for the Guarantors organized in the Commonwealth of Pennsylvania. 3.40* Form of Certificate of Limited Partnership for the Guarantors organized in the Commonwealth of Pennsylvania. 3.41* Form of Articles of Incorporation for the Guarantors incorporated in the State of Rhode Island. 3.42* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Rhode Island. 3.43* Form of Articles of Incorporation for the Guarantors incorporated in the State of South Carolina. 3.44* Form of Certificate of Limited Partnership for the Guarantors organized in the State of South Carolina. 3.45* Form of Articles of Incorporation for the Guarantors incorporated in the State of Tennessee. 3.46* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Tennessee. 3.47* Form of Articles of Incorporation for the Guarantors incorporated in the State of Texas. 3.48* Form of Certificate of Limited Partnership for the Guarantors organized in the State of Texas. 3.49* Form of Articles of Organization for the Guarantors organized in the Commonwealth of Virginia. 3.50* Form of Certificate of Limited Partnership for the Guarantors organized in the Commonwealth of Virginia. 3.51* Form of Bylaws for the Guarantors. 3.52* Form of Limited Liability Company Operating Agreement for the Guarantors. 3.53* Form of Limited Partnership Agreement for the Guarantors. 3.54* Form of Limited Liability Company Agreement for C.B.A.Z. Holding Company LLC, First Brandywine LLC I and First Brandywine LLC II. 3.55* Form of Certificate of Incorporation for Eastern States Engineering, Inc. and Fairway Valley, Inc. 3.56* Form of Bylaws for Eastern States Engineering, Inc. and Fairway Valley, Inc. 3.57* Form of Bylaws for TB Proprietary, L.P., Inc., Toll NJX-I Corp. and Toll NJX-II Corp. 3.58* Form of Certificate of Incorporation for Toll Bros. of Tennessee, Inc., Toll Management AZ Corp., Toll Management VA Corp., Toll NJX-I Corp., Toll NJX-II Corp. and Toll VA Member Two, Inc. 3.59* Form of Bylaws for Toll Bros. of Tennessee, Inc., Toll Management AZ Corp., Toll Management VA Corp. and Toll VA Member Two, Inc. 3.60* Form of Articles of Organization for Big Branch Overbrook LLC and Sapling Ridge, LLC. 3.61* Form of Articles of Incorporation for HQZ Acquisitions, Inc. and The Silverman Building Companies, Inc. 3.62* Form of Articles of Incorporation for Silverman Development Company, Inc., SH Homes Corporation and SI Investment Corporation. 3.63* Form of Articles of Incorporation for Polekoff Farm, Inc., Toll Bros., Inc., Toll Real Estate, Inc., Toll Land Corp. No. 6 and Windsor Development Corp. 3.64* Form of Bylaws for Polekoff Farm, Inc., Toll Bros., Inc., Toll Land Corp. No. 6 and Windsor Development Corp. 3.65* Form of Certificate of Incorporation for Toll Realty Holdings Corp. I, Toll Realty Holdings Corp. II and Toll Realty Holdings Corp. III. 3.66* Form of Bylaws for Toll Realty Holdings Corp. I, Toll Realty Holdings Corp. II and Toll Realty Holdings Corp. III. 3.67* Form of Operating Agreement for Brier Creek Country Club I LLC and Brier Creek Country Club II LLC. 3.68* Form of Operating Agreement for Belmont Country Club I LLC, Belmont Country Club II LLC, Dominion Valley Country Club I, LLC and Dominion Valley Country Club II, LLC. 3.69* Form of Operating Agreement for Golf I Country Club Estates at Moorpark LLC and Golf II Country Club Estates at Moorpark LLC. 3.70 Restated Certificate of Incorporation for Toll Brothers, Inc. dated July 1, 1996, is hereby incorporated by reference to Exhibit 3.1 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended January 31, 2002. 3.71 Amendment to the Restated Certificate of Incorporation for Toll Brothers, Inc. dated March 7, 1989, is hereby incorporated by reference to Exhibit 3.2 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended January 31, 2002. 3.72 Amendment to the Restated Certificate of Incorporation for Toll Brothers, Inc. dated June 12, 1997, is hereby incorporated by reference to Exhibit 3.4 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended January 31, 2002. 3.73 Amendment to the Restated Certificate of Incorporation for Toll Brothers, Inc. dated January 8, 1998, is hereby incorporated by reference to Exhibit 3.5 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended January 31, 2002. 3.74 Amendment to the Restated Certificate of Incorporation for Toll Brothers, Inc. dated March 7, 2002, is hereby incorporated by reference to Exhibit 3.6 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended January 31, 2002. 3.75 Amended and Restated Bylaws for Toll Brothers, Inc., are hereby incorporated by reference to Exhibit 3 of Toll Brothers, Inc.'s Current Report on Form 8-K dated March 38, 2003. 3.76* Certificate of Limited Partnership for Edmunds-Toll Limited Partnership. 3.77* Articles of Incorporation for Toll YL, Inc. 3.78* Amended and Restated Certificate of Incorporation for First Brandywine Finance Corp. 3.79* Agreement of Limited Partnership for First Brandywine Partners, L.P. 3.80* Limited Liability Company Agreement for Toll DE X, L.L.C. 3.81* Bylaws for Toll Philmont Corporation. 3.82* Articles of Incorporation for Frenchman's Reserve Country Club, Inc. 3.83* Bylaws for Frenchman's Club Reserve Country Club, Inc. 3.84* Amended and Restated Articles of Incorporation for Mizner Country Club, Inc. 3.85* Bylaws for Mizner Country Club, Inc. 3.86* Articles of Organization for Naples Lakes Country Club, L.L.C. 3.87* Operating Agreement for Naples Lakes Country Club, L.L.C. 3.88* Articles of Organization for Naples TBI Realty, LLC. 3.89* Articles of Incorporation for Toll FL GP Corp. 3.90* Articles of Amendment for Feys Property LLC. 3.91* Bylaws for Toll Peppertree, Inc. 3.92* Limited Partnership Certificate for Rose Hollow Crossing Associates. 3.93* Limited Partnership Agreement for Rose Hollow Crossing Associates. 3.94* Bylaws for Toll Brothers Real Estate, Inc. 3.95* Partnership Agreement for Toll Naval Associates. 3.96* Bylaws for Toll PA GP Corp. 4.1 Indenture dated as of November 22, 2002 between Toll Brothers Finance Corp., as issuer, Toll Brothers, Inc. as guarantor, and Bank One Trust Company, as Trustee, including form of guarantee, is hereby incorporated by reference to Exhibit 4.1 of the Toll Brothers, Inc.'s Form 8-K filed with the Securities and Exchange Commission on November 27, 2002. 4.2 Authorizing Resolutions, dated as of November 15, 2002, relating to $300,000,000 principal amount of 6.875% Senior Notes of Toll Brothers Finance Corp. due 2012, guaranteed on a senior basis by the Toll Brothers, Inc. and other subsidiaries of Toll Brothers, Inc. is hereby incorporated by reference to Exhibit 4.2 of Toll Brothers Inc.'s Form 8-K filed with the Securities and Exchange Commission on November 27, 2002. 4.3 Registration Rights Agreement dated as of November 22, 2002 by and among Toll Brothers Finance Corp. and Toll Brothers, Inc. and Salomon Smith Barney Inc., Banc of America Securities LLC and Banc One Capital Markets, Inc., as the Initial Purchase Representatives is hereby incorporated by Reference to Exhibit 4.3 of Toll Brothers, Inc,'s Form 10-Q for the quarter ended January 31, 2003. 4.4* First Supplemental Indenture dated as of May 1, 2003, by and among the parties listed on Schedule A thereto and Bank One Trust Company, National Association, as trustee. 5.1*+ Form of opinion of Wolf, Block, Schorr and Solis-Cohen LLP, Philadelphia, Pennsylvania. 5.2*+ Form of opinion of Kenneth J. Gary, Esquire, Senior Vice President and General Counsel of Toll Brothers, Inc. 10.1 Purchase Agreement dated November 15, 2002 by and among, Toll Brothers Finance Corp. and Toll Brothers, Inc. and Salomon Smith Barney Inc., Banc of America Securities LLC and Banc One Capital Markets, Inc., as the Initial Purchase Representatives is hereby incorporated by reference to Exhibit 10.1 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended January 31, 2003. 10.2 Amended and Restated Credit Agreement by and among First Huntingdon Finance Corp., Toll Brothers, Inc. and the lenders which are parties thereto dated May 18, 2001, is hereby incorporated by reference to Exhibit 10.3 of Toll Brothers, Inc.'s Form 10-Q for the quarter ended April 30, 2001. 12* Statement Regarding Computation of Ratio of Earnings to Fixed Charges. 21 Subsidiaries of Toll Brothers, Inc. is hereby incorporated by reference to Exhibit 21 of Toll Brothers, Inc.'s Form 10-K for the year ended October 31, 2002. 23.1 Consent of Wolf, Block, Schorr and Solis-Cohen LLP (included as part of Exhibit 5.1). 23.2 Consent of Kenneth J. Gary, Esquire (included as part of Exhibit 5.2). 23.3* Consent of Independent Auditors. 24** Power of Attorney. 25* Statement of Eligibility and Qualification on Form T-1 of Bank One Trust Company, National Association, as trustee of the 6.875% Senior Notes Due 2012 of Toll Brothers Finance Corp. 99.1* Form of Letter of Transmittal. 99.2* Form of Notice of Guaranteed Delivery. 99.3* Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. 99.4* Form of Letter to DTC Participants. 99.5* Form of Letter to Beneficial Holders. 99.6* Form of Exchange Agent Agreement. * Filed herewith + This exhibit, as signed, will be filed by pre-effective amendment. **Previously filed. ++Where a jurisdiction is specified for a form of organizational or governing document, such form is the document that is used, in substantially similar form, by each of the Guarantors of corresponding entity type that is organized in that jurisdiction, except with respect to any Guarantor for which that Guarantor's actual organizational/governing documents, or forms of such documents specifically identified as applicable to such Guarantor, are filed herewith. EX-3.1 3 ex3-1.txt EXHIBIT 3.1 Exhibit 3.1 ARTICLES OF INCORPORATION OF [NAME OF ENTITY] The undersigned, acting as incorporators under the Arizona Business Corporation Act, adopt the following Articles of Incorporation for such corporation; FIRST: The name of the corporation is ____________________________ ___________. SECOND: The period of its duration is perpetual. THIRD: The purposes for which the corporation is organized are to engage in the transaction of any or all lawful businesses for which corporations may be incorporated under the Arizona Business Corporation Act, including, but not limited to, the business of ___________________________________________ ______________. FOURTH: The aggregate number of shares which the corporation shall have the authority to issue is ________________________________________ and the par value of said shares shall be _________________________________________. FIFTH: The name and address of the initial statutory agent of the corporation is ________________________________________________________. SIXTH: The number of directors constituting the initial board of directors is and the names and addresses of each person who is to serve as director until the first annual meeting of the shareholders or until their successors are duly elected and qualified are: ________________________________________ SEVENTH: The names and address of each incorporator are: ________________________________________ EIGHTH: A director shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts of omissions not in good faith or which involve intentional misconduct or a knowing violation of law, or (iii) for any transaction from which the director derived an improper personal benefit. IN WITNESS WHEREOF, the above-named incorporators have duly executed these Articles of Incorporation this________ day of_____________, 200__. ___________________________________ ___________________________________ CT Corporation System, having been designated to act as statutory agent, hereby consents to act in that capacity until it is removed, or submits its resignation, in accordance with the Arizona Revised Statutes. CT CORPORATION SYSTEM Date: _______________________ By: _______________________________ Name: Title: EX-3.2 4 ex3-2.txt EXHIBIT 3.2 Exhibit 3.2
DO NOT PUBLISH THIS ARTICLES OF ORGANIZATION SECTION OF ARTICLE 1 The company name ________________________________________ must contain an (An Arizona Limited Liability Company) ending which may be "limited liability company," "limited company," or the 1. Name. The name of the limited liability company is: abbreviations "L.L.C.", "L.C.", "LLC" or "LC". If _______________________________________________________________________________________________ you are the holder or assignee of a tradename or 2. Registered Office. The address of the registered office in Arizona is: trademark, attach Declaration of Tradename Holder _______________________________________________________________________________________________ form. _______________________________________________________________________________________________ ARTICLE 2 May be in care of located in the County of ______________________________________________________________________ the statutory agent. ARTICLE 3 3. Statutory Agent. (In Arizona) The name and address of the statutory agent The statutory of the company is _____________________________________________________________________________ agent must provide both a physical and _______________________________________________________________________________________________ mailing address. If statutory agent _______________________________________________________________________________________________ has P.O. ox, then they must provide a physical 4. Dissolution. The latest date, if any, on which the limited liability company description of must dissolve is ______________________________________________________________________________ their street address/location. The agent must sign 5. (a) Management. the Articles or provide a consent [] Management of the limited liability company is vested in a manger or mangers. The names and to acceptance of addresses of each person who is a manager AND each member who owns a twenty percent or appointment. greater interest in the capital or profits of the limited liability company are: ARTICLE 4 [] Management of the limited liability company is reserved to the members. The names and Complete this addresses of each person who is a member are: section only if you desire to select a date or occurrence when the company will dissolve. If perpetual duration is desired, leave this section blank. ARTICLE 5.a. Check which management structure will be applicable to your company.
DO NOT PUBLISH THIS 5.b. SECTION _______________________________________ _______________________________________ [] member [] manager [] member [] manager Name: _______________________________________ _______________________________________ Address: _______________________________________ _______________________________________ City, State, Zip: _______________________________________ _______________________________________ Name: [] member [] manager [] member [] manager _______________________________________ _______________________________________ Address: _______________________________________ _______________________________________ City, State, Zip: ARTICLE 5.B. EXECUTED this __ day of _______________, ____. Name: Depending upon your selection in 5.a., provide the names and addresses of the managers and members ______________________________________ ________________________________________ of the organization. [Signature] [Signature] Check the applicable title for each person. A member ______________________________________ ________________________________________ managed company [Print Name Here] [Print Name Here] cannot contain a manager or managers. PHONE_______________________ FAX____________________________ The person(s) executing this Acceptance of Appointment by Statutory Agent document need not be member(s) of the I, ___________________________, having been designated to act as Statutory Agent, hereby company. consent to act in that capacity until removed or resignation is submitted in accordance with the Arizona Revised Statutes. Your fax and phone number is optional. _______________________________________ Signature of Statutory Agent The agent must consent to the appointment by executing the consent. See A.R.S. ss. 29-601 et seq. for more info. LL:0004 Rev. 01/03
EX-3.3 5 ex3-3.txt EXHIBIT 3.3 Exhibit 3.3 SAMPLE ARTICLES OF INCORPORATION I The name of this corporation is (NAME OF CORPORATION) . ------------------------------------------------ II The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the GENERAL CORPORATION LAW of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. III The name and address in the State of California of this corporation's initial agent for service of process is: Name___________________________________________________________________ Address________________________________________________________________ City_______________________State CALIFORNIA Zip______________________ ---------- IV This corporation is authorized to issue only one class of shares of stock; and the total number of shares which this corporation is authorized to issue is _______________________________________________. (Signature of Incorporator) ------------------------------------------ (Typed Name of Incorporator), Incorporator Secretary of State Sample ARTS-GENERAL (07-02) EX-3.4 6 ex3-4.txt EXHIBIT 3.4 Exhibit 3.4
- ------------------------------------------------------------------------------------------------------------------------------------ [State Seal] State of California Kevin Shelley File #_____________________________________ Secretary of State LIMITED LIABILITY COMPANY ARTICLES OF ORGANIZATION A $70.00 filing fee must accompany this form. IMPORTANT - Read instructions before completing this form. This Space For Filing Use Only - ------------------------------------------------------------------------------------------------------------------------------------ 1. NAME OF THE LIMITED LIABILITY COMPANY (END THE NAME WITH THE WORDS "LIMITED LIABILITY COMPANY," "LTD. LIABILITY CO.," OR THE ABBREVIATIONS "LLC" OR "L.L.C.") - ------------------------------------------------------------------------------------------------------------------------------------ 2. THE PURPOSE OF THE LIMITED LIABILITY COMPANY IS TO ENGAGE IN ANY LAWFUL ACT OR ACTIVITY FOR WHICH A LIMITED COMPANY MAY BE ORGANIZED UNDER THE BEVERLY-KILLEA LIMITED LIABILITY COMPANY ACT. - ------------------------------------------------------------------------------------------------------------------------------------ 3. CHECK THE APPROPRIATE PROVISION BELOW AND NAME THE AGENT FOR SERVICE OF PROCESS. [ ] AN INDIVIDUAL RESIDING IN CALIFORNIA. PROCEED TO ITEM 4. [ ] A CORPORATION WHICH HAS FILED A CERTIFICATE PURSUANT TO SECTION 1505. PROCEED TO ITEM 5. AGENT'S NAME: __________________________________________________________________________________________________________ __________________________________________________________________________________________________________ - ------------------------------------------------------------------------------------------------------------------------------------ 4. ADDRESS OF THE AGENT FOR SERVICE OF PROCESS IN CALIFORNIA, IF AN INDIVIDUAL: ADDRESS CITY STATE CA ZIP CODE - ------------------------------------------------------------------------------------------------------------------------------------ 5. THE LIMITED LIABILITY COMPANY WILL BE MANAGED BY: (CHECK ONE) [ ] ONE MANAGER [ ] MORE THAN ONE MANAGER ALL LIMITED LIABILITY COMPANY MEMBER(S) - ------------------------------------------------------------------------------------------------------------------------------------ 6. OTHER MATTERS TO BE INCLUDED IN THIS CERTIFICATE MAY BE SET FORTH ON SEPARATE ATTACHED PAGES AND ARE MADE A PART OF THIS CERTIFICATE. OTHER MATTERS MAY INCLUDE THE LATEST DATE ON WHICH THE LIMITED LIABILITY COMPANY IS TO DISSOLVE. - ------------------------------------------------------------------------------------------------------------------------------------ 7. NUMBER OF PAGES ATTACHED, IF ANY: - ------------------------------------------------------------------------------------------------------------------------------------ 8. TYPE OF BUSINESS OF THE LIMITED LIABILITY COMPANY. (FOR INFORMATIONAL PURPOSES ONLY) - ------------------------------------------------------------------------------------------------------------------------------------ 9. IT IS HEREBY DECLARED THAT I AM THE PERSON WHO EXECUTED THIS INSTRUMENT, WHICH EXECUTION IS MY ACT AND DEED _______________________________________________ __________________________________________ SIGNATURE OF ORGANIZER DATE _______________________________________________ TYPE OR PRINT NAME OF ORGANIZER - ------------------------------------------------------------------------------------------------------------------------------------ 10. RETURN TO: + + NAME FIRM ADDRESS CITY/STATE ZIP CODE + + - ------------------------------------------------------------------------------------------------------------------------------------ SEC/STATE FORM LLC-1 (Rev. 04/2003) - FILING FEE $70.00 APPROVED BY SECRETARY OF STATE
EX-3.5 7 ex3-5.txt EXHIBIT 3.5 Exhibit 3.5
- ---------------------------------------------------------------------------------------------------------------------- State of California Secretary of State Kevin Shelley CERTIFICATE OF LIMITED PARTNERSHIP $70.00 filing fee must accompany this form. This Space For Filing Use Only IMPORTANT - Read instructions before completing this form. - ---------------------------------------------------------------------------------------------------------------------- 1. Name of the limited partnership (end the name with the words "Limited Partnership" or the abbreviation "L.P.") - ---------------------------------------------------------------------------------------------------------------------- 2. Street address of principal executive office City and state Zip code - ---------------------------------------------------------------------------------------------------------------------- 3. Street address of California office where records are kept City Zip code - ---------------------------------------------------------------------------------------------------------------------- 4. Complete if limited partnership was formed prior to July 1, 1984 and is in existence on the date this certificate is executed. The original limited partnership certificate was recorded on ___________________________________ with the recorder of _____________________________________ county. File or recordation number____________________________ - ---------------------------------------------------------------------------------------------------------------------- 5. Name the agent for service of process and check the appropriate provision below: ___________________________________________________________________________ which is [ ] an individual residing in California. Proceed to item 6. [ ] a corporation which has filed a certificate pursuant to section 1505. Proceed to item 7. - ---------------------------------------------------------------------------------------------------------------------- 6. If an individual California address of the agent for service of process: Address: City: State: CA Zip code: - ---------------------------------------------------------------------------------------------------------------------- 7. Names and addresses of all general partners: (Attach additional pages, if necessary) A. Name Address: City: State: Zip code: - ---------------------------------------------------------------------------------------------------------------------- B. Name Address: City: State: Zip code: - ---------------------------------------------------------------------------------------------------------------------- 8. Indicate the NUMBER of general partners' signatures required for filing certificates of amendment, restatement, merger, dissolution, continuation and cancellation. - ---------------------------------------------------------------------------------------------------------------------- 9. Other matters to be included in this certificate may be set forth on separate attached pages and are made a part of this certificate. Other matters may include the purpose of business of the limited partnership E.G. Gambling Enterprise. - ---------------------------------------------------------------------------------------------------------------------- 10. Number of pages attached, if any: - ---------------------------------------------------------------------------------------------------------------------- 11. I certify that the statements contained in this document are true and correct to my own knowledge. I declare that I am the person who is executing this instrument, which execution is my act and deed. _______________________________________________________ _______________________________________________ Signature Position or Title Print Name Date _______________________________________________________ _______________________________________________ Signature Position or Title Print Name Date - ---------------------------------------------------------------------------------------------------------------------- SEC/STATE (REV.01/03) FORM LP-1 FILING FEE: $70.00 Approved by Secretary of State - ----------------------------------------------------------------------------------------------------------------------
EX-3.6 8 ex3-6.txt EXHIBIT 3.6 Exhibit 3.6
ARTICLES OF INCORPORATION Form 200 Revised July 1, 2002 Filing fee: $50.00 Deliver to: Colorado Secretary of State Business Division, 1560 Broadway, Suite 200 Denver, CO 80202-5169 This document must be typed or machine printed Copies of filed documents may be obtained at www.sos.state.co.us ABOVE SPACE FOR OFFICE USE ONLY ------------------- Pursuant to ss. 7-102-102, Colorado Revised Statutes (C.R.S.), the individual named below causes these Articles of Incorporation to be delivered to the Colorado Secretary of State for filing, and states as follows: 1. The entity name of the corporation is:_________________________________________________________________________ ___________________________________________________________________________________________________________________ The entity name of a corporation must contain the term "corporation", "incorporated", "company", or "limited", or an abbreviation of any of these terms ss.7-90-601(3)(a), C.R.S. 2. The corporation is authorized to issue: (number) ____________ shares of (class)__________________________ (number) ____________ shares of (class)__________________________ If more classes are authorized, include attachment indicating class(es) and number of shares in each class. 3. The street address of the corporation's initial registered office and the name of its initial registered agent at that office are: Street Address (must be a street or other physical address in Colorado) ___________________________________________________________________________________________________________________ If mail is undeliverable to this address, ALSO include a post office box address:__________________________________ __________________________________________; Registered Agent Name: ________________________________________________ 4. The address of the corporation's initial principal office is:___________________________________________________ 5. The name and address of the incorporator is: Name _______________________________________________________________________________________________________ Address ____________________________________________________________________________________________________ 6. If applicable, these articles are to have a delayed effective date of _________________________________________ (not to exceed 90 days) 7. The (a) name or names, and (b) mailing address or addresses, of any one or more of the individuals who cause this document to be delivered for filing, and to whom the Secretary of State may deliver notice if filing of this document is refused, are: _________________________________________________________________________________________ ___________________________________________________________________________________________________________________ OPTIONAL. The electronic mail and/or Internet address for this entity is/are: e-mail ______________________________ _______________________________________________ Web site __________________________________________________________ The Colorado Secretary of State may contact the following authorized person regarding this document: name ________________________________________ address _____________________________________________________________ voice _____________________________ fax ______________________________ e-mail _____________________________________ Disclaimer: This form, and any related instructions, are not intended to provide legal, business or tax advice, and are offered as a public service without representation or warranty. While this form is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form. Questions should be addressed to the user's attorney.
EX-3.7 9 ex3-7.txt EXHIBIT 3.7 Exhibit 3.7
CERTIFICATE OF LIMITED PARTNERSHIP Form 500 Revised July1, 2002 Filing fee: $50.00 Deliver to: Colorado Secretary of State Business Division, 1560 Broadway, Suite 200 Denver, CO 80202-5169 This document must be typed or machine printed Copies of filed documents may be obtained at www.sos.state.co.us ABOVE SPACE FOR OFFICE USE ONLY ------------------- Pursuant to ss. 7-62-201, Colorado Revised Statutes (C.R.S), the individual named below causes this Certificate of Limited Partnership to be delivered to the Colorado Secretary of State for filing, and states as follows: 1. The name of the Limited Partnership is: ________________________________________________________________________ ________________________________________________________________________________________________________________ 2. The street address of the limited partnership's registered office in Colorado is: ______________________________ ________________________________________________________________________________________________________________ If mail is undeliverable to this address, ALSO include a post office box address: ______________________________ ________________________________________________________________________________________________________________ and the name of the registered agent at such address is ________________________________________________________ ________________________________________________________________________________________________________________ 3. There are at least two (2) partners in the partnership, at least one (1) of whom is a limited partner. 4. The name and business, residence or mailing address of each general partner is: NAME ADDRESS _________________________________________ _____________________________________________________________ _________________________________________ _____________________________________________________________ _________________________________________ _____________________________________________________________ 5. The (a) name or names, and (b) mailing address or addresses, of any one or more of the individuals who cause this document to be delivered for filing, and to whom the Secretary of State may deliver notice if filing of this document is refused, are: _________________________________________________________________________________________ ___________________________________________________________________________________________________________________ OPTIONAL. The electronic mail and/or Internet address for this entity is/are: e-mail ______________________________ _______________________________________________ Web site __________________________________________________________ The Colorado Secretary of State may contact the following authorized person regarding this document: name ________________________________________ address _____________________________________________________________ voice _____________________________ fax ______________________________ e-mail _____________________________________ Disclaimer: This form, and any related instructions, are not intended to provide legal, business or tax advice, and are offered as a public service without representation or warranty. While this form is believed to satisfy minimum legal requirements as of its revision date, compliance with applicable law, as the same may be amended from time to time, remains the responsibility of the user of this form. Questions should be addressed to the user's attorney.
EX-3.8 10 ex3-8.txt EXHIBIT 3.8 Exhibit 3.8 CERTIFICATE OF LIMITED PARTNERSHIP Pursuant to the provisions of the Connecticut Revised Uniform Limited Partnership Act, the undersigned general partners hereby form the limited partnership named below: 1. The name of the limited partnership is ______________________________________________________. 2. The address of the office at which records are required to be kept by Section 34-13b is: _____________________________________________________________________________ _____________________________________________________________________________ 3. The name and address of the agent for service of process if CT Corporation System, One Commercial Plaza, Hartford, Connecticut 06103. 4. The name and business address of each general partner is: Name of General Partner Business Address __________________________ _________________________ _________________________ __________________________ _________________________ _________________________ __________________________ _________________________ _________________________ 5. The latest date upon which the limited partnership is to dissolve is ________________. 6. Any other matters the general partners agree to include are: ______________________ ____________________________________________________________________________. Executed by all general partners, this ___ day of ___________, _____________. (I) (We) hereby declare, under the penalties of false statement that the facts states herein are true. ___________________________________ ___________________________________ ACCEPTANCE OF APPOINTMENT AS STATUTORY AGENT FOR SERVICE OF PROCESS We, CT Corporation System, hereby accept the appointment to serve as statutory agent for service of process in Connecticut for the limited partnership herein named. Date:_____________________ CT Corporation System By:___________________________ -2- EX-3.9 11 ex3-9.txt EXHIBIT 3.9 Exhibit 3.9 CERTIFICATE OF INCORPORATION OF [NAME OF ENTITY] 1. The name of the corporation is _______________________________________. 2. The address of its registered office in the State of Delaware is ______________________________________________________, in the City of ________________________________________________________, County of _______________________________________. The name of its registered agent at such address is _______________________________. 3. The nature of the business or purposes to be conducted or promoted is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware, including, without limitation, ______________________________________________________________________. 4. The total number of shares of stock which the corporation shall have authority to issue is _______________________ and the par value of each such shares is _______________________ amounting in the aggregate to ______________________. 5. The name and mailing address of the incorporator is __________________ ________________________________. 6. The corporation is to have perpetual existence. 7. The corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon stockholders herein are granted subject to this reservation. 8. A director of this corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. I, the undersigned, being the incorporator hereinbefore named, for the purpose of forming a corporation pursuant to this General Corporation Law of the State of Delaware, do make this certificate, hereby declaring and certifying that this is my act and deed and the facts herein stated are true, and accordingly have hereunto set my hand this _____________________ day of __________________, 200_. _________________________________ Name: Incorporator: EX-3.10 12 ex3-10.txt EXHIBIT 3.10 Exhibit 3.10 STATE OF DELAWARE LIMITED LIABILITY COMPANY CERTIFICATE OF FORMATION OF [NAME OF ENTITY] o First: The name of the limited liability company is _____________________. o Second: The address of its registered office in the State of Delaware is ______________________________________. The name of its registered agent at such address is __________________________________. In Witness Whereof, the undersigned has executed this Certificate of Formation of _____________________________ this ____ day of ____________, 200_. By:______________________ Name: EX-3.11 13 ex3-11.txt EXHIBIT 3.11 Exhibit 3.11 CERTIFICATE OF LIMITED PARTNERSHIP OF [NAME OF ENTITY] The undersigned, desiring to form a limited partnership pursuant to the Delaware Revised Uniform Limited Partnership Act, 6 Delaware Code, Chapter 17, do hereby certifies as follows: FIRST: The name of the limited partnership is_______________________ _____________________________. SECOND: The address of its registered office in the State of Delaware is ___________________________________________________________ ________________ in the city of _________________________. The name of the registered agent at such address is ______________ ______________________________________. THIRD: The name and mailing address of each general partner is as follows: ______________________________________________________________ ______________________________________________________________ ______________________________________________________________ IN WITNESS WHEREOF, the undersigned has executed this Certificate of Limited Partnership of __________________________ as of ________________________ _______. GENERAL PARTNER BY:____________________________________ By:____________________________________ Name: Title: EX-3.12 14 ex3-12.txt EXHIBIT 3.12 Exhibit 3.12 ARTICLES OF INCORPORATION In compliance with Chapter 607 and/or Chapter 621, F.S. (Profit) ARTICLE I NAME - ---------------------- The name of the corporation shall be: ARTICLE II PRINCIPAL OFFICE - ---------------------------------- The principal place of business/mailing address is: ARTICLE III PURPOSE - ------------------------- The purpose for which the corporation is organized is: ARTICLE IV SHARES - ------------------------ The number of shares of stock is: ARTICLE V INITIAL OFFICERS/DIRECTORS (optional) - ------------------------------------------------------- The name(s), address(es) and title(s): ARTICLE VI REGISTERED AGENT - ---------------------------------- The name and address of the Incorporator is: ARTICLE VII INCORPORATOR - ------------------------------ The name and address of the Incorporator is: ****************************************************************************** Having been as registered agent to accept service of process for the above stated corporation at the place designated in this certificate, I am familiar with and accept the appointment as registered agent and agree to act in this capacity ______________________________________________ _____________________ Signature/Registered Agent Date ______________________________________________ _____________________ Signature/Incorporator Date EX-3.13 15 ex3-13.txt EXHIBIT 3.13 Exhibit 3.13 ARTICLES OF ORGANIZATION FOR FLORIDA LIMITED LIABILITY COMPANY ARTICLE I - Name The name of the Limited Liability Company is: ARTICLE II - Address: The mailing address and street address of the principal office of the Limited Liability Company is: ARTICLE III - Registered Agent, Registered Office, & Registered Agent's Signature: The name and the Florida street address of the registered agent are: __________________________________________________ Name __________________________________________________ Florida street address (P.O. Box NOT ACCEPTABLE) --- __________________________________________________ City, State, and Zip Having been named as registered agent and to accept service of process for the above stated limited liability company at the place designated in this certificate, I hereby accept the appointment as registered agent and agree to act in this capacity. I further agree to comply with the provisions of all statutes relating to the proper and complete performance of my duties, and I am familiar with and accept the obligations of my position as registered agent as provided for in Chapter 608, F.S. __________________________________________________ Registered Agent's Signature (An additional article must be added if an effective date is requested) __________________________________________________ Signature of a member or an authorized representative of a member. __________________________________________________ (In accordance with section 608.408(3), Florida Statutes, the execution of this document constitutes an affirmation under the penalties of perjury that the facts stated herein are true.) __________________________________________________ Typed or printed name of signee Filing Fees: ------------ $100.00 Filing Fee for Articles of Organization $ 25.00 Designation of Registered Agent $ 30.00 Certified Copy (Optional) $ 5.00 Certificate of Status (Optional) EX-3.14 16 ex3-14.txt EXHIBIT 3.14 Exhibit 3.14 CERTIFICATE OF LIMITED PARTNERSHIP 1.______________________________________________________________________________ (Name of Limited Partnership; must contain a suffix such as "Limited", "Ltd.", or "Limited Partnership") 2.______________________________________________________________________________ (Business address of Limited Partnership) 3.______________________________________________________________________________ (Name of Registered Agent for Service of Process) 4.______________________________________________________________________________ (Florida street address for Registered Agent) 5.______________________________________________________________________________ (Registered Agent must sign here to accept designation as Registered Agent for Service of Process) 6.______________________________________________________________________________ (Mailing Address of the Limited Partnership) 7. The latest date upon which the Limited Partnership is to be dissolved is: __________________________ 8. Name(s) of general partner(s): ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ ________________________________ Under penalties of perjury I (we) declare that I (we) have read the foregoing and know the contents thereof and that the facts stated herein are true and correct Signed this___________day of _____________________________________, _________. Signature of all general partners: ________________________________ ________________________________ General Partner General Partner ________________________________ ________________________________ General Partner General Partner ________________________________ ________________________________ General Partner General Partner AFFIDAVIT OF CAPITAL CONTRIBUTIONS FOR FLORIDA LIMITED PARTNERSHIP The undersigned constituting all of the general partners of ___________________ _______________________________________________________________________________, a Florida Limited Partnership, certify: The amount of capital contributions to date of the limited partners is $_______. The total amount contributed and anticipated to be contributed by the limited partners at this time totals $____________________. Signed this _________ day of __________________________________, ________. FURTHER AFFIANT SAYETH NOT. Under the penalties of perjury I (we) declare that I (we) have read the foregoing and know the contents thereof and that the facts stated herein are true and correct. ________________________________ ________________________________ General Partner General Partner ________________________________ ________________________________ General Partner General Partner ________________________________ ________________________________ General Partner General Partner EX-3.15 17 ex3-15.txt EXHIBIT 3.15 Exhibit 3.15 Form BCA-2.10 ARTICLE OF INCORPORATION - ---------------------------------------- ---------------------------------------------------- --------------------------------- (Rev. Jan. 1999) This space for use by Secretary of State SUBMIT IN DUPLICATE! Jesse White --------------------------------- Secretary of State Department of Business Services This space for use by Springfield, IL 62756 Secretary of State http://www.sos.state.il.us Date - ---------------------------------------- Payment must be made by certified check, cashier's check, Illinois Franchise Tax $ attorney's check, Illinois C.P.A.'s Filing Fee $ check or money order payable to "Secretary of State." Approved: - ---------------------------------------- ---------------------------------------------------- --------------------------------- 1. CORPORATE NAME: ______________________________________________________________________________________________________ _______________________________________________________________________________________________________________________________ (The corporate name must contain the word "corporation", "company," "incorporated," "limited" or an abbreviation thereof.) - ------------------------------------------------------------------------------------------------------------------------------- 2. Initial Registered Agent: _________________________________________________________________________________ First Name Middle Initial Last Name _________________________________________________________________________________ Number Street Suite # _________________________________________________________________________________ City County Zip Code - ------------------------------------------------------------------------------------------------------------------------------- 3. Purpose or purposes for which the corporation is organized: (If not sufficient space to cover this point, add one or more sheets of this size.) - ------------------------------------------------------------------------------------------------------------------------------- 4. Paragraph 1: Authorized Shares, Issued Shares and Consideration Received: Par Value Number of Shares Number of shares Consideration to be Class per Share Authorized Proposed to be Issued Received Therefor - ------------------------------------------------------------------------------------------------------------------------------- $ $ - ------------------------------------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------------------------------------- TOTAL = $ Paragraph 2: The preferences, qualifications, limitations, restrictions and special or relative rights in respect of the shares of each class are: (If not sufficient space to cover this point, add one or more sheets of this size.) - ------------------------------------------------------------------------------------------------------------------------------- (over) 5. OPTIONAL: (a) Number of directors constituting the initial board of directors of the corporation: _______________. (b) Names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders or until their successors are elected and qualify: Name Residential Address City, State, Zip ---------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------------------------------------- 6. OPTIONAL (a) It is estimated that the value of all property to be owned by the corporation for the following year wherever located will be: $_____________________________ (b) It is estimated that the value of the property to be located within the State of Illinois during the following year will be: $_____________________________ (c) It is estimated that the gross amount of business that will be transacted by the corporation during the following year will be: $_____________________________ (d) It is estimated that the gross amount of business that will be transacted from places of business in the State of Illinois during the following year will be: $_____________________________ - ------------------------------------------------------------------------------------------------------------------------------- 7. OPTIONAL: OTHER PROVISIONS Attach a separate sheet of this size for any other provision to be included in the Articles of Incorporation, e.g., authorizing preemptive rights, denying cumulative voting, regulating internal affairs, voting majority requirements, fixing a duration other than perpetual, etc. - ------------------------------------------------------------------------------------------------------------------------------- 8. NAME(S) & ADDRESS(ES) OF INCORPORATOR(S) The undersigned incorporator(s) hereby declare(s), under penalties of perjury, that the statements made in the foregoing Articles of Incorporation are true. Dated _____________________________, ____ (Month & Day Year Signature and Name Address 1. _______________________________________________________ 1. ________________________________________________________ Signature Street _______________________________________________________ ________________________________________________________ (Type or Print Name) City/Town State ZIP Code 2. _______________________________________________________ 2. ________________________________________________________ Signature Street _______________________________________________________ ________________________________________________________ (Type or Print Name) City/Town State ZIP Code 3. _______________________________________________________ 3. ________________________________________________________ Signature Street _______________________________________________________ ________________________________________________________ (Type or Print Name) City/Town State ZIP Code (Signatures must be in BLACK INK on original document. Carbon copy, photocopy or rubber stamp signatures may only be used on conformed copies.) NOTE: If a corporation acts as incorporator, the name of the corporation and the state of incorporation shall be shown and the execution shall be by its president or vice president and verified by him, and attested by its secretary or assistant secretary. - ------------------------------------------------------------------------------------------------------------------------------- FEE SCHEDULE o The initial franchise tax is assessed at the rate of 15/100 of 1 percent ($1.50 per $1,000) on the paid-in capital represented in this state, with a minimum of $25. o The filing fee is $75. o The minimum total due (franchise tax + filing fee) is $100. (Applies when the Consideration to be Received as set forth in Item 4 does not exceed $16,667) o The Department of Business Services in Springfield will provide assistance in calculating the total fees if necessary. Illinois Secretary of State Springfield, IL 62756 Department of Business Services Telephone (217) 782-9522 or 782-9523
EX-3.16 18 ex3-16.txt EXHIBIT 3.16 Exhibit 3.16
Illinois This space for use by Form LLC-5.5 Limited Liability Company Act Secretary of State January 2000 Articles of Organization - ----------------------------------------------------------------------------------------- Jesse White Secretary of State SUBMIT IN DUPLICATE Department of Business Services Must be typewritten Limited Liability Company Division Room 359, Howlett Building ---------------------------------------- Springfield, IL 62756 This space for use by Secretary of State http://www.sos.state.il.us - ------------------------------------------ Date Payment must be made by certified check, Assigned File # cashier's check, Illinois attorney's check, Filing Fee $400.00 Illinois C.P.A.'s check or money order Approved: payable to "Secretary of State." - ----------------------------------------------------------------------------------------------------------------------------- 1. LIMITED LIABILITY COMPANY NAME: _______________________________________________________________________________________ _______________________________________________________________________________________________________________________ (The LLC name must contain the words limited liability company, L.L.C. or LLC and cannot contain the terms corporation, corp., incorporated, inc., ltd., co., limited partnership, or L.P.) 2. If transacting business under an assumed name, complete and attach Form LLC-1.20. 3. The address of its principal place of business: (Post office box alone and c/o are unacceptable). _______________________________________________________________________________________________________________________ ______________________________________________________________________________________________________________________. 4. The Articles of Organization are effective on: (Check one) (a) _____ the filing date, or (b) _____ another date later than but not more than 60 days subsequent to the filing date: _________________________ (month, day, year) 5. The registered agent's name and registered office address is: Registered Agent: __________________________________________________________________________________________ First Name Middle Initial Last Name Registered Office: __________________________________________________________________________________________ (P.O. Box and Number Street Suite # c/o are unacceptable) __________________________________________________________________________________________ City County Zip Code 6. Purpose or purposes for which the LLC is organized: Include the business code # (IRS Form 1056). (If not sufficient space to cover this point, add one or more sheets of this size.) "The transaction of any or all lawful business for which limited liability companies may be organized under this Act." 7. The latest date, if any, upon which the company is to dissolve ______________________________. (month, day, year) Any other events of dissolution enumerated on an attachment. (Optional)
8. Other provisions for the regulation of the internal affairs of the LLC per section 5-5(a)(8) included as attachment: If yes, state the provisions(s) from the ILLCA. [ ] Yes [ ] No 9. (a) Management is by manager(s): [ ] Yes [ ] No If yes, list names and business addresses. (b) Management is vested in the member(s): [ ] Yes [ ] No If yes, list names and addresses. 10. I affirm, under penalties of perjury, having authority to sign hereto, that these articles of organization are to the best of my knowledge and belief, true, correct and complete. Dated _____________________________________, __________ (Month/Day) (Year) Signature(s) and Name(s) of Organizer(s) Business Address(es) 1.__________________________________________________________ 1.__________________________________________________________ Signature Number Street __________________________________________________________ __________________________________________________________ (Type or Print Name and title) City/Town __________________________________________________________ __________________________________________________________ (Name if a corporation or other entity) State ZIP Code 2.__________________________________________________________ 2.__________________________________________________________ Signature Number Street __________________________________________________________ __________________________________________________________ (Type or Print Name and Title) City/Town __________________________________________________________ __________________________________________________________ (Name if a corporation or other entity) State ZIP Code 3.__________________________________________________________ 3.__________________________________________________________ Signature Number Street __________________________________________________________ __________________________________________________________ (Type or print name and title) City/Town __________________________________________________________ __________________________________________________________ (Name if a corporation or other entity) State ZIP Code (Signatures must be in ink on original document. Carbon copy, photocopy or rubber stamp signatures may only be used on conformed copies.)
EX-3.17 19 ex3-17.txt EXHIBIT 3.17 Exhibit 3.17
- ------------------------- FORM LP 201 (Rev. Jan. 1999) Filing Fee $75 SUBMIT IN DUPLICATE! File# Assigned by Secretary of State Return to: Department of Business Services Limited Partnership Division Room 357, Howlett Building Springfield, IL 62756 Telephone: (217) 785-8960 http://www.sos.state.il.us. JESSE WHITE All correspondence regarding SECRETARY OF STATE this filing will be sent to the STATE OF ILLINOIS registered agent of the limited partnership unless a self- CERTIFICATE OF LIMITED PARTNERSHIP addressed envelope with pre- (Illinois limited partnership) paid postage is included. (Please type or print clearly) - ------------------------- 1. Limited partnership's name: _________________________________________________________________________________________________ 2. The address, including county, of the office at which the records required by Section 104 are to be kept is: (P.O. Box alone and c/o are unacceptable) ___________________________________________________________________________________________________ __________________________________________________________________________________________________________________________________. 3. Federal Employer Identification Number (F.E.I.N.): __________________________________________________________________________. 4. This certificate of limited partnership is effective on: (Check one) a) _______ the filing date, or b) another date later than but not more than 60 days subsequent to the filing date: ________________________________. 5. The limited partnership's registered agent's name and registered agent's name and registered office address is: Registered agent: _________________________________________________________________________________________________ First name Middle name Last name Registered Office: _________________________________________________________________________________________________ (P.O. Box alone and Number Street Suite # c/o/ are unacceptable) ________________________________________________________________________________________________. City County ZIP Code 6. The limited partnership's purpose(s) is: ____________________________________________________________________________________ _____________________________________________________________________________________________________________________________ ____________________________________________________________________________________________________________________________. IRS Business Code Number is: ________________________________________________________________________________________________ 7. Dissolution date is: [ ] Perpetual or ________________________________________________________________________________ (month, day, year)
FORM LP 201 (Rev. Jan. 1999) 8. The total aggregate dollar amount of cash, property and services contributed by all partners is _____________________________________________________________________________________________________________________________ 9. A brief statement of the partners' membership termination and distribution rights: _____________________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________________ NAME(S) BUSINESS ADDRESS(ES) OF GENERAL PARTNER(S) The undersigned affirms, under penalties of perjury, that the facts stated herein are true. All general partners are required to sign the certificate of limited partnership. SIGNATURE AND NAME BUSINESS ADDRESS 1. Signature ___________________________________________ Number/Street _____________________________________________ Type or print name and title _________________________________ City/town _________________________________________________ ______________________________________________________________ ___________________________________________________________ Name of General Partner if a corporation or other entity _________________________________________________ State ____________________________ ZIP Code _______________ 2. Signature ___________________________________________ Number/Street _____________________________________________ Type or print name and title _________________________________ City/town _________________________________________________ ______________________________________________________________ ___________________________________________________________ Name of General Partner if a corporation or other entity _________________________________________________ State ____________________________ ZIP Code _______________ 3. Signature ___________________________________________ Number/Street _____________________________________________ Type or print name and title _________________________________ City/town _________________________________________________ ______________________________________________________________ ___________________________________________________________ Name of General Partner if a corporation or other entity _________________________________________________ State ____________________________ ZIP Code _______________ (Signatures must be BLACK INK on an original document. Carbon copy, photocopy or rubber stamp signatures may only be used on conformed copies.) FORMS OF PAYMENT: Payment must be made by certified check, cashier's check. Illinois attorney's check, Illinois C.P.A.'s check or money order, payable to "Secretary of State." DO NOT SEND CASH!
EX-3.18 20 ex3-18.txt EXHIBIT 3.18 Exhibit 3.18 ARTICLES OF ORGANIZATION The undersigned, with the intention of creating a Maryland Limited Liability Company files the following Articles of Organization: (1) The name of the Limited Liability Company is:_____________________________ _______________________________________________________________________________ _______________________________________________________________________________. (2) The purpose for which the Limited Liability Company is filed is as follows: _______________________________________________________________________________ _______________________________________________________________________________ (3) The address of the Limited Liability Company in Maryland is_______________ _______________________________________________________________________________. (4) The resident agent of the Limited Liability Company in Maryland is_________ _______________________________________________________________________________ whole address is_______________________________________________________________ _______________________________________________________________________________. (5)_________________________________ (6)_________________________________ Resident Agent _________________________________ _________________________________ Authorized Persons(s) Filing party's return address: (7)_________________________________ _________________________________ _________________________________ _________________________________ EX-3.19 21 ex3-19.txt EXHIBIT 3.19 Exhibit 3.19 STATE OF MARYLAND STATE DEPARTMENT OF ASSESSMENTS AND TAXATION CERTIFICATE OF LIMITED PARTNERSHIP The undersigned general partners, for the purpose of forming a Limited Partnership, pursuant to the provisions of Section 10-201 of the Corporation and Associations Article of the Annotated Code of Maryland, to do interstate or intrastate business as domestic limited partnership in the State of Maryland, hereby certify the following: A. The name of the Limited Partnership is ________________________________________________________________________ B. The address of the principal office in Maryland is ________________________________________________________________________ ________________________________________________________________________ C. The name and address of each general partner: NAME OF GENERAL PARTNER ADDRESS ____________________________________ __________________________________ ____________________________________ __________________________________ ____________________________________ __________________________________ ____________________________________ __________________________________ D. The name and address of its resident agent in Maryland is THE CORPORATION TRUST INCORPORATED, 300 East Lombard Street, Baltimore, Maryland 21202. E. The latest date upon which the limited partnership is to dissolve is ____________, _____, or if left blank, the existence is perpetual subject to the events of dissolution in Section 10-801, Corporations and Associated, the Annotated Code of Maryland. F. Additional matters to be included in the certificate of limited partnership: ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ Dated:________________, _____ ______________________________________ ______________________________________ ______________________________________ (Each general partner must execute this document; name(s) must be typed underneath signature(s).) I hereby consent to my designation in this document as resident agent for this limited partnership. THE CORPORATION TRUST INCORPORATED _______________________________ Resident Agent EX-3.20 22 ex3-20.txt EXHIBIT 3.20 Exhibit 3.20 DOMESTIC LIMITED LIABILITY COMPANY CERTIFICATE OF ORGANIZATION FEDERAL EMPLOYER IDENTIFICATION NO.____________________________ 1. The name of the limited liability company:________________________________ __________________________________________________________________________ 2. The street address of the office in Massachusetts at which the limited liability company's records will be maintained: __________________________________________________________________________ __________________________________________________________________________ 3a. The general character of its business is:_________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ 3b. If the limited liability company is organized to render a professional service, the service to be rendered, and the name and address of each member or manager who will render a service in Massachusetts are as follows:__________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ The limited liability company will abide by and be subject to any conditions or limitations established by any regulating board, including the provisions of liability insurance required by Chapter 156C, Section 65. This Certificate or Organization is accompanied by a certificate from the applicable regulating board certifying that each member or manager who will render a professional service in Massachusetts is duly licensed. 4. The latest date of dissolution, if any:___________________________________ __________________________________________________________________________ 5. The name and business address of the agent for service of process required to be maintained by M.G.L. Chapter 156C, Section 5 is: CT Corporation System, 101 Federal Street, Boston, Massachusetts 02110 __________________________________________________________________________ 6. The name and business address, if different from the office location, of each manager is as follows: NAME BUSINESS ADDRESS ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ 7. The name and business address, if different from the office location, of any person in addition to the manager, who is authorized to execute documents to be filed with the Division is as follows: NAME BUSINESS ADDRESS ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ ____________________________________ 8. The name and business address, if different from the office location, of the person, if any, authorized to execute, acknowledge, deliver and record any recordable instrument purporting to affect an interest in real property is:_______________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ 9. Other matters the authorized persons have determined to include are as follows:__________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ DATED ___________________________ _______________________________________ (Name of Limited Liability Company) By:____________________________________ _______________________________________ (Print Name) EX-3.21 23 ex3-21.txt EXHIBIT 3.21 Exhibit 3.21 CERTIFICATE OF LIMITED PARTNERSHIP Federal Employer Identification No._____________________ 1. The name of the limited partnership is:_____________________ 2. The general character of its business is:___________________ 3. The address of the office at which it will keep the records required to be kept by Sec. 5 of the Limited Partnership law is: ________________________ 4. The name and address of the agent for service of process is C T Corporation System, 101 Federal Street, Boston, Massachusetts 02110. 5. The name and business address of each general partner is: ________________________ 6. The latest date upon which it is to dissolve is:_______________ 7. Any other matters the general partners determine to include are: ________________________ Dated__________________________ _______________________________ _______________________________ _______________________________ EX-3.22 24 ex3-22.txt EXHIBIT 3.22 Exhibit 3.22
- --------------------------------------------------------------------------------------------------------------------- MICHIGAN DEPARTMENT OF CONSUMER & INDUSTRY SERVICES BUREAU OF COMMERCIAL SERVICES - --------------------------------------------------------------------------------------------------------------------- Date Received (FOR BUREAU USE ONLY) - ------------------------- This document is effective on the date filed, unless a subsequent effective date within 90 days after received date is stated in the document. - ---------------------------------------------------------------------------------------- Name _________________________________________________________________________ Address ______________________________________________________________________ City ___________________________ State _________________________________ Zip Code ______ Effective Date: - --------------------------------------------------------------------------------------------------------------------- Document will be returned to the name and address you enter above. If left blank documents will be mailed to the registered office. ------------------------------------- ------------------------------------- ARTICLES OF INCORPORATION For use by Domestic Profit Corporations (Please read information and instructions on the last page) Pursuant to the provisions of Act 284, Public Acts of 1972, the undersigned corporation executes the following Articles: ARTICLE I - --------------------------------------------------------------------------------------------------------------------- The name of the corporation is: - --------------------------------------------------------------------------------------------------------------------- ARTICLE II - --------------------------------------------------------------------------------------------------------------------- The purpose or purposes for which the corporation is formed is to engage in any activity within the purposes for which corporations may be formed under the Business Corporation Act of Michigan. - --------------------------------------------------------------------------------------------------------------------- ARTICLE III - --------------------------------------------------------------------------------------------------------------------- The total authorized shares: 1. Common Shares _________________________________________________________________________________________ Preferred Shares ______________________________________________________________________________________ 2. A statement of all or any of the relative rights, preferences and limitations of the shares of each class is as follows: - --------------------------------------------------------------------------------------------------------------------- ARTICLE IV - --------------------------------------------------------------------------------------------------------------------- 1. The address of the registered office is: __________________________________________________________________________________, Michigan __________________ (Street Address) (City) (ZIP Code) 2. The mailing address of the registered office, if different than above: __________________________________________________________________________________, Michigan ____________________ (Street Address or P.O. Box) (City) (ZIP Code) 3. The name of the resident agent at the registered office is: ____________________________________________________ - ---------------------------------------------------------------------------------------------------------------------
ARTICLE V - --------------------------------------------------------------------------------------------------------------------- The name(s) and address(es) of the incorporator(s) is(are) as follows: Name Residence or Business Address _____________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________ - --------------------------------------------------------------------------------------------------------------------- ARTICLE VI (Optional, Delete if not applicable) - --------------------------------------------------------------------------------------------------------------------- When a compromise or arrangement or a plan of reorganization of this corporation is proposed between this corporation and its credits or any class of them or between this corporation and its shareholders or any class of them, a court of equity jurisdiction within the state, on application of this corporation or of a creditor or shareholder thereof, or an application of a receiver appointed for the corporation, may order a meeting of the creditors or class of creditors or of the shareholders or class of shareholders to be affected by the proposed compromise or arrangement or reorganization, to be summoned in such manner as the court directs. If a majority in number representing 3/4 in value of the creditors or class of creditors, or of the shareholders or class of shareholders to be affected by the proposed compromise or arrangement or a reorganization, agree to a compromise or arrangement or a reorganization of this corporation as a consequence of the compromise or arrangement, the compromise or arrangement and the reorganization, if sanctioned by the court to which the application has been made, shall be binding on all the creditors or class of creditors, or on all the shareholders or class of shareholders and also on this corporation. - --------------------------------------------------------------------------------------------------------------------- ARTICLE VII (Optional, Delete if not applicable) - --------------------------------------------------------------------------------------------------------------------- Any action required or permitted by the Act to be taken at an annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if consents in writing, setting forth the action so taken , are signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote on the action were present and voted. A written consent shall bear the date of signature of the shareholder who signs the consent. Written consents are not effective to take corporation action unless within 60 days after the record date for determining shareholders entitled to express consent to or to dissent from a proposed without a meeting, written consents dated not more than 10 days before the record date and signed by a sufficient number of shareholders to take the action are delivered to the corporation. Delivery shall be in the corporation's registered office, its principal place of business, or any officer or agent of the corporation having custody of the minutes of the proceedings of its shareholders. Delivery made to a corporation's registered office its principal place of business or any officer or agent of the corporation having custody of the minutes of the proceedings of its shareholders. Delivery made to a corporation's registered office and shall be by hand or by certified or registered receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to shareholders who would have been entitled to notice of the shareholder meeting if the action had been taken at a meeting and who have not consented to the action in writing. An electronic transmission consenting to an action must comply with Section 407(3). - ---------------------------------------------------------------------------------------------------------------------
The space below for additional Articles or for continuation of previous Articles. Please identify any Article being continued or added. Attach additional pages if needed. I, (We), the incorporator(s) sign my (our) name(s) this _______________ day of _________________________, ___________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________
EX-3.23 25 ex3-23.txt EXHIBIT 3.23 Exhibit 3.23
- ------------------------------------------------------------------------------------------------------------------------------------ MICHIGAN DEPARTMENT OF CONSUMER & INDUSTRY SERVICES BUREAU OF COMMERCIAL SERVICES - ------------------------------------------------------------------------------------------------------------------------------------ Date Received (FOR BUREAU USE ONLY) - ------------------------- This document is effective on the date filed, unless a subsequent effective date within 90 days after received date is stated in the document. - ---------------------------------------------------------------------------------------- Name _________________________________________________________________________ Address ______________________________________________________________________ City ___________________________ State _________________________________ Zip Code ______ Effective Date: - ------------------------------------------------------------------------------------------------------------------------------------ Document will be returned to the name and address you enter above. If left blank documents will be mailed to the registered office. ARTICLES OF ORGANIZATION --------------------------------------------------- For use by Domestic Limited Liability Companies B --------------------------------------------------- (Please read information and instructions on last page) Pursuant to the provisions of Act 23, Public Acts of 1993, the undersigned execute the following Articles: ARTICLE I - ------------------------------------------------------------------------------------------------------------------------------------ The name of the limited liability company is _____________________________________________________________________________________ - ------------------------------------------------------------------------------------------------------------------------------------ ARTICLE II - ------------------------------------------------------------------------------------------------------------------------------------ The purpose or purposes for which the limited liability company is formed is to engage in any activity within the purposes for which a limited liability company may be formed under the Limited Liability Company Act of Michigan. - ------------------------------------------------------------------------------------------------------------------------------------ ARTICLE III - ------------------------------------------------------------------------------------------------------------------------------------ The duration of the limited liability company if other than perpetual is: _______________________________________________________ - ------------------------------------------------------------------------------------------------------------------------------------ ARTICLE IV - ------------------------------------------------------------------------------------------------------------------------------------ 1. The street address of the location of the registered office is: _________________________________________________________________________________, Michigan ______________________________________ (Street Address) (City) (Zip Code) 2. The mailing address of the registered office if different than above: _________________________________________________________________________________, Michigan ______________________________________ (Street Address or P.O. Box) (City) (Zip Code) 3. The name of the resident agent at the registered office is: _________________________________________________________________ - ------------------------------------------------------------------------------------------------------------------------------------ ARTICLE V (Insert any desired additional provision authorized by the Act; attach additional pages if needed.) - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Signed this __________ day of ____________________ , __________ By ____________________________________________________________ (Signature) _______________________________________________________________ (Type or Print Name)
EX-3.24 26 ex3-24.txt EXHIBIT 3.24 Exhibit 3.24
- ---------------------------------------------------------------------------------------------------------------------------- MICHIGAN DEPARTMENT OF CONSUMER & INDUSTRY SERVICES BUREAU OF COMMERCIAL SERVICES - ---------------------------------------------------------------------------------------------------------------------------- Date Received (FOR BUREAU USE ONLY) - ------------------------- This document is effective on the date filed, unless a subsequent effective date within 90 days after received date is stated in the document. - ---------------------------------------------------------------------------------------- Name _________________________________________________________________________ Address ______________________________________________________________________ City ___________________________ State _________________________________ Zip Code ______ Effective Date: - ---------------------------------------------------------------------------------------------------------------------------- Document will be returned to the name and address you enter above. If left blank documents will be mailed to the registered office. ----------------------------------- L CERTIFICATE OF LIMITED PARTNERSHIP ----------------------------------- For Use by Domestic Limited Partnerships (Please read information and instructions on the last page) (Pursuant to the provisions of Act 213, Public Acts of 1982, the undersigned person(s) execute the following Certificate: Section 1 - ---------------------------------------------------------------------------------------------------------------------------- The name of the limited partnership is: - ---------------------------------------------------------------------------------------------------------------------------- Section 2 - ---------------------------------------------------------------------------------------------------------------------------- The general character of its business is: - ---------------------------------------------------------------------------------------------------------------------------- Section 3 - ---------------------------------------------------------------------------------------------------------------------------- a. The address of the office at which the limited partnership records are kept is: b. The name of the agent for service of process is: The Corporation Company c. The address of the agent for service of process is: c/o the Corporation Company, 30600, Telegraph Road, Bingham Farms, Michigan 48025 - ---------------------------------------------------------------------------------------------------------------------------- Section 4 - ---------------------------------------------------------------------------------------------------------------------------- The power of a limited partner to grant the right to become a limited partner to an assignee of any part of the partnership interests, and the terms and conditions of the power, are as follows: - ----------------------------------------------------------------------------------------------------------------------------
Section 5 - ---------------------------------------------------------------------------------------------------------------------------- a. Describe the times or events when a general partner may terminate membership in the limited partnership, and the terms and conditions of the termination. b. Describe the times or events when a limited partner may terminate membership in the limited partnership. Include the amount or method of determining any distribution the limited partner is entitled to receive upon termination of their membership. - ---------------------------------------------------------------------------------------------------------------------------- Section 6 - ---------------------------------------------------------------------------------------------------------------------------- The right of the limited partner to receive distributions of property, including cash, from the limited partnership, other than indicated in 5(b), is: - ---------------------------------------------------------------------------------------------------------------------------- Section 7 - ---------------------------------------------------------------------------------------------------------------------------- The right of the limited partner to receive, or a general partner to make to a limited partner, distributions of property, which include a return of all or any part of the limited partner's contribution, other than indicated in 5(b), is: - ----------------------------------------------------------------------------------------------------------------------------
Section 8 - ---------------------------------------------------------------------------------------------------------------------------- The times or events at which the limited partnership is to be dissolved and its affairs wound up are: - ---------------------------------------------------------------------------------------------------------------------------- Section 9 - ---------------------------------------------------------------------------------------------------------------------------- The right of the remaining general partner(s) to continue the business upon the event of withdrawal of a general partner is: - ---------------------------------------------------------------------------------------------------------------------------- Section 10 - ---------------------------------------------------------------------------------------------------------------------------- Enter any other matters the partners may desire to include. If additional space is required attach a supplement. Attached are _______ page(s): - ---------------------------------------------------------------------------------------------------------------------------- Section 11 - ---------------------------------------------------------------------------------------------------------------------------- Complete one section for each partner (general and limited). General partners must be listed first followed by limited partners. Item 1 - The type of partner must be either general or limited. Item 2 - Partner names of individuals must appear in the last name, first name, middle initial sequence. Partner names of trusts should be the trust name excluding the name of the trustee or trustees. Item 3 - Indicate the business or residence address of the partner. The address should include the street number and name, city, state, and ZIP code. ITEMS 4 & 5 - LIMITED PARTNERS ONLY - ONE OR BOTH MUST BE COMPLETED Item 4 - If applicable, indicate the amount of cash previously contributed. If contributions have been made in the form of property or services, indicate the agreed dollar value of the contribution in the "other $_____" space and complete Item 6. Item 5 -If applicable, indicate the amount of cash to be contributed in the future and complete Item 7. If there are future contributions in the form of property or services, indicate the agreed dollar value of the contribution in the "other $_____" pace and complete Items 6 and 7. Item 8 -This Certificate must be signed and dated by all partners (general and limited) named in the Certificate. A partner may sign by attorney in fact. - ----------------------------------------------------------------------------------------------------------------------------
Section 11 - -------------------------------------------------------------------------------------------------------------------------- 1. Type of Partner [ ] General 2. Partner Name (see instructions for Section 11, Item 2) [ ] Limited - -------------------------------------------------------------------------------------------------------------------------- 3. Address (No., Street, City, State, ZIP Code) - -------------------------------------------------------------------------------------------------------------------------- 4. Contributions Previously Made (Limited Partners Only) 5. Future Contributions to be Made (Limited Partners Only) Cash $__________ Other $__________ Cash $__________ Other $__________ - -------------------------------------------------------------------------------------------------------------------------- 6. Description of Contributions Other than Cash: (Include all property or services contributed or to be contributed) - -------------------------------------------------------------------------------------------------------------------------- 7. Times or Events Requiring Future Contributions: (Cash Property or Services) - -------------------------------------------------------------------------------------------------------------------------- 8. Signature 9. Date - -------------------------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------------------------- 1. Type of Partner [ ] General 2. Partner Name (see instructions for Section 11, Item 2) [ ] Limited - -------------------------------------------------------------------------------------------------------------------------- 3. Address (No., Street, City, State, ZIP Code) - -------------------------------------------------------------------------------------------------------------------------- 4. Contributions Previously Made (Limited Partners Only) 5. Future Contributions to be Made (Limited Partners Only) Cash $__________ Other $__________ Cash $__________ Other $__________ - -------------------------------------------------------------------------------------------------------------------------- 6. Description of Contributions Other than Cash: (Include all property or services contributed or to be contributed) - -------------------------------------------------------------------------------------------------------------------------- 7. Times or Events Requiring Future Contributions: (Cash Property or Services) - -------------------------------------------------------------------------------------------------------------------------- 8. Signature 9. Date - -------------------------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------------------------- 1. Type of Partner [ ] General 2. Partner Name (see instructions for Section 11, Item 2) [ ] Limited - -------------------------------------------------------------------------------------------------------------------------- 3. Address (No., Street, City, State, ZIP Code) - -------------------------------------------------------------------------------------------------------------------------- 4. Contributions Previously Made (Limited Partners Only) 5. Future Contributions to be Made (Limited Partners Only) Cash $__________ Other $__________ Cash $__________ Other $__________ - -------------------------------------------------------------------------------------------------------------------------- 6. Description of Contributions Other than Cash: (Include all property or services contributed or to be contributed) - -------------------------------------------------------------------------------------------------------------------------- 7. Times or Events Requiring Future Contributions: (Cash Property or Services) - -------------------------------------------------------------------------------------------------------------------------- 8. Signature 9. Date - --------------------------------------------------------------------------------------------------------------------------
Section 11 Continued - -------------------------------------------------------------------------------------------------------------------------- 1. Type of Partner [ ] General 2. Partner Name (see instructions for Section 11, Item 2) [ ] Limited - -------------------------------------------------------------------------------------------------------------------------- 3. Address (No., Street, City, State, ZIP Code) - -------------------------------------------------------------------------------------------------------------------------- 4. Contributions Previously Made (Limited Partners Only) 5. Future Contributions to be Made (Limited Partners Only) Cash $__________ Other $__________ Cash $__________ Other $__________ - -------------------------------------------------------------------------------------------------------------------------- 6. Description of Contributions Other than Cash: (Include all property or services contributed or to be contributed) - -------------------------------------------------------------------------------------------------------------------------- 7. Times or Events Requiring Future Contributions: (Cash Property or Services) - -------------------------------------------------------------------------------------------------------------------------- 8. Signature 9. Date - -------------------------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------------------------- 1. Type of Partner [ ] General 2. Partner Name (see instructions for Section 11, Item 2) [ ] Limited - -------------------------------------------------------------------------------------------------------------------------- 3. Address (No., Street, City, State, ZIP Code) - -------------------------------------------------------------------------------------------------------------------------- 4. Contributions Previously Made (Limited Partners Only) 5. Future Contributions to be Made (Limited Partners Only) Cash $__________ Other $__________ Cash $__________ Other $__________ - -------------------------------------------------------------------------------------------------------------------------- 6. Description of Contributions Other than Cash: (Include all property or services contributed or to be contributed) - -------------------------------------------------------------------------------------------------------------------------- 7. Times or Events Requiring Future Contributions: (Cash Property or Services) - -------------------------------------------------------------------------------------------------------------------------- 8. Signature 9. Date - -------------------------------------------------------------------------------------------------------------------------- - -------------------------------------------------------------------------------------------------------------------------- 1. Type of Partner [ ] General 2. Partner Name (see instructions for Section 11, Item 2) [ ] Limited - -------------------------------------------------------------------------------------------------------------------------- 3. Address (No., Street, City, State, ZIP Code) - -------------------------------------------------------------------------------------------------------------------------- 4. Contributions Previously Made (Limited Partners Only) 5. Future Contributions to be Made (Limited Partners Only) Cash $__________ Other $__________ Cash $__________ Other $__________ - -------------------------------------------------------------------------------------------------------------------------- 6. Description of Contributions Other than Cash: (Include all property or services contributed or to be contributed) - -------------------------------------------------------------------------------------------------------------------------- 7. Times or Events Requiring Future Contributions: (Cash Property or Services) - -------------------------------------------------------------------------------------------------------------------------- 8. Signature 9. Date - --------------------------------------------------------------------------------------------------------------------------
SUPPLEMENT O Page ____ of ____ AUTHORIZED UNDER P.A. 213 OF 1982 Limited Partnership Name __________________________________________________________________________________________ Supplement to: (check one) [ ] Certificate of Limited Partnership [ ] Restated Certificate of Limited Partnership [ ] Amendment to Certificate of Limited Partnership [ ] Certificate of Cancellation [ ] Certificate of Change [ ] Supplement P Each item shown on this supplement must be identified. Indicate the section or item number of the document checked above that is being continued or supplemented. - --------------------------------------------------------------------------------------------------------------------
EX-3.25 27 ex3-25.txt EXHIBIT 3.25 Exhibit 3.25 DEAN HELLER =========================================== Secretary of State Office Use Only: Articles of (State Seal) 202 North Carson Street Incorporation Carson City, Nevada (PURSUANT TO NRS 78) 89701-4201 (775) 684 5708 =========================================== ____________________________________________________________________________________________________________________________________ Important: Read attached instructions before completing form. - ------------------------------------- ---------------------------------------------------------------------------------------------- 1. Name of Corporation: - ------------------------------------- ---------------------------------------------------------------------------------------------- 2. Resident Agent Name and Street Address: ______________________________________________________________________________________________ (must be a Nevada address Name where process may be served) ______________________________________________________________________, NEVADA________________ Street Address City Zip Code _______________________________________________________________________, ________ __________ Optional Mailing Address City State Zip Code - ------------------------------------- ---------------------------------------------------------------------------------------------- 3. Shares: (number of share corporation Number of shares Number of shares authorized to issue) with par value: ____________ Par value: $____________ without par value: __________________ - ------------------------------------- ---------------------------------------------------------------------------------------------- 4. Names, Addresses, Number of Board of Directors/ Trustees; The First Board of Directors/Trustees shall consist of _______________ members whose names and address are as follows: 1. _______________________________________________________________________, NEVADA___________ Name ______________________________________________________________________________________________ Street Address City Zip Code 2. _______________________________________________________________________, NEVADA___________ Name ______________________________________________________________________________________________ Street Address City Zip Code 3. _______________________________________________________________________, NEVADA___________ Name ______________________________________________________________________________________________ Street Address City Zip Code 4. _______________________________________________________________________, NEVADA___________ Name ______________________________________________________________________________________________ Street Address City Zip Code - ------------------------------------- ---------------------------------------------------------------------------------------------- 5. Purpose: (optional - see instructions) The purpose of this Corporation shall be: - ------------------------------------- ---------------------------------------------------------------------------------------------- 6. Other Matters: (see instructions) Number of additional pages attached: __________ - ------------------------------------- ---------------------------------------------------------------------------------------------- 7. Names, Addresses and Signatures of Incorporators: (attach additional pages if there _____________________________________________ ______________________________________________ are more than 2 incorporators). Name Signature ________________________________________________________________________________, ____________ Address City State Zip Code _____________________________________________ ______________________________________________ Name Signature ________________________________________________________________________________, ____________ Address City State Zip Code - ------------------------------------- ---------------------------------------------------------------------------------------------- 8. Certificate of Acceptance of Appointment of Resident Agent: I hereby accept appointment as Resident Agent for the above named corporation. ________________________________________________________________________ _____________________ Authorized Signature of R.A. or On Behalf of R.A. Company Date - ------------------------------------- ---------------------------------------------------------------------------------------------- This form must be accompanied by appropriate fees. See attached fee schedule Nevada Secretary of State Form CORPART1999.01 Revised on: 12/19/02
EX-3.26 28 ex3-26.txt EXHIBIT 3.26 Exhibit 3.26 DEAN HELLER =========================================== Secretary of State Office Use Only: Certificate of 202 North Carson Street Limited (State Carson City, Nevada 89701-4201 Partnership Seal) (775) 684 5708 (PURSUANT TO NRS 88) =========================================== - ------------------------------------------------------------------------------------------------------------------------------------ Important: Read attached instructions before completing form. - -------------------------------- --------------------------------------------------------------------------------------------------- 1. Name of Limited Partnership: (must contain the words Limited Partnership) - -------------------------------- --------------------------------------------------------------------------------------------------- 2. Street Address of Records Office in Nevada _______________________________________________________________________, NEVADA____________________ Street Address Zip Code - -------------------------------- --------------------------------------------------------------------------------------------------- 3. Resident Agent Name and ___________________________________________________________________________________________________ Street Address: Name (must be a Nevada address where process may be served) ____________________________________________________________________________, NEVADA_______________ Physical Street Address Zip Code _______________________________________________________________________, _________________________ Additional Mailing Address City State Zip Code - -------------------------------- --------------------------------------------------------------------------------------------------- 4. Dissolution Date: Latest date upon which the Limited partnership is to dissolve: ____________________________________ - -------------------------------- --------------------------------------------------------------------------------------------------- 5. Other Matters: Any other matters the general partners desire to include in this certificate may be noted on separate pages and incorporated by reference herein as a part of this certificate: Number of pages attached: __________ - -------------------------------- --------------------------------------------------------------------------------------------------- It is hereby declared that I am (we are) the person(s) who executed this Certificate of Limited 6. Name, Business Address and Partnership which execution constitutes an affirmation under the penalties of perjury that the Signatures of Each General facts stated herein are true. Partner (attach additional pages as necessary) _____________________________________________ _____________________________________________________ Name Signature ______________________________________________________________________, _____________ _____________ Address City State Zip Code _____________________________________________ _____________________________________________________ Name Signature ______________________________________________________________________, _____________ _____________ Address City State Zip Code _____________________________________________ _____________________________________________________ Name Signature ______________________________________________________________________, _____________ _____________ Address City State Zip Code _____________________________________________ _____________________________________________________ Name Signature ______________________________________________________________________, _____________ _____________ Address City State Zip Code - -------------------------------- --------------------------------------------------------------------------------------------------- 7. Certificate of Acceptance I hereby accept appointment as Resident Agent for the above named limited partnership. of Appointment of Resident Agent: _________________________________________________________________ _______________________________ Authorized Signature of R.A. or On Behalf of R.A. Company Date - -------------------------------- --------------------------------------------------------------------------------------------------- This form must be accompanied by appropriate fees. See attached fee schedule Nevada Secretary of State Form CERTofLP1999.01 Revised on: 12/11/02
EX-3.27 29 ex3-27.txt EXHIBIT 3.27 Exhibit 3.27 STATE OF NEW HAMPSHIRE Form No. 11 RSA 293-A:2.02 Fee for Form SRA: $50.00 Filing Fee: $35.00 ------ Total fees $85.00 Use black print or type. Leave 1" margins both sides. Form must be single-sided, on 8 1/2 x 11" paper, and have a one inch margin on both sides. Double sided copies will not be accepted. ARTICLES OF INCORPORATION THE UNDERSIGNED, ACTING AS INCORPORATOR(S) OF A CORPORATION UNDER THE NEW HAMPSHIRE BUSINESS CORPORATION ACT, ADOPT(S) THE FOLLOWING ARTICLES OF INCORPORATION FOR SUCH CORPORATION: FIRST: The name of the corporation is _______________________________ ________________________________________________________________________________ SECOND: The number of shares the corporation is authorized to issue: ________________________________________________________________________________ THIRD: The name of the corporation's initial registered agent is C T Corporation System ________________________________________________________________________________ and the street address, town/city (including zip code and post office box, if any) of its initial registered office is (agent's business address) 9 Capitol Street, Concord, New Hampshire 03301 - ----------------------------------------------- ________________________________________________________________________________ FOURTH: The capital stock will be sold or offered for sale within the meaning of RSA 421-B. (Uniform Securities Act) ________________________________________________________________________________ FIFTH: The corporation is empowered to transact any and all lawful business for which corporations may be incorporated under RSA 293-A and the principal purpose or purposes for which the corporation is organized are: [If more space is needed, attach additional sheet(s).] Form No. 11 ARTICLES OF INCORPORATION OF_________________________________ SIXTH: The name and address of each incorporator is: Name Address ---- ------- ________________________________ _____________________________________________ _____________________________________________ ________________________________ _____________________________________________ _____________________________________________ ________________________________ _____________________________________________ _____________________________________________ Dated________________________, ______ _____________________________________________ _____________________________________________ _____________________________________________ Incorporator(s) Mail fees, ORIGINAL, ONE EXACT OR CONFORMED COPY AND FORM SRA to: Secretary of State, State House, Room 204, 107 North Main Street, Concord, NH 03301-4989 EX-3.28 30 ex3-28.txt EXHIBIT 3.28 Exhibit 3.28 STATE OF NEW HAMPSHIRE Fee for Form SRA: $50.00 Form No. LP-1 Filing Fee: $35.00 RSA 304-B:8 ------ Total fees $85.00 Use black print or type. CERTIFICATE OF -------------- NEW HAMPSHIRE LIMITED PARTNERSHIP --------------------------------- LIMITED PARTNERSHIP NAME _______________________________________________________ (must contain the words "limited partnership" without abbreviation) OFFICE ADDRESS _________________________________________________________________ (where required records are to be kept) AGENT C T Corporation System -------------------------------------------------------------------------- AGENT ADDRESS 9 Capitol Street, Concord, New Hampshire 03301 ------------------------------------------------------------------ The capital stock will be sold or offered for sale within the meaning of RSA 421-B. (Uniform Securities Act) GENERAL PARTNER(S): NAME(S): BUSINESS ADDRESS(ES); __________________________________ ______________________________________ SIGNED:__________________________ ______________________________________ __________________________________ ______________________________________ SIGNED:__________________________ ______________________________________ __________________________________ ______________________________________ SIGNED:__________________________ ______________________________________ __________________________________ ______________________________________ SIGNED:__________________________ ______________________________________ (all general partners must sign, under penalties of perjury) LATEST DATE LIMITED PARTNERSHIP TO BE DISSOLVED: _______________________ OTHER MATTERS (Attach additional sheets as necessary): Dated ______________________, _____ Mail TOTAL FEES OF $85.00, DUPLICATE ORIGINALS OF THIS FORM (ORIGINAL SIGNATURES ON BOTH) AND ONE FORM SRA to: Secretary of State, State House, Room 204, 107 North Main Street, Concord, NH 03301-4989 EX-3.29 31 ex3-29.txt EXHIBIT 3.29 Exhibit 3.29 New Jersey Department of State Division of Commercial Recording Certificate of Formation, Limited Liability Company This form may be used to record the formation of a Limited Liability Company under and by virtue of New Jersey State law. Applicants must insure strict compliance with NJSA 42, the New Jersey Limited Liability Company Act, and insure that all applicable filing requirements are met. Applicants are advised to seek out private legal assistance before submitting filings to the Secretary's office. 1. Name of Limited Liability Company: 2. The purpose for which this Limited Liability Company is organized is: 3. Date of formation: 4. Registered Agent Name & Address (must be in NJ): The Corporation Trust Company 820 Bear Tavern Road, West Trenton, New Jersey 08628 5. Dissolution date: 6. Other provisions (list below or attach to certificate): The undersigned represent(s) that this filing complies with requirements detailed in NJSA 42. The undersigned hereby request(s) that they are authorized to sign this certificate on behalf of the Limited Liability Company. Signature: Date: EX-3.30 32 ex3-30.txt EXHIBIT 3.30 Exhibit 3.30 New Jersey Department of State Division of Commercial Recording Limited Partnership Certificate 1. Name of Limited Partnership: (Must contain Limited Partnership or the abbreviation L.P. in title) 2. The Address of the Principal Office: 3. Registered Agent/Office: The Corporation Trust Company, 820 Bear Tavern Road, West Trenton, NJ 08628 4. The Character of its business is: 5. The term for which the partnership is to exist is: 6. The name and address of each General Partner is: 7. Set forth aggregate amount of cash and a description and statement of the agreed value of other property or services contributed by all partners; or agreed to be contributed in the future: 8. Do the limited partners have the power to grant the right to become a limited partner to an assignee of any part of their partnership? ___ Yes ___ No. If yes, list the terms and conditions of that power. 9. If agreed upon, list when or what must occur to enable a partner to terminate his membership in the partnership. (Include the amount, or the way of determining the distribution of property to terminate a partner's interest). 10. Does the limited partner have the right to receive distributions from a partner which includes a return of all or any part of the partner's contributions? ___ Yes ___ No. If yes, set forth these terms. 11. Do the general partners have the right to make distributions to a partner which includes a return of all or any part of the partner's contribution. ___ Yes ___ No. If yes, set forth these terms. 12. When or upon what events occurring is this limited partnership to be dissolved and its affairs wound up? 13. What are the rights of the remaining general partners to continue the business in the event that a general partner withdraws? 14. List any other matters that the partners decide to include: If additional space is needed, attach a separate sheet (s). 15. Effective date of certificate, if subsequent to date of filing: (May not be later than 30 days from file date) IN TESTIMONY WHEREOF, the undersigned partners execute this certificate: Signature Date Signature Date Signature Date Signature Date Signature Date Signature Date EX-3.31 33 ex3-31.txt EXHIBIT 3.31 Exhibit 3.31 New York State Department of State Division of Corporations, State Records and Uniform Commercial Code Albany, NY 12231 (This form must be printed or typed in black ink) CERTIFICATE OF INCORPORATION OF __________________________________________ (Insert corporate name) Under Section 402 of the Business Corporation Law FIRST: The name of the corporation is: _______________________________________ _______________________________________________________________________________ SECOND: This corporation is formed to engage in any lawful act or activity for which a corporation may be organized under the Business Corporation Law, provided that it is not formed to engage in any act or activity requiring the consent or approval of any state official, department, board, agency or other body. THIRD: The county, within this state, in which the office of the corporation is to be located is: _____________________________________________________________ FOURTH: The total number of shares which the corporation shall have authority to issue and a statement of the par value of each share or a statement that the shares are without par value are: 200 No Par Value FIFTH: The secretary of state is designated as agent of the corporation upon whom process against the corporation may be served. The address to which the Secretary of State shall mail a copy of any process accepted on behalf of the corporation is: _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ SIXTH: (optional) The name and street address in this state of the registered agent upon whom process against the corporation may be served is: _________________________________________________________________ _________________________________________________________________ _________________________________________________________________ SEVENTH: (optional - the existence of the corporation begins on the date the certificate of incorporation is filed by the Department of State. Corporate existence may begin on a date, not to exceed 90 days, after the date of filing by the Department of State. Complete this paragraph only if you wish to have the corporation's existence to begin on a later date, which is not more than 90 days after the date of filing by the Department of State.) The date the corporate existence shall begin is: ___________________________________________________. X - --------------------------------------------- (Signature) - --------------------------------------------- (Type or print name) - --------------------------------------------- (Address) - --------------------------------------------- (City, State, Zip code) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CERTIFICATE OF INCORPORATION OF _____________________________________ (Insert corporate name) Under Section 402 of the Business Corporation Law - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Filed by: _______________________________________ (Name) _______________________________________ (Mailing address) _______________________________________ (City, State and Zip code) Note: This form was prepared by the New York State Department of State for filing a certificate of incorporation for a business corporation. It does not contain all optional provisions under the law. You are not required to use this form. You may draft your own form or use forms available at legal stationery stores. The Department of State recommends that legal documents be prepared under the guidance of an attorney. The fee for a certificate of incorporation is $125 plus the applicable tax on shares required by Section 180 of the Tax Law. The minimum tax on shares is $10. The tax on 200 no par value shares is $10 (total $135). Checks should be made payable to the Department of State for the total amount of the filing fee and tax. EX-3.32 34 ex3-32.txt EXHIBIT 3.32 Exhibit 3.32 New York State Department of State Division of Corporations, State Records and Uniform Commercial Code Albany, NY 12231 CERTIFICATE OF LIMITED PARTNERSHIP OF _______________________________________ (Insert Name of Domestic Limited Partnership) Under Section 121-201 of the Revised Limited Partnership Act FIRST: The name of the limited partnership is: _________________________________ ________________________________________________________________________________ SECOND: The county within this state in which the office of the limited partnership is to be located is:________________________________________________ THIRD: The Secretary of State is designed as agent of the limited partnership upon whom process against it may be served. The address to which the Secretary of State shall forward copies of process accepted on behalf of the limited partnership is:_________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ FOURTH: The name and business or residence street address of each general partner is: ______________________________________________________________________________ ______________________________________________________________________________ ______________________________________________________________________________ FIFTH: The latest date on which the limited partnership is to dissolve is: ______________________________________________________________________________ x_________________________________ ________________________________ (Signature of General Partner) (Type or print name) x_________________________________ ________________________________ (Signature of General Partner) (Type or print name) CERTIFICATE OF LIMITED PARTNERSHIP OF _______________________________________ (Insert Name of Domestic Limited Partnership) Under Section 121-201 of the Revised Limited Partnership Act Filed by: ___________________________ (Name) ___________________________ (Mailing address) ___________________________ (City, State and Zip code) NOTE: This form was prepared by the New York Department of State for filing a certificate of limited partnership for a domestic limited partnership. It does not contain all optional provisions under the law. You are not required to use this form. You may draft your own form or use forms available at legal stationery stores. The Department of State recommends that legal documents be prepared under the guidance of an attorney. The certificate must be signed by all general partners. This certificate must be accompanied by a fee of $200. _____________________________________________________________________________ (For office use only). -2- EX-3.33 35 ex3-33.txt EXHIBIT 3.33 Exhibit 3.33
State of North Carolina Department of the Secretary of State ARTICLES OF INCORPORATION Pursuant to ss. 55-2-02 of the General Statutes of North Carolina, the undersigned does hereby submit these Articles of Incorporation for the purpose of forming a business corporation. 1. The name of the corporation is:____________________________________________________________________________ 2. The number of shares the corporation is authorized to issue is:____________________________________________ These shares shall be: (check either a or b) a. __ all of one class, designated as common stock; or b. __ divided into classes or series within a class as provided in the attached schedule, with the information required by N.C.G.S. Section 55-6-01. 3. The street address and county of the initial registered office of the corporation is: Number and Street 225 Hillsborough Street, ----------------------------------------------------------------------------------- City, State, Zip Code Raleigh, North Carolina 27603 County Wake ----------------------------------------------------------------- ------ 4. The mailing address, if different from the street address, of the initial registered office is: ______________________________________________________________________________________________________________ 5. The name of the initial registered agent is: CT Corporation System -------------------------------------------------------------- 6. Principal office information: (must select either a or b) a. [ ] The corporation has a principal office. The street address and county of the principal office of the corporation is: Number and Street ___________________________________________________________________________________ City, State, Zip Code__________________________________________________County________________________ The mailing address, if different from the street address, of the principal office of the corporation is:_________________________________________________________ b. [ ] The corporation does not have a principal office. 7. Any other provisions, which the corporation elects to include, are attached. 8. The name and address of each incorporator is as follows: CORPORATIONS BUREAU P.O. BOX 29622 RALEIGH, NC 27626-0622 (Revised January, 2002) (Form B-01)
9. These articles will be effective upon filing, unless a date and/or time is specified:______________________ This the ___ day of __________ 20__ ______________________________________ ______________________________________ Signature ______________________________________ Type or Print Name NOTES: 1. Filing fee is $125. This document must be filed with the Secretary of State. CORPORATIONS BUREAU P.O. BOX 29622 RALEIGH, NC 27626-0622 (Revised January, 2002) (Form B-01)
EX-3.34 36 ex3-34.txt EXHIBIT 3.34 Exhibit 3.34
State of North Carolina Department of the Secretary of State Limited Liability Company ARTICLES OF ORGANIZATION Pursuant to ss. 57C-2-20 of the General Statutes of North Carolina, the undersigned does hereby submit these Articles of Organization for the purpose of forming a limited liability company. 1. The name of the limited liability company is: ___________________________________________________________ 2. If the limited liability company is to dissolve by a specific date, the latest date on which the limited liability company is to dissolve: (If no date for dissolution is specified, there shall be no limit on the duration of the limited liability company.) _________________________________________________________ 3. The name and address of each person executing these articles of organization is as follows: (State whether each person is executing these articles of organization in the capacity of a member, organizer or both). 4. The street address and county of the initial registered office of the limited liability company is: Number and Street________________________________________________________________________________________ City, State, Zip Code______________________________________________ County _____________________________ 5. The mailing address, if different from the street address, of the initial registered office is: 6. The name of the initial registered agent is: 7. Principal office information: (Select either a or b.) a. [ ] The limited liability company has a principal office. The street address and county of the principal office of the limited liability company is: Number and street ________________________________________________________________________________ City, State, Zip Code___________________________________________ County _________________________ The Mailing address, if different from the street address, of the principal office of the corporation is: __________________________________________________________________________________________________ b. [ ] The limited liability company does not have a principal office.
8. Check one of the following: _____ (i) Member-managed LLC: all members by virtue of their status as members shall be managers of this limited liability company. _____ (ii) Manager-managed LLC: except as provided by N.C.G.S. Section 57C-3-20(a), the members of this limited liability company shall not be managers by virtue of their status as members. 9. Any other provisions which the limited liability company elects to include are attached. 10. These articles will be effective upon filing, unless a date and/or time is specified: This is the _____ day of _______________, 20_____. _________________________________________ _________________________________________ Signature _________________________________________ Type of Print Name and Title NOTES: 1. Filing fee is $125. This document must be filed with the Secretary of State. CORPORATIONS DIVISION P.O. Box 29622 RALEIGH, NC 27626-0622 (Revised January 2002) (Form L-01)
EX-3.35 37 ex3-35.txt EXHIBIT 3.35 Exhibit 3.35
[State Seal] State of North Carolina Department of the Secretary of State CERTIFICATE OF DOMESTIC LIMITED PARTNERSHIP Pursuant to ss. 59-201 of the General Statutes of North Carolina, the undersigned hereby submits this Certificate of Domestic Limited Partnership. 1. The name of the limited partnership is: ____________________________________________________________________ (The name must contain the words "Limited Partnership," or the abbreviation "L.P." or "LP," or the combination "Ltd. Partnership"). 2. If formed prior to October 1, 1986, complete this section: County of Filing _____________________________________ County File Number __________________________ Date of Filing ______________________________________ 3. Name of Registered Agent: C T Corporation System --------------------------------------------------------- 4. Address of Registered Office: Number and Street 225 Hillsborough Street ------------------------------------------------------------------------------------------ City, State, Zip Code Raleigh, North Carolina, 27603 County Wake --------------------------------------------------------------------- --------- 5. Address of office where records are kept, if not kept at registered office: Number and Street __________________________________________________________________________________________ City, State, Zip Code _____________________________________________________________________ County _________ 6. Latest date upon which the limited partnership is to dissolve. (If no date is specified, there shall be no limit on the limited partnership's duration.) _______________________________________________________________________ 7. State the name, address, including county and city or town, and street and number, if any, of each general partner. (Attach additional sheets if necessary.) 8. This registration will be effective upon filing, unless a date and/or time is specified: ________________________________________
9. The following and attached signatures of EACH general partner constitute an affirmation under the penalty of perjury that the facts herein are true. (a) If the general partner is an individual, complete this section: Signature _________________________________________________ Date ________________________________ Typed or Printed Name _____________________________________ Signature _________________________________________________ Date ________________________________ Typed or Printed Name _____________________________________ Signature _________________________________________________ Date ________________________________ Typed or Printed Name _____________________________________ Signature _________________________________________________ Date ________________________________ Typed or Printed Name _____________________________________ (b) If the general partner is a corporation or other entity, complete this section. Name of corporation or other entity ________________________________________________________________________ Signature of officer _______________________________________________________________________________________ Name and Title of officer __________________________________________________________________________________ Date _______________________________________ Name of corporation or other entity ________________________________________________________________________ Signature of officer _______________________________________________________________________________________ Name and Title of officer __________________________________________________________________________________ Date _______________________________________ Name of corporation or other entity ________________________________________________________________________ Signature of officer _______________________________________________________________________________________ Name and Title of officer __________________________________________________________________________________ Date _______________________________________ Name of corporation or other entity ________________________________________________________________________ Signature of officer _______________________________________________________________________________________ Name and Title of officer __________________________________________________________________________________ Date _______________________________________ NOTES: Filing Fee is $50. This document must be filed with the Secretary of State.
EX-3.36 38 ex3-36.txt EXHIBIT 3.36 Exhibit 3.36 ------------------------------------------ Prescribed by J. Kenneth Blackwell Expedite this Form: (Select One) ------------------------------------------ [STATE SEAL] Ohio Secretary of State Mail Form to one of the Following: Central Ohio: (614) 466-3910 ------------------------------------------ Toll Free: 1-877-SOS-FILE (1-877-767-3453) [ ] Yes PO Box 1390 Columbus, OH 43216 *** Requires an additional fee of $100 *** www.state.oh.us/sos ------------------------------------------ - ------------------- [ ] No PO Box 670 e-mail: busserv@sos.state.oh.us Columbus, OH 43216 ------------------------------------------ INITIAL ARTICLES OF INCORPORATION (For Domestic Profit or Non-Profit) Filing Fee $125.00 THE UNDERSIGNED HEREBY STATES THE FOLLOWING: (CHECK ONLY ONE (1) BOX) - ------------------------------------------------------------------------------------------------------------------------------------ (1) [ ] Articles of Incorporation (2) [ ] Articles of Incorporation (3) [ ] Articles of Incorporation Professional Profit Non-Profit (170-ARP) (113-ARF) (114-ARN) Profession __________________________ ORC 1701 ORC 1702 ORC 1785 - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Complete the general information in this section for the box checked above. - --------------------------------------------------------------------------- FIRST: Name of Corporation ______________________________________________________________________________________________________ SECOND: Location __________________________________________ __________________________ (City) (County) Effective Date (Optional) ______________ Date specified can be no more than 90 days after date of filing. If a date is specified, (mm/dd/yyyy) the date must be a date on or after the date of filing. [ ] Check here if additional provisions are attached - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Complete the information in this section if box (2) or (3) is checked. Completing this section is optional if box (1) is checked. - ------------------------------------------------------------------------------------------------------------------------------------ THIRD: Purpose for which corporation is formed -------------------------------------------------------------------------------------------------------------------------- -------------------------------------------------------------------------------------------------------------------------- -------------------------------------------------------------------------------------------------------------------------- -------------------------------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Complete the information in this section if box (1) or (3) is checked. - ---------------------------------------------------------------------- FOURTH: The number of shares which the corporation is authorized to have outstanding (Please state if shares are common or preferred and their par value if any) ---------------- ---------- ------------------------ (No. of Shares) (Type) (Par Value) (Refer to instructions if needed) - ------------------------------------------------------------------------------------------------------------------------------------ Page 1 of 3
- ------------------------------------------------------------------------------------------------------------------------------------ Completing the information in this section is optional - ------------------------------------------------------ FIFTH: The following are the names and addresses of the individuals who are to serve as initial Directors. ---------------------------------------------------------------------------------- (Name) ---------------------------------------------------------------------------------- (Street) NOTE: P.O. Box Addresses are NOT acceptable. -------------------- ------------------------ ----------------- (City) (State) (Zip Code) ---------------------------------------------------------------------------------- (Name) ---------------------------------------------------------------------------------- (Street) NOTE: P.O. Box Addresses are NOT acceptable. -------------------- ------------------------ ----------------- (City) (State) (Zip Code) ---------------------------------------------------------------------------------- (Name) ---------------------------------------------------------------------------------- (Street) NOTE: P.O. Box Addresses are NOT acceptable. -------------------- ------------------------ ----------------- (City) (State) (Zip Code) - ------------------------------------------------------------------------------------------------------------------------------------ REQUIRED ------------------------------------------------------- ------------------------ Must be authenticated (signed) by an authorized ------------------------------------------------------- ------------------------ representative Authorized Representative Date (See Instructions) ------------------------------------------------------- (Print Name) ------------------------------------------------------- ------------------------------------------------------- ------------------------------------------------------- ------------------------ ------------------------------------------------------- ------------------------ Authorized Representative Date ------------------------------------------------------- (Print Name) ------------------------------------------------------- ------------------------------------------------------- ------------------------------------------------------- ------------------------ ------------------------------------------------------- ------------------------ Authorized Representative Date ------------------------------------------------------- (Print Name) ------------------------------------------------------- -------------------------------------------------------
Page 2 of 3 - ------------------------------------------------------------------------------------------------------------------------------------ Complete the information in this section if box (1) (2) or (3) is checked. - -------------------------------------------------------------------------- ORIGINAL APPOINTMENT OF STATUTORY AGENT The undersigned, being at least a majority of the incorporators of__________________________________________________________________ hereby appoint the following to be statutory agent upon whom any process, notice or demand required or permitted by statute to be served upon the corporation may be served. The complete address of the agent is --------------------------------------------------------------------------- (Name) --------------------------------------------------------------------------- (Street) NOTE: P.O. Box Addresses are NOT acceptable. ,Ohio --------------------------------------- -------------------- (City) (Zip Code) ------------------------------------------------------- ------------------------ Must be authenticated by an authorized representative ------------------------------------------------------- ------------------------ Authorized Representative Date ------------------------------------------------------- ------------------------ ------------------------------------------------------- ------------------------ Authorized Representative Date ------------------------------------------------------- ------------------------ ------------------------------------------------------- ------------------------ Authorized Representative Date ACCEPTANCE OF APPOINTMENT The Undersigned, ___________________________________________________________________________________________, named herein as the Statutory agent for, _____________________________________________________________________________________________________________, hereby acknowledges and accepts the appointment of statutory agent for said entity. Signature: -------------------------------------------------------------- (Statutory Agent) - ------------------------------------------------------------------------------------------------------------------------------------
Page 3 of 3 EX-3.37 39 ex3-37.txt EXHIBIT 3.37 Exhibit 3.37
[State Seal] ------------------------------------------- Prescribed by J. Kenneth Blackwell Expedite this Form: (Select One) Ohio Secretary of State ------------------------------------------- Central Ohio: (614) 466-3910 Mail Form to one of the Following: Toll Free: 1-877-SOS-FILE (1-877-767-3453) ------------------------------------------- PO Box 1390 o Yes Columbus, OH 43216 *** Requires an additional fee of $100 *** ------------------------------------------ www.state.oh.us/sos PO Box 670 e-mail: busserv@sos.state.oh.us o No Columbus, OH 43216 ------------------------------------------- Application for Registration of a Registered Partnership Having Limited Liability or Certificate of Limited Partnership (Domestic or Foreign) Filing Fee $125.00 THE UNDERSIGNED DESIRING TO FILE A: (CHECK ONLY ONE (1) BOX) - ------------------------------------------------------------------------------------------------------------------------------------ (1) Certificate of Limited Partnership (2) Application for Registration of a [ ] Domestic (141-CLP) Registered Partnership Having Limited Liability [ ] Foreign (104-LPF) ______________ ______________________ [ ] Domestic [ ] Foreign _________________ (Home State) (Date of Organization) (105-PLL) (105-PLF) (State) ORC 1782 ORC 1775.61 (A) - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Complete the general information in this section for the box checked above. - --------------------------------------------------------------------------- The Name of the Partnership Shall Be ___________________________________________________________________________________ [ ] Check here if additional provisions are attached - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Complete the information in this section if Domestic or Foreign is checked in box (1). - -------------------------------------------------------------------------------------- The Address of the principal place of business of the partnership shall be ______________________________________________________________ (Street) _________________ _____________________________ ______________ (City) (State) (Zip Code) The Name and Business or Residence Address of each GENERAL PARTNER is (Name) (Address) __________________________________________________ _______________________________________________________________ __________________________________________________ _______________________________________________________________ __________________________________________________ _______________________________________________________________ (If insufficient space to cover this item, please attach additional sheet) - ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------ Complete the information in this section if box (1) or (2) is checked. - ---------------------------------------------------------------------- The above stated hereby appoints the following as its Statutory Agent The Name & Address of a ________________________________________________________________ Statutory Agent for Service of Process (Name) in Ohio is ________________________________________________________________ (Street) NOTE: P.O. Box Addresses are NOT acceptable. Ohio ------------------------------- ------- ------------------ (City) (State) (Zip Code) The entity above irrevocably consents to service of process on the agent listed above as long as the authority of the agent continues, and to service of process upon the OHIO SECRETARY OF STATE if: A. the agent cannot be found or B. the above listed fails to designate another agent when required to do so, or C. the above stated registration to do business in Ohio expires or is cancelled. ACCEPTANCE OF APPOINTMENT (Agent must sign Acceptance of Appointment if Domestic is checked in box 1.) The Undersigned, __________________________________________________________________________ ,named herein as the Statutory agent for, ________________________________________________________________ , hereby acknowledges and accepts the appointment of statutory agent for said entity. Signature: __________________________________________________ (Statutory Agent) - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Complete the information in this section if Foreign is checked in box (1). - -------------------------------------------------------------------------- The Address of the ______________________________________________________________________________________ Foreign Partnership (Street) in the State or Country of Formation ____________________ _________________________________________________ _______________ (City) (State or Country) (Zip Code) (If the foreign limited partnership is not required to maintain an office in its state of formation, please indicate this fact in this space) The address of the office where a list of the names and business or residence addresses of the limited partnership and their capital contributions is to be maintained until the registration of the foreign limited partnership is cancelled or withdrawn is ______________________________________________________________________________________ (Street) ____________________ _________________________________________________ _______________ (City) (State or Country) (Zip Code) - ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------ Complete the information in this section if box (2) is checked. - --------------------------------------------------------------- Please complete the following appropriate section (either item A or B) (A) The Address of the Partnership's ______________________________________________________________ Principal Office in Ohio is (Street) NOTE: P.O. Box Addresses are NOT acceptable. Ohio -------------------- ---------------------- ------------ (City) (State) (Zip Code) If the partnership does not have a principal office in Ohio, then item B must be completed. (B) The Address of the Partnership's ______________________________________________________________ Office is (Street) NOTE: P.O. Box Addresses are NOT acceptable. -------------------- ---------------------- ------------ (City) (State) (Zip Code) The business which the partnership engages in is _____________________________________________________________________ ____________________________________________________________________________________________________________ The effective date shall be ________________ (Date) (If a date is specified, the date must be a date on or after the date of filing; the effective date of the application cannot be earlier than the date of filing, if no date is specified, the date of filing will be the effective date of the application.) - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Follow these signature instructions in this section if an item in box (1) is checked. - ------------------------------------------------------------------------------------- (Domestic) Certificate must be signed by all general partners. (Foreign) This application is to be signed by a general partner of the limited partnership. - ------------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------------ Follow these signature instructions in this section if an item in box (2) is checked. - ------------------------------------------------------------------------------------- The registration application must be executed by a majority in interest of the partners or by one or more partners authorized by the partnership to execute the registration application. - ------------------------------------------------------------------------------------------------------------------------------------ REQUIRED -------------------------------------------------- ------------------------ Must be authenticated (signed) by an authorized representative (See Instructions) -------------------------------------------------- ------------------------ Authorized Representative Date -------------------------------------------------- Print Name -------------------------------------------------- -------------------------------------------------- -------------------------------------------------- ------------------------ -------------------------------------------------- ------------------------ Authorized Representative Date -------------------------------------------------- Print Name -------------------------------------------------- --------------------------------------------------
EX-3.38 40 ex3-38.txt EXHIBIT 3.38
Exhibit 3.38 - ----------------------------------------------------------------------------------------------------------------------- PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU - ----------------------------------------------------------------------------------------------------------------------- Articles of Incorporation - For Profit (15 Pa.C.S.) _____ Business-stock (ss. 1306) _____ Management (ss. 2703) _____ Business-nonstock (ss. 2102) _____ Professional (ss. 2903) Entity Number _____ Business-statutory close (ss. 2303) _____ Insurance (ss. 3101) _____ Cooperative (ss. 7102) Document will be returned to the name and address you Name enter to the left. ----------------------------------------------------------------- Address ----------------------------------------------------------------- City State Zip Code ----------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------- Fee: $100 --------- Filed in the Department of State on ______________________ ____________________________________________________ Secretary of the Commonwealth ----------------------------------------------------------------- In compliance with the requirements of the applicable provisions (relating to corporations and unincorporated associations), the undersigned, desiring to incorporate a corporation for profit, hereby states that: - ----------------------------------------------------------------------------------------------------------------------- 1. The name of the corporation (corporate designator required, i.e., "corporation", "incorporated", "limited" "company" or any abbreviation. "Professional corporation" or "P.C."): ________________________________________________________________________________________________ - ----------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- 2. The (a) address of this corporation's current registered office in this Commonwealth (post office box, alone, is not acceptable) or (b) name of its commercial registered office provider and the county of venue is: (a) Number and Street City State Zip County ________________________________________________________________________________________________ (b) Name of Commercial Registered Office Provider County
- ------------------------------------------------------------------------------------------------ c/o:__________________________________________________________________________________________ - ------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------ 3. The corporation is incorporated under the provisions of the Business Corporation Law of 1988. - ------------------------------------------------------------------------------------------------ - -------------------------------------------------------------------------------- 4. The aggregate number of shares authorized: - -------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------- 5. The name and address, including number and street, if any, of each incorporator (all incorporators must sign below): Name Address _______________________________________________________________________________________________________________________ _______________________________________________________________________________________________________________________ - ---------------------------------------------------------------------------------------------------------------------- 6. The specified effective date, if any: ____________________________." month/day/year hour, if any - ---------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------- 7. Additional provisions of the articles, if any, attach an 8-1/2 by 11 sheet. - ---------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------- 8. Statutory close corporation only: Neither the corporation nor any shareholder shall make an offering of any of its shares of any class that would constitute a "public offering" within the meaning of the Securities Act of 1933 (15 U.S.C. 77a et seq.) - ---------------------------------------------------------------------------------------------------------------------- - ---------------------------------------------------------------------------------------------------------------------- 9. Cooperative corporations only: Complete and strike out inapplicable term: The common bond of membership among its members/shareholders is: ___________. - ---------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------- IN TESTIMONY WHEREOF, the incorporator(s) has/have signed these Articles of Incorporation this ____________ day of _________________, _________ __________________________________________________ Signature __________________________________________________ Signature --------------------------------------------------
EX-3.39 41 ex3-39.txt EXHIBIT 3.39 Exhibit 3.39
- ----------------------------------------------------------------------------------------------------------------------- PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU ______________________________________________________________________________________________ Certificate of Organization Domestic Limited Liability Company Entity Number (15 Pa.C.S. ss. 8913) Certificate of Organization Domestic Limited Liability Company Entity Number (15 Pa.C.S. ss. 8913) ----------------------------------------------------------------- Document will be returned to Name the name and address you ----------------------------------------------------------------- enter to the left. Address ----------------------------------------------------------------- City State Zip Code ----------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------- Fee: $100 ---------- Filed in the Department of State on ______________________ ___________________________________________________ Secretary of the Commonwealth ----------------------------------------------------------------- In compliance with the requirements of 15 Pa.C.S. ss. 8913 (relating to certificate of organization), the undersigned, desiring to organize a limited liability company, hereby certifies that: - ----------------------------------------------------------------------------------------------------------------------- 1. The name of the limited liability company (designator required, i.e., "company", "limited" or "limited liability company" or abbreviation: _______________________________________________________________________________________________________________________ - ----------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- 2. The (a) address of the limited liability company's initial registered office in this Commonwealth or (b) name of its commercial registered office provider and the county of venue is: (a) Number and Street City State Zip County (b) Name of Commercial Registered Office Provider County c/o:___________________________________________________________________________________________________________________ - ----------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- 3. The name and address, including street and number, if any, of each organizer (all organizers must sign on page 2): Name Address _______________________________________________________________________________________________________________________ - -----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------- 4. Strike out if inapplicable term A member's interest in the company is to be evidenced by a certificate of membership interest - ----------------------------------------------------------------------------------------------------------------------- - --------------------------------------------------------------------------- 5. Strike out if inapplicable: Management of the company is vested in a manager or managers. - --------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- 6. The specified effective date, if any: ______________________________________. month day year hour, if any - ----------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- 7. Strike out if inapplicable: The company is a restricted professional company organized to render the following restricted professional service(s): ____________________________________________________________________________________________________ - ----------------------------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------- 8. For additional provisions of the certificate, if any, attach an 8 1/2 x 11 sheet. - ------------------------------------------------------------------------------------------- -------------------------------------------------------- IN TESTIMONY WHEREOF, the organizer(s) has (have) signed this Certificate of Organization this ____________ day of __________________________, ________ ________________________________________________________ Signature ________________________________________________________ Signature ________________________________________________________ Signature --------------------------------------------------------
EX-3.40 42 ex3-40.txt EXHIBIT 3.40 Exhibit 3.40
- ----------------------------------------------------------------------------------------------------------------------- PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU ______________________________________________________________________________________________ Certificate of Limited Partnership Entity Number (15 Pa.C.S.ss. 8511) Certificate of Limited Partnership Entity Number (15 Pa.C.S.ss. 8511) ----------------------------------------------------------------- Document will be returned to Name the name and address you ----------------------------------------------------------------- enter to the left. Address ----------------------------------------------------------------- City State Zip Code ----------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- ----------------------------------------------------------------- Fee: $100 Filed in the Department of State on ______________________ ___________________________________________________ Secretary of the Commonwealth ----------------------------------------------------------------- In compliance with the requirements of 15 Pa.C.S. ss. 8511 (relating to certificate of limited partnership), the undersigned, desiring to form a limited partnership, hereby certifies that: - ----------------------------------------------------------------------------------------------------------------------- 1. The name of the limited partnership (may contain the word "company", or "limited" or "limited partnership" or any abbreviation: ______________________________________________________________________________________________________________________ - ----------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- 2. The (a) address of the limited partnership's initial registered office in this Commonwealth or (b) name of its commercial registered office provider and the county of venue is: (a) Number and Street City State Zip County (b) Name of Commercial Registered Office Provider County c/o:__________________________________________________________________________________________________________________ - ----------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- 3. The name and address of each general partner of the partnership is: Name Address ______________________________________________________________________________________________________________________ ______________________________________________________________________________________________________________________ ______________________________________________________________________________________________________________________ - -----------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------- 4. Check, and if appropriate complete, one of the following: ___ The formation of the limited partnership shall be effective upon filing this Certificate of Limited Partnership in the Department of State. ___ The formation of the limited partnership shall be effective on:_______ at _________. Date Hour - ----------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- 5. The specified effective date, if any is: _________________________________________________________________________. month day year hour, if any - ----------------------------------------------------------------------------------------------------------------------- - ----------------------------------------------------------------------------------------------------------------------- --------------------------------------------------------- IN TESTIMONY WHEREOF, the undersigned general partner(s) of the limited partnership has (have) executed this Certificate of Limited Partnership this ____________ day of _________________, _________________ ________________________________________________________ Signature ________________________________________________________ Signature ________________________________________________________ Signature ---------------------------------------------------------
EX-3.41 43 ex3-41.txt EXHIBIT 3.41 Exhibit 3.41 Filing Fee: $150.00 ID Number______________ [State Seal] STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS Office of the Secretary of State Corporations Division 100 North Main Street Providence, Rhode Island 02903-1335 BUSINESS CORPORATION ___________________ ARTICLES OF INCORPORATION (To Be Filed In Duplicate Original) The undersigned acting as incorporator(s) of a corporation under Chapter 7-1.1 of the General Laws, 1956, as amended, adopt(s) the following Articles of Incorporation for such corporation: 1. The name of the corporation is_____________________________________________ ___________________________________________________________________________ (This is a close corporation pursuant to ss. 7-1.1-51 of the General Laws, 1956, as amended.) (Strike if inapplicable.) 2. The period of its duration is (if perpetual, so state)_____________________ 3. The specific purpose or purposes for which the corporation is organized are: ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ ___________________________________________________________________________ 4. The aggregate number of shares which the corporation shall have authority to issue is: (a) If only one class: Total number of shares____________________(If the authorized shares are to consist of one class only state the par value of such shares or a statement that all of such shares are to be without par value.): _______________________________________________________________________________ or -- (b) If more than one class: Total number of shares____________________ (State (A) the number of shares of each class thereof that are to have a par value and the par value of each share of each such class, and/or (B) the number of such shares that are to be without par value, and (C) a statement of all or any of the designations and the powers, preferences and rights, including voting rights, and the qualifications, limitations or restrictions thereof, which are permitted by the provisions of Chapter 7-1.1 of the General Laws, 1956, as amended, in respect of any class or classes of stock of the corporation and the fixing of which by the articles of association is desired, and an express grant of such authority as it may then be desired to grant to the board of directors to fix by vote or votes any thereof that may be desired but which shall not be fixed by the articles): _______________________________________________________________________________ _______________________________________________________________________________ 5. Provisions, if any, dealing with the preemptive right of shareholders pursuant to ss. 7-1.1-24 of the General Laws, 1956, as amended: _______________________________________________________________________________ _______________________________________________________________________________ 6. Provisions, if any, for the regulation of the internal affairs of the corporation: _______________________________________________________________________________ _______________________________________________________________________________ 7. The address of the initial registered office of the corporation is ____________________________________ _________________________________, RI (Street Address, not P.O.Box) (City/Town) _________________and the name of its initial registered agent at such address is (Zip Code) _________________________________________. (Name of Agent) 8. The number of directors constituting the initial board of directors of the corporation is________________________________and the names and addresses of the persons who are to serve as directors until the first annual meeting of shareholders or until their successors are elected and shall qualify are: (If this is a close corporation pursuant to Section 7-1.1-51 of the General Laws, 1956, as amended, and there shall be no board of directors, state the titles of the initial officers of the corporation and the names and addresses of the persons who are to serve as officers until the first annual meeting of shareholders or until their successors be elected and qualify.) Title Name Address - ----- ---- ------- ____________ ____________________________ _________________________________ ____________ ____________________________ _________________________________ ____________ ____________________________ _________________________________ ____________ ____________________________ _________________________________ 9. The name and address of each incorporate is: Name Address ---- ------- _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ 10. Date when corporate existence is to being _______________________________ (not prior to, nor more than 30 days after, the filing of these articles of incorporation) Date:________________ ____________________________________________ ____________________________________________ ____________________________________________ Signature of each Incorporator STATE OF___________________________ COUNTY OF___ In ______________________, on this day of _______, ______, personally appeared before me ___________________________________________, each and all known to me and known by me to be the parties executing the foregoing instrument, and they severally acknowledged said instrument by them subscribed to be their free act and deed. _______________________________________ Notary Public My Commission Expires: ________________ -2- EX-3.42 44 ex3-42.txt EXHIBIT 3.42 Exhibit 3.42 Filing Fee: $100.00 ID Number_______________ [State Seal] STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS Office of the Secretary of State Corporations Division 100 North Main Street Providence, Rhode Island 02903-1335 LIMITED PARTNERSHIP ___________________ CERTIFICATE OF LIMITED PARTNERSHIP (To Be Filed In Duplicate Original) The undersigned, desiring to form a limited partnership under and by virtue of the powers conferred by Section 7-13-8 of the General Laws, 1956, as amended, do execute the following Certificate of Limited Partnership: 1. The name of the limited partnership shall be: __________________________________________________________________________ (The name must contain the words "limited partnership" or the letters and punctuation "L.P.") 2. The address of the specified office in this state where the records of the limited partnership shall be kept is: __________________________________________________________________________ 3. The name and address of the specified agent for service of process is: ______________________________ (Name of Agent) _________________________________________ _________________, RI __________ (Street Address, not P.O. Box) (City/Town) (Zip Code) 4. The name and business address of each general partner is: General Partner Business Address ____________________________ ________________________________________ ____________________________ ________________________________________ ____________________________ ________________________________________ ____________________________ ________________________________________ ____________________________ ________________________________________ ____________________________ ________________________________________ ____________________________ ________________________________________ 5. The mailing address for the limited partnership is:_______________________ (Street Address) __________________________________________, ____________________ _________ (City/Town) (State) (Zip Code) 6. Any other matters the partners determine to include herein: __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ __________________________________________________________________________ (if additional space is required, please list on separate attachment.) Under penalty of perjury, I/we declare and affirm that I/we have examined this Certificate of Limited Partnership, including any accompanying attachments, and that all statements contained herein are true and correct. Date: __________________ By ___________________________________ By ___________________________________ By ___________________________________ By ___________________________________ By ___________________________________ Signature(s) of all general partners named herein EX-3.43 45 ex3-43.txt EXHIBIT 3.43 Exhibit 3.43 STATE OF SOUTH CAROLINA SECRETARY OF STATE ARTICLES OF INCORPORATION TYPE OR PRINT CLEARLY IN BLACK INK - ---------------------------------- 1. The name of the proposed corporation is___________________________________ 2. The initial registered office of the corporation is_______________________ Street Address __________________________________________________________________________ City County State Zip Code and the initial registered agent at such address is____________________________ Print Name I hereby consent to the appointment as registered agent of the corporation: ____________________________________ Agent's Signature 3. The corporation is authorized to issue shares of stock as follows. Complete "a" or "b", whichever is applicable: a. [ ] The corporation is authorized to issue a single class of shares, the total number of shares authorized is _____________________. b. [ ] The corporation is authorized to issue more than one class of shares: Class of Shares Authorized No. of Each Class _______________________________ _______________________________ _______________________________ _______________________________ _______________________________ _______________________________ The relative right, preference, and limitations of the shares of each class, and of each series within a class, are as follows: 4. The existence of the corporation shall begin as of the filing date with the Secretary of State unless a delayed date is indicated (See Section 33-1-230(b) of the 1976 South Carolina Code of Laws, as amended)__________ __________________________________________________________________________ _________________________________ Name of Corporation 5. The optional provisions, which the corporation elects to include in the articles of incorporation, are as follows (See the applicable provisions of Sections 33-2-102, 35-1-105, and 35-2-221 of the 1976 South Carolina Code of Laws, as amended). 6. The name, address, and signature of each incorporator is as follows (only one is required): a. _____________________________________ Name _____________________________________ Address _____________________________________ Signature b. _____________________________________ Name _____________________________________ Address _____________________________________ Signature c. _____________________________________ Name _____________________________________ Address _____________________________________ Signature 7. I, __________________________, an attorney licensed to practice in the state of South Carolina, certify that the corporation, to which articles of incorporation this certificate is attached, has complied with the requirements of Chapter 2, Title 33 of the 1976 South Carolina Code of Laws, as amended, relating to the articles of incorporation Date_____________________ _________________________________ Signature __________________________________ Type or Print Name __________________________________ Address __________________________________ __________________________________ Telephone Number -2- EX-3.44 46 ex3-44.txt EXHIBIT 3.44 Exhibit 3.44 STATE OF SOUTH CAROLINA SECRETARY OF STATE CERTIFICATE OF LIMITED PARTNERSHIP TYPE OR PRINT CLEARLY IN BLACK INK - ---------------------------------- Pursuant to Section 33-42-210 of the 1976 South Carolina code, as amended, the undersigned limited partnership submits the following: 1. The name of the proposed limited partnership is___________________________ 2. The address of the office of the registered agent of the limited partnership is __________________________________________________________________________ Street Address __________________________________________________________________________ City County State Zip Code 3. The name of the registered agent at the above address is__________________ I hereby consent to the appointment as registered agent ____________________________________ Agent's Signature 4. The address of the principal office is: __________________________________________________________________________ Street Address __________________________________________________________________________ City County State Zip Code 5. The name and mailing address of each general partner of the limited partnership: a. _____________________________________________________________________ Name _____________________________________________________________________ Mailing Address _____________________________________________________________________ City State Zip Code b. _____________________________________________________________________ Name _____________________________________________________________________ Mailing Address _____________________________________________________________________ City State Zip Code 6. The latest date upon which the limited partnership is to dissolve:________ ____________________________________ Name of Limited Partnership 7. The optional provisions which the limited partnership wishes to include are as follows: __________________________________________________________________________ __________________________________________________________________________ 8. The existence of the limited partnership shall begin as of the filing date with the Secretary of State unless a delayed date is indicated (See Section 33-1-230(b) of the 1976 South Carolina Code of Laws, as amended): _______________________________________________________________________ Date ____________________ 1. _____________________________________ Signature of General Partner _____________________________________ Type or Print Name 2. _____________________________________ Signature of General Partner __________________________________ Type or Print Name FILING INSTRUCTIONS ------------------- 1. Two copies of this application, the original and either a duplicate original or a conformed copy, must be filed. 2. If space on this form is insufficient, please attach additional sheets containing a reference to the appropriate paragraph in this form, or prepare this form by computer disk which will allow additional space to be included on the form. 3. This application must be signed by all general partners and accompanied by the filing fee of $10.00 payable to the "SECRETARY OF STATE." Return to: Secretary of State P.O. Box 11350 Columbia, SC 29211 NOTE ---- THE FILING OF THIS DOCUMENT DOES NOT, IN AND OF ITSELF, PROVIDE AN EXCLUSIVE RIGHT TO USE THIS NAME ON OR IN CONNECTION WITH ANY PRODUCT OR SERVICE. USE OF A NAME AS A TRADEMARK OR SERVICE MARK WILL REQUIRE FURTHER CLEARANCE AND REGISTRATION AND BE AFFECTED BY PRIOR USE OF THE MARK. FOR MORE INFORMATION, CONTACT THE TRADEMARKS DIVISION OF THE SECRETARY OF STATE'S OFFICE AT (803) 734-2511. -2- EX-3.45 47 ex3-45.txt EXHIBIT 3.45 Exhibit 3.45
- ---------------------------------------------------------------------------------------------------------------------------------- State of Tennessee For Office Use Only [State Seal] Department of State Corporate Filings C H A R T E R 312 Eighth Avenue North (For-Profit Corporation) 6th Floor, William R. Snodgrass Tower Nashville, TN 37243 - ---------------------------------------------------------------------------------------------------------------------------------- The undersigned acting as incorporator(s) of a for-profit corporation under the provisions of the Tennessee Business Corporation act adopts the following Articles of Incorporation - ---------------------------------------------------------------------------------------------------------------------------------- 1. The name of the corporation is: _________________________________________________________________________________________________________________________________ [NOTE: Pursuant to Tennessee Code Annotatedss. 48-14-101(a)(1), each corporation name must contain the words corporation, incorporated, or company or the abbreviation corp., inc., or co.] - ---------------------------------------------------------------------------------------------------------------------------------- 2. The number of shares of stock the corporation is authorized to issue is: - ---------------------------------------------------------------------------------------------------------------------------------- 3. The name and complete address of the corporation's initial registered agent and office located in the State of Tennessee is: _________________________________________________________________________________________________________________________________ (Name) _________________________________________________________________________________________________________________________________ (Street Address) (City) (State/Zip Code) __________________________________________________________ (County) - ---------------------------------------------------------------------------------------------------------------------------------- 4. List the name and complete address of each incorporator: _________________________________________________________________________________________________________________________________ (Name) (Include: Street Address, City, State and Zip Code) _________________________________________________________________________________________________________________________________ (Name) (Include: Street Address, City, State and Zip Code) _________________________________________________________________________________________________________________________________ (Name) (Include: Street Address, City, State and Zip Code) - ---------------------------------------------------------------------------------------------------------------------------------- 5. The complete address of the corporation's principal office is: _________________________________________________________________________________________________________________________________ (Street Address) (City) (State/Zip Code) - ---------------------------------------------------------------------------------------------------------------------------------- 6. The corporation is for profit. - ---------------------------------------------------------------------------------------------------------------------------------- 7. If the document is not to be effective upon filing by the Secretary of State, the delayed effective date and time are: Date: _______________________ , ______________________ , Time ________________________ (Not to exceed 90 days.) - ---------------------------------------------------------------------------------------------------------------------------------- 8. Other provisions: - ---------------------------------------------------------------------------------------------------------------------------------- _____________________________ __________________________________________________________________ Signature Date Incorporator's Signature __________________________________________________________________ Incorporator's Name (typed or printed) SS-4417 (Rev. 2/02) Filing Fee: $100 RDA 1678 - ----------------------------------------------------------------------------------------------------------------------------------
EX-3.46 48 ex3-46.txt EXHIBIT 3.46 Exhibit 3.46
- ---------------------------------------------------------------------------------------------------------------------------------- State of Tennessee For Office Use Only [State Seal] CERTIFICATE OF LIMITED PARTNERSHIP Department of State Corporate Filings 312 Eighth Avenue North 6th Floor, William R. Snodgrass Tower Nashville, TN 37243 - ---------------------------------------------------------------------------------------------------------------------------------- Pursuant to the provisions of the Tennessee Revised Uniform Limited Partnership act, Section 61-2-201, the undersigned general partner(s) hereby execute(s) a certificate of limited partnership. - ---------------------------------------------------------------------------------------------------------------------------------- 1. The name of the limited partnership is: _________________________________________________________________________________________________________________________________ [NOTE: Pursuant to Tennessee Revised Uniform Limited Partnership Act, Section 61-2-102(1), each limited partnership name must contain the words "Limited Partnership" or the abbreviation "L.P."] - ---------------------------------------------------------------------------------------------------------------------------------- 2. The complete street address of the principal office is: ____________________________________________________________________ _________________________________________________________________________________________________________________________________ Street City/State County Zip Code - ---------------------------------------------------------------------------------------------------------------------------------- 3. The complete street address of the registered office in Tennessee is: _________________________________________________________________________________________________________________________________ Street City/State County Zip Code Registered agent ________________________________________________________________________________________________________________ - ---------------------------------------------------------------------------------------------------------------------------------- 4. Any additional information determined necessary by the undersigned general partner(s): _________________________________________________________________________________________________________________________________ - ---------------------------------------------------------------------------------------------------------------------------------- 5. If the document is not to be effective upon filing by the Secretary of State, the delayed effective date/time is: __________ ___________________________________ , _________________________ (date), ______________________________________ (time). [NOTE: A delayed effective date may not be later than the 90th day after the date this document is filed by the Secretary of State.] - ---------------------------------------------------------------------------------------------------------------------------------- 6. This limited partnership, which was previously formed on __________________________________________________________ , hereby elects to be governed by the Tennessee Revised Uniform Limited Partnership Act (applies only to limited partnerships created prior to January 1, 1989). - ---------------------------------------------------------------------------------------------------------------------------------- 7. The name, address, and signature of each general partner _________________________________________________________________________________________________________________________________ Name (type or printed) Address (Zip Code) _________________________________________________________________________________________________________________________________ Signature Signature Date _________________________________________________________________________________________________________________________________ Name (type or printed) Address (Zip Code) _________________________________________________________________________________________________________________________________ Signature Signature Date _________________________________________________________________________________________________________________________________ Name (type or printed) Address (Zip Code) _________________________________________________________________________________________________________________________________ Signature Signature Date [ ] Additional general partner(s) is/are listed on the attached ___________________________________ (number of page(s) which is/are fully incorporated herein by reference (check and complete if applicable). SS-4470 (Rev. 5/02) Filing Fee $100.00 RDA 2135 - ----------------------------------------------------------------------------------------------------------------------------------
EX-3.47 49 ex3-47.txt EXHIBIT 3.47 Exhibit 3.47
- ---------------------------------------------------------------------------------------------------------------------------- Form 201 [STATE SEAL] This space reserved for office use. (revised 6/01) Articles of Incorporation - ----------------------- Pursuant to Article 3.02 Return in Duplicate to: Texas Business Secretary of State Corporation Act P.O. Box 13697 Austin, TX 78711-3697 FAX: 512/463-5709 Filing Fee: $300 - ---------------------------------------------------------------------------------------------------------------------------- - ------------------------------------------------------------------------------------------------------------------------------ Article 1 - Corporate Name - ------------------------------------------------------------------------------------------------------------------------------ The name of the corporation is as set forth below: - ------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------ The name must contain the word "corporation," "company," "incorporated," or an abbreviation of one of these terms. The name must not be the same as, deceptively similar to or similar to that of an existing corporate, limited liability company, or limited partnership name on file with the secretary of state. A preliminary check for "name availability" is recommended. - ------------------------------------------------------------------------------------------------------------------------------ Article 2 - Registered Agent and Registered Office (Select and complete either A or B and complete C) - ------------------------------------------------------------------------------------------------------------------------------ [ ] A. The initial registered agent is a corporation (cannot be corporation named above) by the name of: - ------------------------------------------------------------------------------------------------------------------------------ OR - ------------------------------------------------------------------------------------------------------------------------------ [ ] B. The initial registered agent is an individual resident of the state whose name is set forth below: - ------------------------------------------------------------------------------------------------------------------------------ First Name M.I. Last Name Suffix - ------------------------------------------------------------------------------------------------------------------------------ C. The business address of the registered agent and the registered office address is: - ------------------------------------------------------------------------------------------------------------------------------ Street Address City TX Zip Code - ------------------------------------------------------------------------------------------------------------------------------ Article 3 - Directors - ------------------------------------------------------------------------------------------------------------------------------ The number of directors constituting the initial board of directors and the names and addresses of the person or persons who are to serve as directors until the first annual meeting of shareholders or until their successors are elected and qualified are set forth below: - ------------------------------------------------------------------------------------------------------------------------------ Director 1: First Name M.I. Last Name Suffix - ------------------------------------------------------------------------------------------------------------------------------ Street Address City State Zip Code - ------------------------------------------------------------------------------------------------------------------------------ Director 2: First Name M.I. Last Name Suffix - ------------------------------------------------------------------------------------------------------------------------------ Street Address City State Zip Code - ------------------------------------------------------------------------------------------------------------------------------ Director 3: First Name M.I. Last Name Suffix - ------------------------------------------------------------------------------------------------------------------------------ Street Address City State Zip Code - ------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------ Article 4 - Authorized Shares - ------------------------------------------------------------------------------------------------------------------------------ [ ] A. The total number of shares the corporation is authorized to issue is _____________ and the par value of each of the authorized shares is $_______________ - ------------------------------------------------------------------------------------------------------------------------------ OR (You must select and complete either option A or option B, do not select both.) - ------------------------------------------------------------------------------------------------------------------------------ [ ] B. The total number of shares the corporation is authorized to issue is _____________ and the shares shall have no par value. - ------------------------------------------------------------------------------------------------------------------------------ If the shares are to be divided into classes, you must set forth the designation of each class, the number of shares of each class, the par value (or statement of no par value), and the preferences, limitations, and relative rights of each class in the space provided for supplemental information on this form. - ------------------------------------------------------------------------------------------------------------------------------ Article 5 - Initial Capitalization - ------------------------------------------------------------------------------------------------------------------------------ The corporation will not commence business until it has received for the issuance of its shares consideration of the value of one thousand dollars ($1,000). - ------------------------------------------------------------------------------------------------------------------------------ Article 6 - Duration - ------------------------------------------------------------------------------------------------------------------------------ The period of duration is perpetual. - ------------------------------------------------------------------------------------------------------------------------------ Article 7 - Purpose - ------------------------------------------------------------------------------------------------------------------------------ The purpose for which the corporation is organized is for the transaction of any and all lawful business for which corporations may be incorporated under the Texas Business Corporation Act. - ------------------------------------------------------------------------------------------------------------------------------ Supplemental Provisions/Information - ------------------------------------------------------------------------------------------------------------------------------ Text Area [The attached addendum are incorporated herein by reference.] - ------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------ Incorporator - ------------------------------------------------------------------------------------------------------------------------------ The name and address of the incorporator is set forth below. - ------------------------------------------------------------------------------------------------------------------------------ Name: - ------------------------------------------------------------------------------------------------------------------------------ Street Address City State Zip Code - ------------------------------------------------------------------------------------------------------------------------------ Effective Date of Filing - ------------------------------------------------------------------------------------------------------------------------------ [ ] This document will become effective when the document is filed by the secretary of state. - ------------------------------------------------------------------------------------------------------------------------------ OR - ------------------------------------------------------------------------------------------------------------------------------ [ ] This document will become effective at a later date, which is not more than ninety (90) days from the date of its filing by the secretary of state. The delayed effective date is - ------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------ Execution - ------------------------------------------------------------------------------------------------------------------------------ The undersigned incorporator signs these articles of incorporation subject to the penalties imposed by law for the submission of a false or fraudulent document. - ------------------------------------------------------------------------------------------------------------------------------ - ------------------------------------------------------------------------------------------------------------------------------ Signature of incorporator - ------------------------------------------------------------------------------------------------------------------------------
Form 201--General Information (Articles of Incorporation--Profit) - ------------------------------------------------------------------------------------------------------------------------------------ The attached form is a standardized form designed to meet minimal statutory filing requirements pursuant to the relevant statutory provisions. This form and the information provided are not substitutes for the advice and services of an attorney and tax specialist. - ------------------------------------------------------------------------------------------------------------------------------------ o Article 1--Corporate Name: Provide a corporate name and organizational ending. If the name chosen is the same as or deceptively similar to, or similar to the name of an existing corporation, limited partnership, or limited liability company, the document cannot be filed. The administrative rules adopted for determining entity name availability (Texas Administrative Code, Title 1, Part 4, Chapter 79, Subchapter C) may be viewed at www.sos.state.tx.us/tac/index.html. If you wish the secretary of state to provide a preliminary determination on "name availability," you may call (512) 463-5555 or e-mail your name inquiry to corpinfo@sos.state.tx.us. A final determination cannot be made until the document is received and processed by the secretary of state. Do not make financial expenditures or execute documents utilizing the name "pre-cleared." Also note that the pre-clearance of a name or the issuance of a certificate of incorporation under a name does not authorize the use of a name in violation of another person's rights to the name. o Article 2--Registered Agent and Registered Office: The registered agent can be either an individual resident of the state (Option B) or a Texas corporation or foreign corporation with a certificate of authority to transact business in Texas (Option A). The corporation however may not be designated to serve as its own registered agent. A post office box is not sufficient as a registered office address unless the registered office is located in a town with a population of less than 5,000. o Article 3--Directors: A minimum of one director is required. A director must be a natural person; there are no residency requirements for directors. Please note that this form should not be used if you wish to form a close corporation or to form a corporation that is managed by a shareholders agreement. o Article 4--Authorized Shares: Shares represent ownership interest in the corporation. The total number of shares that the corporation will have authority to issue must be provided in the space provided in option A or option B of Article 4. Select and complete option A if your shares are to have a stated par value, or select and complete option B if the shares are without a stated par value. Option A--Par Value: "Par value" means the stated dollar amount assigned to a share. In general terms, it represents the minimum stated amount for which each share shall be issued. For example: If the corporation has authorized a total of 1,000 shares of common stock of $1.00 par value, and if payment for the share is to be made in cash, the corporation must receive at least $1.00 for each share issued. Do not state that the shares have $0 par value when you mean to indicate that the shares are to be without a stated par value (i.e., option B). Option B--No Par Value: Shares that are designated as having no par value may be issued for an amount of consideration determined by the board of directors. o Article 7--Purpose: This form creates a corporation with the general purpose of conducting any lawful business. If you wish to operate a non-profit organization, or to engage in a licensed activity when such license cannot be issued to a corporation, then you cannot utilize this form. o Supplemental Provisions: Additional space has been provided for additional text to an article within this form or to provide for additional articles to contain optional provisions.
o Incorporator: Only one incorporator is required for the formation of a corporation. An incorporator may be a natural person 18 years of age or older, or any corporation, partnership, or other entity; there are no residency requirements for an incorporator. o Effective Date: Articles of incorporation become effective as of the date of filing by the secretary of state. However, pursuant to Article 10.03 of the Texas Business Corporation Act, the effectiveness of the articles of incorporation may be delayed as of a date not more than ninety (90) days from the date of filing with the secretary of state. Please note that upon the filing of a document with a delayed effective date, the computer records of the secretary of state will be changed to show the filing of the document, the date of the filing, and the future date on which the document will be effective. In addition, at the time of such filing, the status of the entity will be shown as active on the records of the secretary of state. o Execution: The incorporator must sign the articles of incorporation. Prior to signing, please read the statements on this form carefully. A person commits an offense under the Texas Business Corporation Act, the Texas Limited Liability Company Act or the Texas Non-Profit Corporation Act if the person signs a document the person knows is false in any material respect with the intent that the document be delivered to the secretary of state for filing. The offense is a Class A misdemeanor. Payment and Delivery Instructions: Mail the completed form, together with the filing fee of $300 to the address shown in the heading of the form. Personal checks and MasterCard, Visa, and Discover credit cards are accepted in payment of the filing fee. Checks or money orders must be payable through a U.S. bank or financial institution and made payable to the secretary of state. Fees paid by credit card are subject to a statutorily authorized processing cost of 2.1% of the total fees. The delivery address is James Earl Rudder Office Building, 1019 Brazos, Austin, Texas 78701. Upon filing the document, the secretary of state will return the appropriate evidence of filing and a file stamped copy of the document, if a duplicate copy was provided for such purpose, to the submitter. The telephone number is (512) 463-5555, TDD: (800) 735-2989, FAX: (512) 463-5709.
EX-3.48 50 ex3-48.txt EXHIBIT 3.48 Exhibit 3.48 CERTIFICATE OF LIMITED PARTNERSHIP OF [NAME OF ENTITY] The undersigned, desiring to form a Texas limited partnership in accordance with the requirements of the Texas Revised Limited Partnership Act, Acts 1987, 70th Leg., Ch. 49, effective September 1, 1987, does hereby certify that: 1. The name of the limited partnership is __________________________ (the "Partnership"). 2. The address of the Partnership's principal office is ____________ ________________________________________. 3. The address of the Partnership's registered office is ___________ _____________________________ and the name of the Partnership's registered agent at such address is ____________________________. 4. The Partnership's general partner is __________________ , a ____ _______________ corporation, and its mailing and street address is _____________________________________________________________. 5. The Partnership shall dissolve upon, but not before, the first to occur of the following events: a) The dissolution of, bankruptcy of, appointment of a receive for, an assignment for the benefit of creditors by or against, or the institution of similar insolvency proceedings by or against the general partner; b) An election, confirmed in writing, by all of the general partners; or c) ______________________________, 20 __ IN WITNESS WHEREOF, the Partnership's general partner has executed this Certificate of Limited Partnership this ______ day of _________ , ___. GENERAL PARTNER [NAME] By:__________________________ Attest: _____________________ EX-3.49 51 ex3-49.txt EXHIBIT 3.49 Exhibit 3.49 [GRAPHIC OF SEAL OMITTED] COMMONWEALTH OF VIRGINIA STATE CORPORATION COMMISSION LLC-1011 (05/02) ARTICLES OF ORGANIZATION OF A DOMESTIC LIMITED LIABILITY COMPANY Pursuant to Chapter 12 of Title 13.1 of the Code of Virginia the undersigned states as follows: 1. The name of the limited liability company is __________________________________________________________________________________________________________________________. (The name must contain the words "limited company" or "limited liability company" or their abbreviations "L.C.", "LC", "L.L.C." or "LLC") 2. A. The name of the limited liability company's initial registered agent is __________________________________________________________________________________________________________________________. B. The registered agent is (mark appropriate box): (1) an INDIVIDUAL who is a resident of Virginia and [ ] a member or manager of the limited liability company. [ ] an officer or director of a corporation that is a member or manager of the limited liability company. [ ] a general partner of a general or limited partnership that is a member or manager of the limited liability company. [ ] a trustee of a trust that is a member or manager of the limited liability company. [ ] a member of the Virginia State Bar. OR (2) [ ] a domestic or foreign stock or nonstock corporation, limited liability company or registered limited liability partnership authorized to transact business in Virginia. 3. The limited liability company's initial registered office address, which is identical to the business office of the initial registered agent, is: ___________________________________________________________________________________________________________________________ (number/street) ____________________________________________________________________________________________________ VA __________________, (city or town) (zip) which is located in the [ ] city or [ ] county of ________________________________________________________________________________________________. 4. The limited liability company's principal office is located at ___________________________________________________________________________________________________________________________ (number/street) __________________________________________________________________________________________________________________________. (city or town) (state) (zip) 5. Signature: __________________________________________________________ _____________________________ (organizer) (date) __________________________________________________________ _____________________________ (printed name) (telephone number (optional)) SEE INSTRUCTIONS ON THE REVERSE
INSTRUCTIONS Section 13.1-1003 of the Code of Virginia requires that this document, except for the name, be in the English language, typewritten or printed in black, legible and reproducible. The document must be presented on uniformly white, opaque paper, free of visible watermarks and background logos. You can download this form from our website at www.state.va.us/scc/division/clk/index.htm. The limited liability company may not serve as its own registered agent. The location of the registered office must be identical to the business office of the registered agent. See ss. 13.1-1015 of the Code of Virginia. The address of the registered office must include a street address. A rural route and box number may only be used if no street address is associated with the registered office's location. A post office box is only acceptable for towns / cities that have a population of 2,000 or less if no street address or rural route and box number is associated with the registered office's location. State the name of the county or independent city in which the office is physically located. Counties and independent cities in Virginia are separate local jurisdictions. The principal office is the location at which a current list of the full name and last known address of each member of the limited liability company is kept, as well as the other limited liability company information and records specified in ss. 13.1-1028 of the Code of Virginia. The address of the principal office must include a street address. A rural route and box number may only be used if no street address is associated with the principal office's location. A post office box is only acceptable for towns / cities that have a population of 2,000 or less if no street address or rural route and box number is associated with the principal office's location. The document must be executed in the name of the limited liability company by the person forming the company (see ss. 13.1-1003 of the Code of Virginia). It is a Class 1 misdemeanor for any person to sign a document he knows is false in any material respect with intent that the document be delivered to the Commission for filing. Submit the original, signed articles to the Clerk of the State Corporation Commission, P.O. Box 1197, Richmond, Virginia 23218-1197, (Street address: 1300 East Main Street, Tyler Building, 1st Floor, Richmond, Virginia 23219), along with a check for the filing fee in the amount of $100.00, payable to the State Corporation Commission. PLEASE DO NOT SEND CASH. If you have any questions, please call (804) 371-9733 or toll-free in Virginia, 1-866-722-2551.
EX-3.50 52 ex3-50.txt EXHIBIT 3.50 Exhibit 3.50 [State Seal] COMMONWEALTH OF VIRGINIA LPA-73.11 STATE CORPORATION COMMISSION (05/02) CERTIFICATE OF LIMITED PARTNERSHIP This certificate of limited partnership is presented for filing pursuant to ss. 50-73.11 of the Code of Virginia. 1. The name of the limited partnership is __________________________________________________________________________. 2. The post office address, including the street and number, if any, of the specified office where the records shall be maintained pursuant to ss. 50-73.8 of the Code of Virginia is ___________________________________________________________________________ (number/street) ___________________________________________________________________________. (city or town) (state) (zip) 3. A. The initial registered agent's name is __________________________________. B. The registered agent is (mark appropriate box): (1) an INDIVIDUAL who is a resident of Virginia and [ ] a general partner of the limited partnership. [ ] an officer or director of a corporation that is a general partner of the limited partnership. [ ] a general partner of a general partner of the limited partnership. [ ] a member or manager of a limited liability company that is a general partner of the limited partnership. [ ] a trustee of a trust that is a general partner of the limited partnership. [ ] a member of the Virginia State Bar. OR (2) [ ] a domestic or foreign stock or nonstock corporation, limited liability company or registered limited liability partnership authorized to transact business in Virginia. 4. The business address of the initial registered agent is: ___________________________________________________________________________ (number/street) ________________________________________________ VA ______________________, (city or town) (zip) which is located in the [ ] city or [ ] county of _________________________. 5. The name and business address of each general partner is Name Address _____________________________ __________________________________________ __________________________________________ _____________________________ __________________________________________ __________________________________________ _____________________________ __________________________________________ __________________________________________ Check if applicable: [ ] The general partner(s)___________________________________________________ is (are) serving, without more, as a general partner of, or as a partner in a partnership which is a general partner of, a domestic or foreign limited partnership which does not otherwise transact business in this Commonwealth. (See ss. 50-73.61 and/or ss. 13.1-757 of the Code of Virginia.) [OVER] 6. The latest date upon which the limited partnership is to be dissolved and its affairs wound up is _____________________________________. 7. Signature(s) of general partner(s): __________________________________ ________________________________ ________ (signature) (printed name) (date) __________________________________ ________________________________ ________ (signature) (printed name) (date) __________________________________ ________________________________ ________ (signature) (printed name) (date) INSTRUCTIONS The certificate must be in the English language, typewritten or printed in black, legible and reproducible. See ss. 50-73.17 of the Code of Virginia. The document must be presented on uniformly white, opaque paper, free of visible watermarks and background logos.
You can download this form from our website at www.state.va.us/scc/division/clk/index.htm.
The name of the limited partnership must contain the words "Limited Partnership" or "a Limited Partnership," the abbreviation "L.P." or the designation "LP;" provided, however, that if the limited partnership is also applying for registered limited liability partnership status pursuant to ss. 50-73.132 of the Code of Virginia, the name must include either (1) (a) the words "limited partnership" or "a limited partnership," the abbreviation "L.P." or the designation "LP" and (b) the words "Registered Limited Liability Partnership" or "Limited Liability Partnership," the abbreviation "R.L.L.P." or "L.L.P." or the designation "RLLP" or "LLP," or (2) the words "Registered Limited Liability Limited Partnership" or "Limited Liability Limited Partnership," the abbreviation "R.L.L.L.P." or "L.L.L.P." or the designation "RLLLP" or "LLLP." See ss. 50-73.2 of the Code of Virginia. This certificate must be signed by all of the general partners. Any person may sign a certificate by an attorney-in-fact. Each person signing this statement must set forth his printed name next to his signature. A person signing on behalf of a general partner that is a business entity should set forth the business entity's name, his or her printed name, and the capacity in which he or she is signing on behalf of the business entity. As provided in ss. 50-73.15 C of the Code of Virginia, the execution of this certificate by a general partner constitutes an affirmation under the penalties of perjury that the facts stated herein are true. A registered limited liability partnership may not serve as its own registered agent. The address of the registered agent's business office must include a street address. A rural route and box number may only be used if no street address is associated with the location of the registered agent's business office. A post office box is only acceptable for towns / cities that have a population of 2,000 or less if no street address or rural route and box number is associated with the location of the registered agent's business office. State the name of the county or independent city in which the office is physically located. Counties and independent cities in Virginia are separate local jurisdictions. The specified office is the location at which a current list of the full name and last known address of each general partner of the limited partnership is kept, as well as the other limited partnership information and records specified in ss. 50-73.8 of the Code of Virginia. The address of the specified office must include a street address. A rural route and box number may only be used if no street address is associated with the specified office's location. A post office box is only acceptable for towns / cities that have a population of 2,000 or less if no street address or rural route and box number is associated with the specified office's location. Submit the original, signed certificate to the Clerk of the State Corporation Commission, P.O. Box 1197, Richmond, Virginia 23218-1197, (Street address: 1300 East Main Street, Tyler Building, 1st floor, Richmond, Virginia 23219), along with a check for the filing fee in the amount of $100.00, payable to the State Corporation Commission. PLEASE DO NOT SEND CASH. If you have any questions, please call (804) 371-9733 or toll-free in Virginia, 1-866-722-2551. EX-3.51 53 ex3-51.txt EXHIBIT 3.51 Exhibit 3.51 [NAME OF ENTITY] ---------------- BY-LAWS ------- ARTICLE I - OFFICES ------------------- 1.1 Registered Office: The registered office shall be in the County of _____________________, State of ____________________. 1.2 Other Offices: The corporation may also have offices at such other places both within and without the State of ________________________________ as the Board of Directors may from time to time determine or the business of the corporation may require. ARTICLE II - MEETINGS OF SHAREHOLDERS ------------------------------------- 2.1 Place of Meetings: All meetings of the shareholders for the election of directors shall be held in the City of ____________________, State of _______________________, at such place as may be fixed from time to time by the Board of Directors, or at such other place either within or without the State of _________________ as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of shareholders for any other purpose may be held at such time and place, within or without the State of __________________, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. 2.2 Date of Annual Meeting: Annual meetings of shareholders, commencing with the year ____, shall be held at such date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. 2.3 Notice of Annual Meeting: Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each shareholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. 2.4 Shareholders List: The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each shareholder and the number of shares registered in the name of each shareholder. Such list shall be open to the examination of any shareholders, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any shareholder who is present. 1 2.5 Special Meetings: Special meetings of the shareholders, for any purpose or purposes, unless otherwise prescribed by statute or by the Articles of Incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the Board of Directors, or at the request in writing of shareholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. 2.6 Notice of Special Meetings: Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each shareholder entitled to vote at such meeting. 2.7 Business Transacted at Special Meeting: Business transacted at any special meeting of shareholders shall be limited to the purposes stated in the notice. 2.8 Quorum: The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the shareholders for the transaction of business except as otherwise provided by statute or by the Articles of incorporation. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. 2.9 Vote Required: When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. 2.10 Voting: Unless otherwise provided in the Articles of Incorporation each shareholder shall at every meeting of the shareholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such shareholder, but no proxy shall be voted after three years from its date, unless the proxy provides for a longer period. At all elections of the directors of the corporation each shareholder having voting power shall be entitled to exercise the right to cumulative voting, but only if so provided in the Articles of Incorporation. 2 2.11 Action Without Meeting: Unless otherwise provided in the Articles of Incorporation, any action required to be taken at any annual or special meeting of shareholders of the corporation, or any action which may be taken at any annual or special meeting of such shareholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those shareholders who have not consented in writing. ARTICLE III - DIRECTORS ----------------------- 3.1 Number of Directors: The number of directors which shall constitute the whole Board shall be three. The directors shall be elected at the annual meeting of the shareholders, except as provided in Section 3.2 of these By-Laws, and each director elected shall hold office until his successor is elected and qualified. Directors need not be shareholders. 3.2 Vacancies: Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court may, upon application of any shareholder or shareholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. 3.3 Powers of Directors: The business of the corporation shall be managed by or under the direction of its Board of Directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the Articles of Incorporation or by these By-Laws directed or required to be exercised or done by the shareholders. 3.4 Place of Meetings: The Board of Directors of the corporation may hold meetings, both regular and special, either within or without the State of ____________________. 3.5 First Meeting: The first meeting of each newly elected Board of Directors shall be held at such time and place as shall be fixed by the vote of the shareholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the shareholders to fix the time or place of such first meeting of the newly elected Board of Directors, or in the event such meeting is not held at the time and place so fixed by the shareholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the Board of Directors or as shall be specified in a written waiver signed by all of the directors. 3 3.6 Regular Meetings: Regular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the Board. 3.7 Special Meetings: Special meetings of the Board may be called by the president on one days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. 3.8 Quorum; Vote Necessary: At all meetings of the Board, two directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board of Directors, except as may be otherwise specifically provided by statute or by the Articles of Incorporation. If a quorum shall not be present at any meeting of the Board of Directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. 3.9 Action Without Meeting: Unless otherwise restricted by the Articles of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without a meeting, if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minute of proceedings of the Board or committee. 3.10 Telephonic Communication: Unless otherwise restricted by the Articles of Incorporation or these By-Laws, members of the Board of Directors, or any committee designated by the Board of Directors, may participate in a meeting of the Board of Directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. 3.11 Committees of Directors: The Board of Directors may, by resolution passed by a majority of the whole Board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. 4 In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the Board of Directors, shall have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the Articles of Incorporation, adopting an agreement of merger or consolidation, recommending to the shareholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the shareholders a dissolution of the corporation or a revocation of a dissolution, or amending the By-Laws of the corporation; and, unless the resolution or the Articles of Incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. 3.12 Minute of Committees: Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required. 3.13 Compensation of Directors: Unless otherwise restricted by the Articles of Incorporation or these By-Laws, the Board of Directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. 3.14 Removal of Directors: Unless otherwise restricted by the Articles of Incorporation or by law, any director or the entire Board of Directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. ARTICLE IV - NOTICES -------------------- 4.1 Form: Whenever, under the provisions of the statutes or of the Articles of Incorporation or of these By-Laws, notice is required to be given to any director or shareholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or shareholders, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. 4.2 Waiver: Whenever any notice is required to be given under the provisions of the statutes or of the Articles of Incorporation or of these By-Laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. 5 ARTICLE V - OFFICERS -------------------- 5.1 Officers Required: The officers of the corporation shall be chosen by the Board of Directors and shall be a chief executive officer, a president, a vice president, a secretary and a treasurer. The Board of Directors may also choose additional vice presidents, and one or more assistant vice presidents, assistant secretaries and assistant treasurers. Any number of offices may be held by the same person, unless the Articles of Incorporation or these By-Laws otherwise provide. 5.2 Election by Directors: The Board of Directors at its first meeting after each annual meeting of shareholders shall choose the officers specified by Section 5.1. 5.3 Other Officers: The Board of Directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the Board. 5.4 Salaries: The salaries of all officers and agents of the corporation shall be fixed by the Board of Directors. 5.5 Term; Removal; Vacancy: The officers of the corporation shall hold office until their successors are chosen and qualified. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy occurring in any office of the corporation shall be filled by the Board of Directors. 5.6 Chief Executive Officer's Duties: The Chief Executive officer shall have the duties of general supervision over and direction of the affairs and management of the corporation, shall perform such other duties as may be assigned to him by the Board of Directors and shall see that all orders and resolutions of the Board of Directors are carried into effect. 5.7 President's Duties: The president shall have general and active management of the business of the corporation, shall perform such duties as may be assigned to him by the Board of Directors and shall see that all orders and resolutions of the Board of Directors are carried into effect. 5.8 Vice President's Duties: In the absence of the president or in the event of his inability or refusal to act, the vice president (or in the event there be more than one vice president, the vice presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice presidents shall perform such other duties and have such other powers as the Board of Directors may from time to time prescribe. 6 5.9 Secretary's Duties: The secretary shall attend all meetings of the Board of Directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the Board of Directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The Board of Directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. 5.10 Treasurer's Duties: The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all monies and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the Board of Directors. 5.11 Treasurer to Disburse Funds: He shall disburse the funds of the corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall render to the president and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. 5.12 Treasurer's Bond: If required by the Board of Directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. ARTICLE VI ---------- 6.1 Certificate of Stock: Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by, the chairman or vice chairman of the Board of Directors, or the president or a vice president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. Certificates may be issued for partly paid shares and in such case upon the face or back of the certificates issued to represent any such partly paid shares, the total amount of the consideration to be paid therefor, and the amount paid thereon shall be specified. 7 If the corporation shall be authorized to issue more than one class of stock, or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided in the _________________________________, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish without charge to each shareholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights or each class of stock or series thereof and the qualifications, limitations restrictions of such preferences and/or rights. 6.2 Signatures: Any of or all the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if it were such officer, transfer agent or registrar at the date of issue. 6.3 Lost Certificates: The Board of Directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. 6.4 Transfer of Stock: Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. 6.5 Fixing Record Date: In order that the corporation may determine the shareholders entitled to notice of or to vote at any meeting of shareholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of shareholders of record entitled to notice of or to vote at a meeting of shareholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. 8 6.6 Registered Shareholders: The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of _______________________. ARTICLE VII - GENERAL PROVISIONS -------------------------------- 7.1 Dividends: Dividends upon the capital stock of the corporation, subject to the provisions of the Articles of Incorporation, if any, may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the Articles of Incorporation. 7.2 Reserves: Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. 7.3 Annual Statement: The Board of Directors shall present at each annual meeting, and at any special meeting of the shareholders when called for by vote of the shareholders, a full and clear statement of the business and condition of the corporation. 7.4 Checks: All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the Board of Directors may from time to time designate. 7.5 Fiscal Year: The fiscal year of the corporation shall be fixed by resolution of the Board of Directors. 7.6 Seal: The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, ". The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. 9 ARTICLE VIII - INDEMNIFICATION ------------------------------ 8.1 Actions By Third Parties: The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. 8.2 Actions By or In the Right of the Corporation: The corporation shall indemnify any person who was or is party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the Court shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court shall deem proper. 8.3 Expenses of Successful Defense: To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 8.1 and 8.2 of these By-Laws, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorney's fees) actually and reasonably incurred by him in connection therewith. 8.4 Determination That Indemnification Is Proper: Any indemnification under Sections 8.1 and 8.2 of these By-Laws, (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 8.1 and 8.2 of these By-Laws. Such determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the shareholders. 10 8.5 Advances: Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in the specific case upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the corporation as authorized in this section. 8.6 Provisions Not Exclusive: The indemnification provided by this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any By-Law, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. 8.7 Insurance: The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article VIII. 8.8 Constituent Corporation: For purposes of this Article VIII, references to "the corporation" shall included, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify the directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. 8.9 Other Enterprises; Fines; Services: For purposes of this Article VIII, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Article VIII. 11 8.10 Continuation of Indemnification and Advancement of Expenses: The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE IX - AMENDMENTS ----------------------- 9.1 Amendments by Shareholders or Directors: These By-Laws may be altered, amended or repealed or new By-Laws may be adopted by the shareholders or by the Board of Directors, when such power is conferred upon the Board of Directors by the Articles of Incorporation at any regular meeting of the shareholders or of the Board of Directors or at any special meeting of the shareholders or of the Board of Directors if notice of such alteration, amendment, repeal or adoption of new By-Laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal By-Laws is conferred upon the Board of Directors by the Articles of Incorporation it shall not divest or limit the power of the shareholders to adopt, amend or repeal By-Laws. 12 EX-3.52 54 ex3-52.txt EXHIBIT 3.52 Exhibit 3.52 LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF ______________________________ This Limited Liability Company Operating Agreement (the "Agreement") is entered into as of this ________ day of _______________, __________ by _______________, a ________________ ("SOLE MEMBER"). WHEREAS, ________________________________ (the "Company") was formed on ____________________ upon the filing of __________________________________ with the __________________________ of the State of ___________________________. NOW THEREFORE, SOLE MEMBER by execution of this Agreement, hereby continues the Company as a limited liability company pursuant to the ________________________________, as amended from time to time (the "Act"), upon the following terms and conditions. 1. Name. The name of the limited liability company is ___________________. 2. Purpose. The Company is formed for the purpose of, and the nature of the business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which limited liability companies may be organized under the Act. 3. Fiscal Year. The fiscal year of the Company (the "fiscal year") shall end on the fiscal year end required for U.S. federal income tax purposes. SOLE MEMBER is authorized to make all elections for tax or other purposes as they may deem necessary or appropriate in such connection, including the establishment and implementation of transition periods. 4. Powers. In furtherance of its purposes, the Company shall have the power and is hereby authorized to do any and all acts necessary or convenient to carry out any and all of the objects and purposes of the Company and to perform all acts in furtherance thereof, including, without limitation, (i) to execute and deliver any and all documents and instruments which may be necessary or desirable to carry on the business of the Company, including, without limitation, any and all deeds, contracts and leases, and (ii) to take any and all other actions it deems necessary, desirable, convenient or incidental for the furtherance of the objects and purposes of the Company and shall have and may exercise all of the powers and rights conferred upon a limited liability company formed pursuant to the Act. 5. Registered Office. The address of the registered office of the Company in the State ___________________ of is _______________________. 1 6. Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the State of ______________________ are ___________________________________________. 7. Member. The name and mailing address of SOLE MEMBER is set forth on Exhibit A attached to this Agreement. 8. Designation of Managers. (i) SOLE MEMBER hereby agrees that the responsibility for managing the business and affairs of the Company shall be delegated to three (3) managers (each of such managers of the Company being hereinafter referred to individually as a "Manager" and collectively as the "Board") and hereby consents to the election of __________________, ___________________________, and __________________ as Managers of the Company. (ii) The Managers shall serve and continue in such office throughout the entire term of the Company unless sooner removed by written action of SOLE MEMBER by operation of law, by order or decree of any court of competent jurisdiction, or by voluntary resignation or upon the dissolution, liquidation and termination of a Manager. (iii) In the event of the resignation, removal or termination for any reason whatsoever of a Manager, the written consent of SOLE MEMBER shall be required to designate a new manager. (iv) The Board shall in each case act by a majority of Managers in office. The Board is hereby authorized to appoint one or more officers of the Company (each, an "Officer"), including, without limitation, a President, a Secretary, one or more Vice Presidents and one or more Assistant Vice Presidents and Assistant Secretaries. Each such Officer shall have delegated to him or her the authority and power to execute and deliver on behalf of the Company any and all such contracts, certificates, agreements, instruments and other documents, and to take any such action, as the Board deems necessary or appropriate, all as may be set forth in a written delegation of authority executed by the Board. The Officers shall serve at the pleasure of the Board, and the Board may remove any person as an Officer and/or appoint additional persons as Officers, as the Board deems necessary or desirable. Any person or entity dealing with the Company may conclusively presume that an Officer specified in such a written delegation of authority who executes a contract, certificate, agreement, instrument or other document on behalf of the Company has the full power and authority to do so and each such document shall, for all purposes, be duly authorized, executed and delivered by the Company upon execution by such Officer. By execution hereof, SOLE MEMBER hereby appoints as the initial Officers the persons specified in Exhibit B attached hereto, who shall hold the office set forth opposite his or her name. 2 9. Exculpation and Indemnification. In the event that SOLE MEMBER, or any of its direct or indirect partners, directors, officers, stockholders, employees, agents, affiliates or controlling persons, including, without limitation, any Manager or Officer (collectively, the "Indemnified Persons", each, including such member, an "Indemnified Person"), becomes involved, in any capacity, in any threatened, pending or completed, action, proceeding or investigation, in connection with any matter arising out of or relating to the Company's business or affairs, the Company will periodically reimburse such Indemnified Person for its legal and other expenses (including the cost of any investigation and preparation) incurred in connection therewith, provided that such Indemnified Person shall promptly repay to the Company the amount of any such reimbursed expenses paid to it if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company in connection with such action, proceeding or investigation as provided in the exception contained in the next succeeding sentence. To the fullest extent permitted by law, the Company also will indemnify and hold harmless an Indemnified Person against any losses, claims, damages, liabilities, obligations, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of any kind or nature whatsoever (collectively, "Costs"), to which such an Indemnified Person may become subject in connection with any matter arising out of or in connection with the Company's business or affairs, except to the extent that any such Costs result solely from the willful misfeasance, gross negligence or bad faith of such Indemnified Person. If for any reason (other than the willful misfeasance, gross negligence, or bad faith of such Indemnified Person) the foregoing indemnification is unavailable to such Indemnified Person, or insufficient to hold it harmless, then the Company shall contribute to the amount paid or payable by such Indemnified Person as a result of such Costs in such proportion as is appropriate to reflect not only the relative benefits received by the Company on the one hand and such Indemnified Person on the other hand but also the relative fault of the Company and such Indemnified Person, as well as any relevant equitable considerations. The reimbursement, indemnity and contribution obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have to any Indemnified Person and shall be binding upon and inure to the benefit of any successors, assigns, heirs and personal representatives of the Company and any Indemnified Person. The reimbursement, indemnity and contribution obligations of the Company under this Section 9 shall be limited to the Company's assets, and no member shall have any personal liability on account thereof. The foregoing provisions shall survive any termination of this Agreement. 10. Admission. SOLE MEMBER is hereby deemed admitted as the sole member of the Company upon its execution and delivery of this Agreement. 11. Allocation of Profits and Losses. The Company's profits and losses shall be allocated to SOLE MEMBER, as sole member. 12. Distributions. Distributions shall be made to SOLE MEMBER, as sole member. 3 13. Limited Liability. Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and neither the sole member nor any affiliate, director, officer, partner or controlling person of the sole member shall be obligated personally for any such debt, obligation or liability of the Company. 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF _______________, ALL RIGHTS AND REMEDIES BEING GOVERNED BY SAID LAWS, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. 15. Amendments. This Agreement may not be modified, altered, supplemented or amended except pursuant to a written agreement executed and delivered by the sole member. IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Limited Liability Company Operating Agreement as of the date first above written. [NAME OF SOLE MEMBER] SOLE MEMBER By: _________________________________ Name: Title: 4 EXHIBIT A --------- Sole Member Address - ----------- ------- 5 EXHIBIT B --------- OFFICER LIST 6 EX-3.53 55 ex3-53.txt EXHIBIT 3.53 Exhibit 3.53 [NAME OF LIMITED PARTNERSHIP] LIMITED PARTNERSHIP AGREEMENT This Limited Partnership Agreement is made as of this ________ day of _____________________ by and between the undersigned parties (the "Partners") in accordance with the __________________________________ of the State of _______________________ (the "Act"). The Partners, in consideration of the mutual promises contained herein and intending to be legally bound, agree as follows: SPECIFIC TERMS 1. The name of the Limited Partnership (the "Partnership") and the address of the Partnership's principal office are _________________________________________________________. 2. The name and address of the General Partner are _______________________________, a __________________________, ________________________________________________. 3. The name and address of the Limited Partner are _______________________________, a _________________________, or its designee, __________________________________. 4. The percentage interests and capital contributions of the Partners are as follows: General Partner Percentage Interest Capital Contribution --------------- ------------------- -------------------- [NAME] Limited Partner [NAME] 5. The date of formation of the partnership is __________________. GENERAL TERMS In addition to the above-specified Specific Terms, the Partners agree as follows: 1. The terms and conditions specified in the Limited Partnership Certificate for the Partnership attached hereto are incorporated herein by reference and shall be part of this Agreement. 2. To the extent not specified or incorporated herein, the Partnership shall be governed by the Act. 3. A Limited Partner's interest may be assigned in whole or in part at any time, and an assignee of a Limited Partner may become a Limited Partner, without the prior written consent of the General Partner. 4. All profits and losses of the Partnership shall be shared and borne by, and all distributions by the Partnership shall be made to, the Partners in accordance with their Percentage Interests, as set forth above. 5. The General Partner shall have the authority to act on all matters for and on behalf of the Partnership without the prior written consent of the Limited Partner. IN WITNESS WHEREOF, the Partners have duly executed this Partnership Agreement as of the day and year first written above, intending this Partnership Agreement to be effective as of the date of formation specified above. GENERAL PARTNER [NAME] By: ___________________________ Name: Title: Attest:___________________________ Name: Title: LIMITED PARTNER [NAME] By: ___________________________ Name: Title: Attest:___________________________ Name: Title: EX-3.54 56 ex3-54.txt EXHIBIT 3.54 Exhibit 3.54 LIMITED LIABILITY COMPANY AGREEMENT OF [NAME OF ENTITY] This Limited Liability Company Agreement (this "Agreement") of ________ _____________is entered into by the undersigned, as Members (the "Members"), and is effective as of ____________________. The Authorized Person, ____________________________, formed a limited liability company by filing the certificate of formation of__________________ __________the "Certificate of Formation") on ________________________, pursuant to, and in accordance with, the Delaware Limited Liability Company Act (6 Del.C. ss. 18-101, et seq.), as amended from time to time (the "Act"). The Members now wish to memorialize the Agreement with respect to the affairs and conduct of business of______________________________ as follows: 1. Name. The name of the limited liability company governed hereby is __________________________ (the "Company"). 2. Certificates.______________________________ , the Authorized Person within the meaning of the Act, has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of the State of Delaware (a copy of which is attached hereto as Exhibit A), as contemplated by ss.18-201 of the Act. The Authorized Person shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business. 3. Purpose. The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing including, but not limited to, the maintenance, management, investment and/or disposition, including sale or exchange, of property held by the Company. 4. Powers. (a) In furtherance of its purposes, but subject to all of the provisions of this Agreement, the Company shall have the power and is hereby authorized to take any and all actions necessary, appropriate, proper, advisable, incidental or convenient to and for the furtherance of the purposes set forth in Section 3, including, but not limited to, the power to: (i) conduct the business, carry on its operations and have and exercise the powers granted to a limited liability company by the Act in any state, territory, district or possession of the United States, or in any foreign country that may be necessary, convenient or incidental to the accomplishment of the purpose of the Company; (ii) acquire by purchase, lease, contribution of property or otherwise, own, hold, sell, convey, transfer or dispose of any real or personal property which may be necessary, convenient or incidental to the accomplishment of the purpose of the Company; (iii) act as a trustee, executor, nominee, bailee, director, officer, agent or in some other fiduciary capacity for any person or entity and to exercise all of the powers, duties, rights and responsibilities associated therewith except the Company shall not have any power to act as agent for Members or those certain limited partnerships in which the Company owns limited partner interests; (iv) take any and all actions necessary, convenient or appropriate as trustee, executor, nominee, bailee, director, officer, or other fiduciary, including the granting or approval of waivers, consents or amendments of rights or powers relating thereto and the execution of appropriate documents to evidence such waivers, consents or amendments; (v) purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in or obligations of domestic or foreign corporations, associations, general or limited partnerships (including, without limitation, the power to be admitted as a partner thereof and to exercise the rights and perform the duties created thereby), trusts, limited liability companies (including, without limitation, the power to be admitted as a member or appointed as a manager thereof and to exercise the rights and perform the duties thereof), or direct or indirect obligations of the United States or of any government, state, territory, governmental district or municipality or of any instrumentality of any of them; (vi) purchase, maintain, finance, improve, own, sell, convey, assign, mortgage, lease or demolish or otherwise dispose of any real or personal property which may be necessary, convenient or incidental to the accomplishment of the purposes of the Company; (vii) borrow money and issue evidences of indebtedness in furtherance of any or all of the purposes of the Company, and if necessary, secure the same by mortgage, pledge or other lien on the assets of the Company; (viii) prepay in whole or in part, refinance, recast, increase, modify or extend any indebtedness of the Company and, in connection therewith, execute any extensions, renewals or modifications of any mortgage or security agreement securing such indebtedness; (ix) lend money, invest and reinvest its funds, and take and hold real and personal property for the payment of funds so loaned or invested; (x) employ or otherwise engage employees, Managers, contractors, advisors, attorneys, consultants and other agents of the Company, define their respective duties, and pay reasonable compensation for their services; (xi) sue and be sued, complain and defend, and participate in administrative or other proceedings, in its name; (xii) pay, collect, compromise, litigate, arbitrate or otherwise adjust or settle any and all other claims or demands of or against the Company or hold such proceeds against the payment of contingent liabilities; 2 (xiii) indemnify any person in accordance with the Act and obtain any and all types of insurance as is deemed to be in the best interest of the Company; (xiv) negotiate, enter into, renegotiate, extend, renew, terminate, modify, amend, waive, execute, acknowledge or take any other action with respect to any lease, contract or security agreement in respect of any assets of the Company; (xv) cease its activities and cancel its Certificate of Formation; and (xvi) do such other things and engage in such other activities related to the foregoing as may be necessary, convenient or incidental to the conduct of the business of the Company, and have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act. (b) The Company may merge with, or consolidate into, another Delaware limited liability company or other business entity (as defined in ss.18-209(a) of the Act) upon the approval of the Manager (as that term is defined in Section 8 below). 5. Notice Address. The address of the Company for notice purposes will be___________________________________________________________________, or at such other location as may hereafter be determined by the Members. 6. Registered Office. The address of the registered office of the Company in the State of Delaware is_____________________________________________ _____________________________. 7. Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is ______________________. 8. Members; Managers. (a) The name of the Members are ______________________________________ _________________________________________________. The mailing addresses of the Members are as set forth under the authorized signatures below. Any action to be taken by Members under this Agreement shall be evidenced by the signature of an authorized officer of such Member._____________________________________________ shall serve as the manager (the "Manager"), of the Company and, as provided by Section 20 below, the management of the Company shall be vested solely in the Manager named in the Certificate of Formation. The Manager shall be bound by the terms of this Agreement, and the actions of __________________________________, in its capacity as Manager, shall be effected and conclusively evidenced by the action of an authorized officer of___________________________________________, in accordance with Section 20 below. (b) The Members shall have the power to remove the Manager at any time and name a successor thereto. 9. Limited Liability. (a) Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and the Authorized Person, the Manager and the Members (each a "Covered Person" and, collectively, the "Covered Persons") shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being an authorized person, a manager or a member of the Company. (b) Except as otherwise expressly required by law, the Members, in their capacity as Members of the Company, shall have no liability in excess of (i) the amount of its capital contributions to the Company, (ii) its share of any assets and undistributed profits of the Company, (iii) its obligation to make other payments expressly provided for it this Agreement, and (iv) the amount of any distributions wrongfully distributed to it. 3 10. Exculpation. (a) No Covered Person shall be liable to the Company, the Members or any other person or entity who has an interest in the Company for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith in connection with the formation of the Company on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person's gross negligence or willful misconduct. (b) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any person or entity as to matters the Covered Person reasonably believes are within such other person's or entity's professional or expert competence, including information opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses or any other facts pertinent to the existence and amount of assets from which distributions to Members might be properly paid. 11. Indemnification. To the full extent permitted by applicable law, each Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 11 shall be provided out of and to the extent of Company assets only, and the Members shall have no personal liability on account thereof. 12. Expenses. To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person in defending any claim, demand, action suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in Section 11 hereof. 13. Insurance. The Company may purchase and maintain insurance to the extent and in such amounts as the Manager shall, in its sole discretion, deem reasonable, on behalf of Covered Persons and such other persons as the Manager shall determine, against any liability that may be asserted against or expenses that may be incurred by any such person in connection with the activities of the Company or such indemnities, regardless of whether the Company would have the power to indemnify such person against such liability under the provisions of this Agreement. The Manager and the Company may enter into indemnity contracts with Covered Persons and such other persons as the Manager shall determine and adopt written procedures pursuant to which arrangements are made for the advancement of expenses and the funding of obligations under Section 12 hereof and containing such other procedures regarding indemnification as are appropriate. 4 14. Assignments. The Members may sell, assign, transfer, convey or otherwise dispose of all or any part of its limited liability company interest. 15. Resignation. The Members shall have the right to resign and the effect of which resignation shall be to cause the dissolution of the Company as set forth in Section 23 hereof. 16. Admission of Additional Member. One (1) or more additional Members of the Company may be admitted to the Company with the unanimous written consent of the Members. 17. Capital Contributions. (a) The Members shall be required to make additional capital contributions for the payment of the Company's expenses at the request of the Manager. (b) It is agreed by the Members that the percentage ownership interest of the Company shall be as follows: ______________________________ ______ % (c) The Members' interest in the Company shall for all purposes be personal property. 18. Allocation of Profits and Losses. Except as otherwise provided by Section 19(b), all profits and losses of the Company shall be allocated to the Members. 19. Distributions. (a) Distributions of any cash, shares or other property shall be made to the Members at the times and in the aggregate amounts determined by the Manager, except as provided in Section 19(b). (b) Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to any Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or other applicable law. 20. Management. (a) In accordance with Section 18-402 of the Act, management of the Company shall be solely vested in the Manager, as named in the Certificate of Formation, or otherwise provided for by designation pursuant to Section 8 hereof. (b) The Manager shall act in its capacity as Manager of the Company in the conduct of the business of the Company at duly noticed meetings at which a quorum of Directors of the Manager is present, through unanimous written consent of such Directors and/or through the acts of properly authorized officers of the Manager. The Manager shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by a manager of a limited liability company under the laws of the State of Delaware. 5 (c) The Manager may, in its sole discretion, appoint officers to run the day-to-day operations of the Company, subject to the supervision of the Manager. The officers of the Company, if deemed necessary by the Manager, shall include a President, a Treasurer and a Secretary and such other officers as the Manager may from time to time consider appropriate. Such officers, upon appointment, shall be immediately authorized to exercise such duties as customarily pertain to such offices as determined by the Manager. Any officer may be removed at any time at the sole discretion of the Manager and any vacancy occurring in any office of the Company shall be filled by the Manager. (d) The Manager, or his delegate, is authorized to undertake such acts at, or in advance of, the First Meeting of the Manager as are necessary to initiate and undertake the conduct of business of the Company, including, but not limited to, accepting a contribution of _____from ___________ ______________________in exchange for the issuance by the Company of a interest in the Company, respectively: accepting the assignment of those certain limited partnership interests (as more particularly described on Schedule 1 attached hereto) from ___________________ ___________________________; provided, however, that the Manager shall ratify, confirm and approve at the First Meeting of the Manager all such acts undertaken by, and through, the Manager's delegate. 21. Other Business. The Members and any person or entity affiliated with the Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others. The Company shall have no rights in or to such independent ventures or the income or profits therefrom by virtue of this Agreement. 22. Taxation. The Company, as a domestic eligible entity with two owners, shall make an election to be taxed as a corporation for U.S. federal income tax purposes. Such election shall be made pursuant to Treas. Reg. ss. 301.7701-3 on Internal Revenue Service Form 8832 properly executed and filed with the IRS. 23. Dissolution. (a) The Company shall dissolve, and its affairs shall be wound up, upon the first to occur of the following: (i) ____________________, 20__, (ii) the resignation of the Members, (iii) the written consent of the Members to dissolve the Company, (iv) upon the occurrence of any event that results in a Member ceasing to be a Member of the Company under the Act (including, without limitation, the death, retirement, resignation, expulsion, bankruptcy or dissolution of a Member or the occurrence of any other event which terminates the continued membership of a Member in the Company) or (v) the entry of a decree of judicial dissolution under Section 18-802 of the Act. (b) In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner) and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act. 24. Termination. The Company shall terminate when all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Members in the manner provided for in this Agreement and the Certificate of Formation shall have been canceled in the manner required by the Act. 6 25. Claims of the Members. The Members shall look solely to the Company's assets for the return of its capital contributions, and if the assets of the Company remaining after payment of or due provision for all debts, liabilities and obligations of the Company are insufficient to return such capital contributions, the Members shall have no recourse against the Company. 26. Separability of Provisions. Each provision of this Agreement shall be considered separable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforcability or illegality shall not impair the operation of or affect those portions of this Agreement which are valid, enforceable and legal. 27. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement. 28. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior understandings or agreements between the parties. 29. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws. 30. Amendments. This Agreement may not be modified, altered, supplemented or amended except pursuant to a written agreement executed and delivered by all of the Members. THE UNDERSIGNED, intending to be legally bound hereby, have duly executed this Agreement as of the date provided above. MEMBERS: MANAGER: - ------- ------- [NAME] [NAME] By: _______________________ By: _______________________ [NAME] By: _______________________ 7 EXHIBIT A TO LIMITED LIABILITY COMPANY AGREEMENT OF [NAME OF ENTITY] Certificate of Formation [See attached] SCHEDULE 1 TO LIMITED LIABILITY COMPANY AGREEMENT OF [NAME OF ENTITY] Limited Partnership Interests Assigned [See attached] EX-3.55 57 ex3-55.txt EXHIBIT 3.55 Exhibit 3.55 CERTIFICATE OF INCORPORATION OF Article One The name of the corporation is ______________________________________. Article Two The address of its registered office in the State of Delaware is _____ _________________________________________________________________________. The name of its registered agent at such address is _______________________________. Article Three The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. Article Four The corporation is authorized to issue Common Stock only. The total number of shares of Common Stock which the corporation shall have authority to issue is ____________________, and the par value of each such share is _________ _____________________________. Article Five The business and affairs of the corporation shall be managed by the Board of Directors. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal the By-laws of the corporation. The number of directors shall be fixed from time to time by, or in the manner provided in, the By-laws of the corporation and may be increased or decreased as therein provided. Directors of the corporation need not be elected by ballot unless required by the By-laws. Article Six Part I Right to Indemnification Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative ("proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of this corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the corporation to the fullest extent authorized by the General Corporation Law of the State of Delaware, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the corporation to provide broader indemnification rights than said law permitted the corporation to provide prior to such amendment), against all expenses, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith; provided, however, that the corporation shall indemnify any such person seeking indemnity in connection with a proceeding (or part thereof) initiated by such person only if the initiation of such proceeding (or part thereof) was authorized or approved by the Board of Directors of the corporation. Such right shall be a contract right and shall include the right to have the corporation include the right to the have the corporation pay, or repay such person for, expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that the payment of such expense incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of such proceeding, shall be made only an undertaking, by or on to repay all amounts so ultimately that such director or officer is not entitled to be indemnified under this Article Six or otherwise. The financial ability of any such person to make such repayment shall not be a prerequisite to the making of such payment of or for expenses. upon delivery to the corporation of behalf of such director or officer, advanced if it should be determined. Part II Right of Claimant To Bring Suit If a claim, (including a request for expenses) under Part I of this Article Six is not paid in full by the corporation within ninety days after a written request has been received by the corporation, the claimant may at any time thereafter bring suit against the corporation to recover the unpaid amount of the claim and, if successful, in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking has been tendered to the corporation) that the claimant has not met the standards of conduct which make it permissible under the General Corporation Law of the State of Delaware for the corporation to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the corporation. Neither the failure of the corporation (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standards of conduct set forth in said law, nor an actual determination by the corporation (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant had not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant had not met the applicable standard of conduct. The provisions of this Part II of this Article Six shall be applicable to all actions, suits or proceedings commenced after its adoption, whether such arise out of acts or omissions which occurred prior or subsequent to such adoption and shall continue as to a person who has ceased to be a director, officer, employee or agent of, or to render services for or at the request of the corporation, or as the case may be, its parent, or subsidiaries and shall inure to the benefit of the heirs, executors and administrators of such a person. Part III Independent Legal Counsel Independent legal counsel may be appointed by the Board of Directors, even if a quorum of disinterested directors is not available, or by a person designated by the Board of Directors. If independent legal counsel, so appointed, shall determine in a written opinion that indemnification is proper under this Article Six, indemnification shall be made without further action of the Board of Directors. Part IV Non-Exclusivity of Rights The rights conferred on any person by Parts I and II of this Article Six shall not be exclusive of any other right which such person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, as amended and restated, By-law, agreement, or vote of stockholders or disinterested directors or otherwise. -2- Part V Insurance The corporation may maintain insurance, at its expense, to protect itself and any such director, officer, employee, agent or other person, or all of them, of the corporation or another corporation, partnership, joint venture, trust or enterprise against any such expense, liability or loss, whether or not the corporation would have the power to indemnify such person against such expense, liability or loss under the General Corporation Law of the State of Delaware. Article Seven A director of this corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the Director's duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the General Corporation Law of the State of Delaware, as the same exists or hereafter may be amended, or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of Delaware hereafter is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the corporation, in addition to the limitation on personal liability provided herein, shall be limited to the fullest extent permitted by the amended General Corporation Law of Delaware. Any repeal or modification of this paragraph by the shareholders of the corporation shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of the corporation existing at the time of such repeal or modification. Article Eight Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions. of Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders of this corporation, as the case may be, and also on this corporation. Article Nine The initial members of the Board of Directors shall be _______________. The mailing address for ________________________________________________________ ___________________________________________. Article Ten The incorporator of the corporation is___________________________. The mailing address of______________________________________________________________ _________________________________________________________. Dated:_____________________ _______________________________ EX-3.56 58 ex3-56.txt EXHIBIT 3.56 Exhibit 3.56 BY-LAWS OF ARTICLE I -- OFFICES Section 1-1. Registered Office and Registered Agent. The Corporation shall maintain a registered office and registered agent within the State of Delaware, which may be changed by the Board of Directors from time to time. Section 1-2. Other Offices. The Corporation may also have offices at such other places, within or without the State of Delaware, as the Board of Directors may from time to time determine. ARTICLE II -- STOCKHOLDERS' MEETINGS Section 2-1. Place of Stockholders' Meetings. Meetings of stockholders may be held at such place, either within or without the State of Delaware, as may be designated by the Board of Directors from time to time. If no such place is designated by the Board of Directors, meetings of the stockholders shall be held at the registered office of the Corporation in the State of Delaware. Section 2-2. Annual Meeting. A meeting of the stockholders of the Corporation shall be held in each calendar year, commencing with the year _____, at a date, time and place fixed by the Board of Directors. At such annual meeting, there shall be held an election for a Board of Directors to serve for the ensuing year and until their respective successors are elected and qualified, or until their earlier resignation or removal. Section 2-3. Special Meetings. Special meetings of the stockholders, for any purpose or purposes prescribed in the notice of the meeting, may be called by the Board of Directors or the chief executive officer and shall be held at such place, on such date, and at such time as they or he shall fix. Section 2-4. Notice of Meetings and Adjourned Meetings. Written notice stating the place, date and hour of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, notice is given when deposited in the United States Mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the Corporation. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 2-5. Quorum. At all meetings of stockholders, the presence, in person or by proxy, of the holders of a majority of the outstanding shares entitled to vote shall constitute a quorum. The stockholders present at a duly organized meeting can continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. If a meeting cannot be organized because of the absence of a quorum, those present may, except as otherwise provided by law, adjourn the meeting to such time and place as they may determine. Section 2-6. Voting List; Proxies. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy. All proxies shall be executed in writing and shall be filed with the Secretary of the Corporation not later than the day on which exercised. No proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. Except as otherwise specifically provided by law, all matters coming before the meeting shall be determined by a vote by shares. All elections of Directors shall be by written ballot unless otherwise provided in the Certificate of Incorporation. Except as otherwise specifically provided by law, all other votes may be taken by voice unless a stockholder demands that it be taken by ballot, in which latter event the vote shall be taken by written ballot. Section 2-7. Informal Action by Stockholders. Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders or members, who have not consented in writing. ARTICLE III -- BOARD OF DIRECTORS Section 3-1. Number. The business and affairs of the Corporation shall be managed by a Board of Directors of no less than two (2) and no more than three (3) Directors as determined from time to time by the Board. Section 3-2. Place of Meeting. Meetings of the Board of Directors may be held at such place either within or without the State of Delaware, as a majority of the Directors may from time to time designate or as may be designated in the notice calling the meeting. Section 3-3. Regular Meetings. A regular meeting of the Board of Directors shall be held annually, immediately following the annual meeting of stockholders, at the place where such meeting of the stockholders is held or at such other place, date and hour as a majority of the newly elected Directors may designate. At such meeting the Board of Directors shall elect officers of the Corporation. In addition to such regular meeting, the Board of Directors shall have the power to fix, by resolution, the place, date and hour of other regular meetings of the Board. Section 3-4. Special Meetings. Special meetings of the Board of Directors shall be held whenever ordered by the President, by a majority of the members of the executive committee, if any, or by a majority of the Directors in office. -2- Section 3-5. Notices of Meetings of Board of Directors. (a) Regular Meetings. No notice shall be required to be given of any regular meeting, unless the same be held at other than the time or place for holding such meetings as fixed in accordance with Section 3-3 of these by-laws, in which event one (1) day's notice shall be given of the time and place of such meeting. (b) Special Meetings. At least one (1) day's notice shall be given of the time, place and purpose for which any special meeting of the Board of Directors is to be held. Section 3-6. Quorum. A majority of the total number of Directors shall constitute a quorum for the transaction of business, and the vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. If there be less than a quorum present, a majority of those present may adjourn the meeting from time to time and place to place and shall cause notice of each such adjourned meeting to be given to all absent Directors. Section 3-7. Informal Action by the Board of Directors. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. Section 3-8. Powers. (a) General Powers. The Board of Directors shall have all powers necessary or appropriate to the management of the business and affairs of the Corporation, and, in addition to the power and authority conferred by these by-laws, may exercise all powers of the Corporation and do all such lawful acts and things as are not by statute, these by-laws or the Certificate of Incorporation directed or required to be exercised or done by the stockholders. (b) Specific Powers. Without limiting the general powers conferred by the last preceding clause and the powers conferred by the Certificate of Incorporation and by-laws of the Corporation, it is hereby expressly declared that the Board of Directors shall have the following powers: (i) To declare dividends from time to time in accordance with law; -3- (ii) To confer upon any officer or officers of the Corporation the power to choose, remove or suspend assistant officers, agents or servants; (iii) To appoint any person, firm or corporation to accept and hold in trust for the Corporation any property belonging to the Corporation or in which it is interested, and to authorize any such person, firm or corporation to execute any documents and perform any duties that may be requisite in relation to any such trust; (iv) To adopt, from time to time, such stock option, stock purchase, bonus or other compensation plans for Directors, officers, employees and agents of the Corporation and its subsidiaries as it may determine; (v) To adopt, from time to time, such insurance, retirement, and other benefit plans for Directors, officers, employees and agents of the Corporation and its subsidiaries as it may determine; (vi) To appoint a person or persons to vote shares of another corporation held and owned by the Corporation; (vii) To fix the place, time and purpose of meetings of stockholders; (viii) To purchase or otherwise acquire for the Corporation any property, rights or privileges which the Corporation is authorized to acquire, at such prices, on such terms and conditions and for such consideration as it shall from time to time see fit, and, at its discretion, to pay for any property or rights acquired by the Corporation, either wholly or partly in money or in stocks, bonds, debentures or other securities of the Corporation; -4- (ix) To create, make and issue mortgages, bonds, deeds of trust, trust agreements and negotiable or transferable instruments and securities, secured by mortgage or otherwise, and to do every other act and thing necessary to effectuate the same; (x) To appoint and remove or suspend such subordinate officers, agents or servants, permanently or temporarily, as it may from time to time think fit, and to determine their duties, and fix, and from time to time change, their salaries or emoluments, and to require security in such instances and in such amounts as it thinks fit; and (xi) To determine who shall be authorized on the corporation's behalf to sign bills, notes, receipts, acceptances, endorsements, checks, releases, contracts and documents. Section 3-9. Compensation of Directors. Compensation of Directors and reimbursement of their expenses incurred in connection with the business of the Corporation, if any, shall be as determined from time to time by resolution of the Board of Directors. Section 3-10. Removal of Directors by Stockholders. The entire Board of Directors or any individual Director may be removed from office without assigning any cause by a majority vote of the holders of the outstanding shares entitled to vote. In case the Board of Directors or any one (1) or more Directors be so removed, new Directors may be elected at the same time. Section 3-11. Resignations. Any Director may resign at any time by submitting his written resignation to the Corporation. Such resignation shall take effect at the time of its receipt by the Corporation unless another time be fixed in the resignation, in which case it shall become effective at the time so fixed. The acceptance of a resignation shall not be required to make it effective. Section 3-12. Vacancies. Vacancies and newly created directorships resulting from any increase in the authorized number of Directors by the Board may be filled by a majority of the Directors then in office, although less than a quorum, or by a sole remaining Director, and each person so elected shall be a Director until his successor is elected and qualified or until his earlier resignation or removal. -5- Section 3-13. Participation by Conference Telephone. Directors may participate in regular or special meetings of the Board by telephone or similar communications equipment by means of which all other persons at the meeting can hear each other, and such participation shall constitute presence at the meeting. ARTICLE IV -- OFFICERS Section 4-1. Election and Office. The Corporation's principal officers shall consist of a Chairman of the Board, a President, one or more Vice Presidents, a Secretary and a Treasurer, all of whom shall be elected by the Board of Directors. The Board of Directors may elect such additional officers as it may deem proper, including one or more assistant and honorary officers. Any number of offices may be held by the same person. Section 4-2. Powers and Duties of the Chariman of the Board. Unless otherwise determined by the Board of Directors, the Chairman of the Board shall have the usual duties of the chief executive officer with general supervision over and direction of the affairs of the Corporation. In the exercise of these duties and subject to the limitations of the laws of the State of Delaware, these by-laws, and the actions of the Board of Directors, he may appoint, suspend and discharge employees and agents, shall preside at all meetings of the stockholders at which he shall be present, and shall preside at all meetings of the Board of Directors and, unless otherwise specified by the Board of Directors, shall be a member of all committees. He shall also do and perform such other duties as from time to time may be assigned to him by the Board of Directors. -6- Unless otherwise determined by the Board of Directors, the Chairman of the Board shall have full power and authority on behalf of the Corporation to attend and to act and to vote at any meeting of the stockholders of any corporation in which the Corporation may hold stock, and, at any such meeting, shall possess and may exercise any and all of the rights and powers incident to the ownership of such stock and which, as the owner thereof, the Corporation might have possessed and exercised. Section 4-3. Powers and Duties of the President. Unless otherwise determined by the Board of Directors, the President shall perform the duties of the Chairman of the Board when the Chairman is unable to do so. He shall preside at all meetings of the Board of Directors in the absence of the Chairman of the Board. He shall also do and perform such other duties as from time to time may be assigned to him by the Board of Directors. Section 4-4. Powers and Duties of Vice Presidents. Unless otherwise determined by the Board of Directors, each Vice President shall have the powers and perform the duties as shall be designated by the Board of Directors. Vice Presidents may be designated as having responsibility for a specific aspect of the Corporation's affairs. Section 4-5. Powers and Duties of the Secretary. Unless otherwise determined by the Board of Directors, the Secretary shall record all proceedings of the meetings of the Corporation, the Board of Directors and all committees, in books to be kept for that purpose, and shall attend to the giving and serving of all notices for the Corporation. He shall have charge of the corporate seal, the certificate books, transfer books and stock ledgers, and such other books and papers as the Board of Directors may direct. He shall perform all other duties ordinarily incident to the office of Secretary and shall have such other powers and perform such other duties as may be assigned to him by the Board of Directors. -7- Section 4-6. Powers and Duties of the Treasurer. Unless otherwise determined by the Board of Directors, the Treasurer shall have charge of all the funds and securities of the Corporation which may come into his hands. When necessary or proper, unless otherwise ordered by the Board of Directors, he shall endorse for collection on behalf of the Corporation checks, notes and other obligations, and shall deposit the same to the credit of the Corporation in such banks or depositories as the Board of Directors may designate and shall sign all receipts and vouchers for payments made to the Corporation. He shall sign all checks made by the Corporation, except when the Board of Directors shall otherwise direct. He shall enter regularly., in books of the Corporation to be kept by him for that purpose, a full and accurate account of all moneys received and paid by him on account of the Corporation. Whenever required by the Board of Directors, he shall render a statement of the financial condition of the Corporation. He shall at all reasonable times exhibit his books and accounts to any Director of the Corporation, upon application at the office of the Corporation during business hours. He shall have such other powers and shall perform such other duties as may be assigned to him from time. to time by the Board of Directors. He shall give such bond, if any, for the faithful performance of his duties as shall be required by the Board of Directors and any such bond shall remain in the custody of the President. Section 4-7. Resignations. Any officer may resign at any time by submitting his written resignation to the Corporation. Such resignation shall take effect at the time of its receipt by the Corporation, unless another time be fixed in the resignation, in which case it shall become effective at the time so fixed. The acceptance of a resignation shall not be required to make it effective. Section 4-8. Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof. Section 4-9. Removal. Subject to the provisions of any employment agreement approved by the Board of Directors, any officer of the Corporation may be removed at any time, with or without cause by the Board of Directors. -8- ARTICLE V -- CAPITAL STOCK Section 5-1. Stock Certificates. Shares of the Corporation shall be represented by certificates signed by or in the name of the Corporation by (a) the Chairman of the Board of Directors, or the President or a Vice President, and (b) the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, representing the number of shares registered in certificate form. If such certificate is countersigned (i) by a transfer agent other than the Corporation or its employee, or (ii) by a registrar other than the Corporation or its employee, the signatures of the officers of the Corporation may be facsimiles. In base any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the date of issue. Section 5-2. Determination of Stockholders of Record. The Board of Directors may fix, in advance, a record date to determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action. Such date shall be not more than sixty (60) nor less than ten (10) days before the date of any such meeting, nor more than sixty (60) days prior to any other action. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given; or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 5-3. Transfer of Shares. Transfer of shares shall be made only upon the transfer books of the Corporation kept at an office of the Corporation, or by transfer agents designated to transfer shares of stock of the Corporation. Except where a certificate is issued in accordance with Section 5-4 of these by-laws, an outstanding certificate for the number of shares involved shall be surrendered for cancellation before a new certificate is issued therefor. Section 5-4. Lost, Stolen or Destroyed Share Certificates. The Corporation may issue a new certificate of stock or uncertified shares in place of any certificate therefore issued by it, alleged to have been lost, stolen or destroyed, and the Corporation may require the owner of the lost, stolen, or destroyed certificate, or his legal representative to give the Corporation a bond sufficient to indemnify it against claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares. -9- ARTICLE VI -- NOTICES Section 6-1. Contents of Notice. Whenever any notice of a meeting is required to be given pursuant to these by-laws or the Certificate of Incorporation or otherwise, the notice shall specify the place, day and hour of the meeting and, in the case of a special meeting or where otherwise required by law, the general nature of the business to be transacted at such meeting. Section 6-2. Method of Notice. All notices shall be given to each person entitled thereto, either personally or by sending a copy thereof through the mail or by telegraph, charges prepaid, to his address as it appears on the records of the Corporation, or supplied by him to the Corporation for the purpose of notice. If notice is sent by mail or telegraph, it shall be deemed to have been given to the person entitled thereto when deposited in the United States Mail or with the telegraph office for transmission. Section 6-3. Waiver of Notice. Whenever notice is required to be given under any provision of law or of the Certificate of Incorporation or by-laws of the Corporation, a written waiver, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, Directors, or members of a committee of Directors need be specified in any written waiver of notice unless so required by the Certificate of Incorporation. ARTICLE VII -- SEAL The form of the seal of the Corporation, called the corporate seal of the Corporation, shall be as impressed adjacent hereto. ARTICLE VIII -- FISCAL YEAR The Board of Directors shall have the power by resolution to fix the fiscal year of the Corporation. If the Board of Directors shall fail to do so, the President shall fix the fiscal year. ARTICLE IX -- RELIANCE UPON BOOKS, REPORTS AND RECORDS Each Director, each member of any committee designated by the Board of Directors, and each officer of the Corporation, shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation, including reports made to the Corporation by any of its officers, by an independent certified public accountant, or by an appraiser selected with reasonable care. ARTICLE X -- TIME PERIODS In applying any provision of these by-laws which require that an act be done or not done within a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included. ARTICLE XI -- AMENDMENTS These By-laws, original or as amended, may be adopted, amended, altered or repealed by the stockholders entitled to vote thereon at any regular or special meeting or by the Board of Directors as provided in the Certificate of Incorporation. The fact that such power has been so conferred upon the Board of Directors shall not divest the stockholders of the power nor limit their power to adopt, amend or repeal by-laws. ARTICLE XII -- INTERPRETATION OF BY-LAWS All words, terms and provisions of these by-laws shall be interpreted and defined by and in accordance with the General Corporation Law of the State of Delaware, as amended, and as amended from time to time hereafter. -10- EX-3.57 59 ex3-57.txt EXHIBIT 3.57 Exhibit 3.57 BYLAWS OF ----------------- ARTICLE I - STOCKHOLDERS Section 1. Annual Meeting. An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place within Delaware, on such date, and at such time as the Board of Directors shall each year fix, which date shall be within thirteen months subsequent to, initially, the date of incorporation, and thereafter, the most recent annual meeting of stockholders. Section 2. Special Meetings. Special meetings of the stockholders, for any purpose or purposes prescribed in the notice of the meeting, may be called by the Board of Directors, the Chairperson or the President or as otherwise provided by law or the Certificate of Incorporation and shall be held at such place within Delaware, on such date, and at such time as they or he or she shall fix, and a majority of the stockholders may call a special meeting in accordance with Section 4 of Article II of these bylaws. Section 3. Notice of Meetings. Written notice of the place, date and time of all meetings of the stockholders shall be given, not less than ten nor more than sixty days before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here and hereinafter, as required from time to time by the Delaware General Corporation Law or the Certificate of Incorporation of the Corporation). When a meeting is adjourned to another place, date or time, written notice need not be given of the adjourned meeting if the place, date and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than thirty days after the date for which the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting. Section 4. Quorum. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law. If a quorum shall fail to attend any meeting, the Chairperson of the meeting or the holders of a majority of the shares of the stock entitled to vote who are present, in person or by proxy, may adjourn the meeting to another place within Delaware, date, or time. If a notice of any adjourned special meeting of stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present constituting a quorum, then except as otherwise required by law, those present at such adjourned meeting shall constitute a quorum, and all matters shall be determined by a majority of the votes cast at such meeting. Section 5. Organization. The Chairperson of the Board or, in the absence of such Chairperson, the President of the Corporation or, in the President's absence, such person as may be chosen by the Board, or if not so chosen, as selected by holders of a majority of the shares entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholders and act as Chairperson of the meeting. In the absence of the Secretary of the Corporation, the Secretary of the meeting shall be such person as the Chairperson of the meeting appoints. Section 6. Conduct of Business. The Chairperson of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seem to him or her in order. Section 7. Proxies and Voting. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing filed in accordance with the procedure established for the meeting. Each stockholder shall have one vote for every share of stock entitled to vote which is registered in such stockholder's name on the record date for the meeting, except as otherwise provided herein or required by law. All voting, including on the election of directors, but excepting where otherwise required by law, may be by a voice vote; provided, however, that upon demand therefor by a stockholder entitled to vote or such stockholder's proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be required under the procedure established for the meeting. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the Chairperson of the meeting. No proxy shall be voted on or after three (3) years from its date, unless the proxy provides for a longer period. All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be determined by a majority of the votes cast. 2 Section 8. Stock List. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged in alphabetical order for each class of stock and showing the address of each such stockholder and the number of shares registered in such stockholder's name, shall be open to the examination of any such stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or if not so specified, at the place where the meeting is to be held. The stock list shall also be kept at the place of the meeting during the whole time thereof and shall be open to the examination of any such stockholder who is present. This list shall presumptively determine the identity of the stockholders entitled to vote at the meeting and the number of shares held by each of them. Section 9. Consent of Stockholders in Lieu of Meeting. Any action required to be taken at any annual or special meeting of stockholders of the Corporation, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. ARTICLE II - BOARD OF DIRECTORS Section 1. Number and Term of Office. The number of directors who shall constitute the whole Board shall be such number as the Board of Directors shall at the time have designated, except that in the absence of any such designation, such number shall be five (5). Each director shall be elected for a term of one year and until such director's successor is elected and qualified, except as otherwise provided herein or required by law. Whenever the authorized number of directors is increased between annual meetings of the stockholders, a majority of the directors then in office shall have the power to elect such new directors for the balance of a term and until their successors are elected and qualified. Any decrease in the authorized number of directors shall not become effective until the expiration of the term of the directors then in office unless, at the time of such decrease, there shall be vacancies on the Board which are being eliminated by the decrease. Section 2. Vacancies. If the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, a majority of the directors remaining in office, although less than a quorum, may elect a successor for the unexpired term and until such director's successor is elected and qualified. Section 3. Regular Meetings. Regular meetings of the Board of Directors shall be held at such place or places within Delaware, on such date or dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required. 3 Section 4. Special Meetings. Special meetings of the Board of Directors may be called only by the Chairperson, the President, or their respective delegates, a majority of the directors or a majority of the stockholders and shall be held at such place within Delaware, on such date, and at such time as the authorized person(s) calling such meeting shall fix. Notice of the place, date, and time of each such special meeting shall be given each director by whom it is not waived by mailing written notice not less than five days before the meeting or by telegraphing, telecopying or sending by overnight courier the same not less than twenty-four hours before the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting. Section 5. Quorum. At any meeting of the Board of Directors, a majority of the total number of the whole Board shall constitute a quorum for all purposes. If a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to any place within Delaware, date, or time, without further notice or waiver thereof. Section 6. Participation in Meetings by Conference Telephone. Notwithstanding any provision of these bylaws to the contrary, members of the Board of Directors, or of any committee thereof, may participate in a meeting of such Board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting; provided that a majority of the quorum is physically present in Delaware. Section 7. Chairperson of the Board. The Board of Directors shall elect, at its original meeting and each annual meeting, a Chairperson of the Board (the "Chairperson") who shall be a director and who shall hold office until the next annual meeting of the Board and until such Chairperson's successor is elected and qualified or until such Chairperson's earlier resignation or removal by act of the Board. The Chairperson shall preside at meetings of the stockholders and the Board. In the absence of the Chairperson, the President shall preside at meetings of the stockholders and the Board, or in the President's absence, such person as designated by the Board of Directors in accordance with these bylaws. Section 8. Conduct of Business. At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board may from time to time determine, and all matters shall be determined by the vote of a majority of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors. Section 9. Compensation of Directors. Directors may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as directors, including, without limitation, their services as members of committees of the Board of Directors. Section 10. Removal of Directors. Any director of the Corporation may be removed at any time, with or without cause, by a majority vote of the stockholders. 4 ARTICLE III - COMMITTEES Section 1. Committees of the Board of Directors. The Board of Directors, by a vote of a majority of the whole Board, may from time to time designate committees of the Board, with such lawfully delegable powers and duties as it thereby confers, to serve at the pleasure of the Board and shall, for those committees and any others provided for herein, elect a director or directors to serve as the member or members, designating, if it desires, other directors as alternate members who may replace any absent or disqualified member at any meeting of the committee. Any committee so designated may exercise the power and authority of the Board of Directors to declare a dividend or to authorize the issuance of stock if the resolution which designates the committee or a supplemental resolution of the Board of Directors shall so provide. In the absence or disqualification of any member of any committee and any alternate member in such member's place, the member or members of the committee present at the meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may by unanimous vote appoint another member of the Board of Directors to act at the meeting in the place of the absent or disqualified member. The Board of Directors may, from time to time, suspend, alter, continue or terminate any committee or the powers and functions thereof. Section 2. Officers' Committees. Subject to the approval of the Board, the Chairperson may appoint, or may provide for the appointment of, committees consisting of officers or other persons, with chairpersonships, vice chairpersonships and secretaryships and such duties and powers as the Chairperson may, from time to time, designate and prescribe. The Board or the Chairperson may, from time to time, suspend, alter, continue or terminate any of such committees or the powers and functions thereof. Section 3. Conduct of Business. Each committee may determine the procedural rules for meeting and conducting its business and shall act in accordance therewith, except as otherwise provided herein or required by law. Adequate provision shall be made for notice to members of all meetings; one-third of the members shall constitute a quorum unless the committee shall consist of one or two members, in which event one member shall constitute a quorum; and all matters shall be determined by a majority vote of the members present. Action may be taken by any committee without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of such committee. ARTICLE IV - OFFICERS Section 1. Generally. The officers of the Corporation shall consist of a President, a Secretary, a Treasurer and such other officers, including, for example, Vice Presidents, Assistant Treasurers and Assistant Secretaries, as may from time to time be appointed by the Board of Directors. Officers shall be elected by the Board of Directors which shall consider that subject at its first meeting after every annual meeting of stockholders. Each officer shall hold office until such officer's successor is elected and qualified or until such officer's earlier resignation or removal. One person may hold more than one of the offices specified in this section and may have such other titles as the Board of Directors may determine. Section 2. President. The President shall be the chief executive officer of the Corporation. Subject to the provisions of these bylaws and to the direction of the Board of Directors, the President shall have the responsibility for the general management and control of the business and affairs of the Corporation and shall perform all duties and have all powers which are commonly incident to the office of chief executive or which are delegated to the President by the Board of Directors. The President shall have power to sign all stock certificates, contracts and other instruments of the Corporation which are authorized and shall have general supervision and direction of all of the other officers, employees and agents of the Corporation. 5 Section 3. Vice President. There may be such number of Vice Presidents as the Board of Directors shall appoint. Any such Vice President shall have such powers and duties as may be delegated to the Vice President by the Board of Directors. A Vice President may be designated by the Board of Directors to perform the duties and exercise the powers of the President in the event of the President's absence or disability. In the absence of the Chairperson and the President, one Vice President so designated by the Board of Directors shall preside at meetings of the stockholders and the Board of Directors. Section 4. Treasurer/Assistant Treasurer. The Treasurer shall have the responsibility for maintaining the financial records of the Corporation and shall have custody of all monies and securities of the Corporation. The Treasurer shall make such disbursements of the funds of the Corporation as are authorized and shall render from time to time an account of all such transactions and of the financial condition of the Corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time prescribe. The Board of Directors may also elect an Assistant Treasurer, if deemed necessary or appropriate, who shall have such powers and duties of the Treasurer, as determined by the Board of Directors. Section 5. Secretary/Assistant Secretary. The Secretary shall issue all authorized notices for, and shall keep minutes of, all meetings of the stockholders and the Board of Directors. The Secretary shall have charge of the corporate books and shall perform such other duties as the Board of Directors may from time to time prescribe. The Board of Directors may also elect an Assistant Secretary, if deemed necessary or appropriate, who shall have such powers and duties of the Secretary, as determined by the Board of Directors. Section 6. Delegation of Authority. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof. Section 7. Removal. Any officer of the Corporation may be removed at any time, with or without cause, by the Board of Directors. Section 8. Action with Respect to Securities of Other Corporations. Unless otherwise directed by the Board of Directors, the President or any Vice President, or their respective delegates, shall have power to vote and otherwise act on behalf of the Corporation, in person or by proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other corporation in which this Corporation may hold securities and otherwise to exercise any and all rights and powers which this Corporation may possess by reason of its ownership of securities in such other corporation. 6 ARTICLE V - STOCK Section 1. Certificates of Stock. Each stockholder shall be entitled to a certificate signed by, or in the name of the Corporation by, the President and the Secretary, or such other officers as authorized by the Board, certifying the number of shares owned by such stockholder. Section 2. Transfers of Stock. Transfers of stock shall be made only upon the transfer books of the Corporation kept at an office of the Corporation or by transfer agents designated to transfer shares of the stock of the Corporation. Except where a certificate is issued in accordance with Section 4 of this Article V, an outstanding certificate for the number of shares involved shall be surrendered for cancellation before a new certificate is issued therefor. Section 3. Record Date. In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. Section 4. Lost, Stolen or Destroyed Certificates. In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity. Section 5. Regulations. The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors may establish. 7 ARTICLE VI - PURPOSES AND POWERS Section 1. Purposes and Powers. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware; provided that the Corporation's activities shall be confined to the maintenance and management of its intangible investments and the collection and distribution of the income from such investments or from tangible property physically located outside Delaware, all as defined in, and in such manner to qualify for exemption from income taxation under, Section 1902(b)(8) of Title 30 of the Delaware Code, or under the corresponding provision of any subsequent law; provided further that the Corporation shall be empowered to conduct such other activities as permitted by said Section 1902(b)(8) or the corresponding provision of any subsequent law in such manner to qualify for exemption from income taxation under said Section 1902(b)(8) or the corresponding provision of any subsequent law. For purposes of this Section "intangible investments" shall include, without limitation, investments in stocks, bonds, notes and other debt obligations (including debt obligations of affiliated corporations), patents, patent applications, trademarks, trade names and similar types of intangible assets. ARTICLE VII - INDEMNIFICATION AND INSURANCE Section 1. Scope. Except as prohibited by law, every person shall be entitled as of right to be indemnified by the Corporation against reasonable expense and any liability paid or incurred by such person in connection with any actual or threatened claim, action, suit or proceeding, civil, criminal, administrative, investigative or other, whether brought by or in the right of the Corporation or otherwise, by reason of such person being or having been a director or officer of the Corporation or by reason of the fact that such officer or director of the Corporation is or was serving at the request of the Corporation as a director, officer, employee, fiduciary or other representative of another corporation, partnership, joint venture, trust, employee benefit plan or other entity (such claim, action, suit or proceeding hereinafter being referred to as "action"). Such indemnification shall include the right to have expenses incurred by such person in connection with an action paid in advance by the Corporation prior to final disposition of such action, subject to subsequent determination of the right to be so indemnified. Persons who are not directors or officers of the Corporation may be similarly indemnified in respect of service to the Corporation or to another such entity at the request of the Corporation to the extent the Board of Directors at any time determines that such person is entitled to the benefits of this Article. As used herein, "expense" shall include fees and expenses of counsel selected by such person; and "liability" shall include amounts of judgments, excise taxes, fines and penalties, and amounts paid in settlement. Section 2. Means of Indemnification. The Corporation may purchase and maintain insurance to protect itself and any person eligible to be indemnified hereunder against any liability or expense asserted or incurred by such person in connection with any action, whether or not the Corporation would have the power to indemnify such person against such liability or expense by law or under this Article. The Corporation may create a trust fund, grant a security interest, cause a letter of credit to be issued or use other means (whether or not similar to the foregoing) to ensure the payment of such sums as may become necessary to effect indemnification as provided herein. Section 3. Agreement for Indemnification. The Corporation shall have the express authority to enter into such agreements as the Board of Directors deems appropriate for the indemnification, including advancement of expenses, of present or future directors and officers of the Corporation and other persons in connection with their service to, or status with, the Corporation or any other corporation, partnership, joint venture, trust, employee benefit plan or other entity with whom such director, officer or other person is serving at the request of the Corporation. 8 Section 4. Nature of Right of Indemnification. The right of indemnification provided for herein (i) shall not be deemed exclusive of any other rights to which those seeking indemnification hereunder may be entitled, (ii) shall be deemed to create contractual rights in favor of persons entitled to indemnification hereunder, (iii) shall continue as to persons who have ceased to have the status pursuant to which they were entitled or were determined to be entitled to indemnification hereunder and shall inure to the benefit of the heirs and legal representatives of persons entitled to indemnification hereunder and (iv) shall be applicable to actions, suits or proceedings commenced after the adoption hereof, whether arising from acts or omissions occurring before or after the adoption hereof. The rights of indemnification provided for herein may not be amended, modified or repealed so as to limit in any way the indemnification provided for herein with respect to any acts or omissions occurring prior to the effective date of any such amendment, modification or repeal. Section 5. Non-Payment by Corporation. In the event any indemnification or advance of expenses to which a person is entitled under this Article is not paid in full by the Corporation within 30 days after a written claim has been received by the Corporation, the claimant may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. The Corporation shall promptly reimburse the claimant for all costs and expenses, including attorneys' fees, incurred in bringing and pursuing such action, subject to the Corporation's right to recover the amount of such reimbursement in the event and to the extent that it is ultimately determined by the final judgment of a court of competent jurisdiction that the claimant is not entitled to indemnification under this Article. ARTICLE VIII - NOTICES Section 1. Notices. Except as otherwise specifically provided herein or required by law, all notices required to be given to any stockholder, director, officer, employee or agent, shall be in writing and may in every instance be effectively given by hand delivery to the recipient thereof, by depositing such notice in the mails, postage paid, by sending such notice by Federal Express or similar overnight courier, by sending such notice by prepaid telegram or mailgram or by sending such notice by telecopy or similar facsimile transmission. Any such notice shall be addressed to such stockholder, director, officer, employee, or agent at his or her last known address as the same appears on the books of the Corporation. The time when such notice is received, if hand delivered, or dispatched, if delivered through the mails, by overnight courier, by telegram or mailgram, or by telecopy or similar facsimile shall be the time of the giving of the notice. Section 2. Waivers. A written waiver of any notice, signed by a stockholder, director, officer, employee or agent, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, employee or agent. Neither the business nor the purpose of any meeting need be specified in such a waiver. ARTICLE IX - MISCELLANEOUS Section 1. Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the Corporation, which seal shall be in the charge of the Secretary. Duplicates of the seal may be kept and used by the Treasurer or Secretary or by an Assistant Secretary or Assistant Treasurer. Section 2. Reliance upon Books, Reports and Records. Each director, each member of any committee designated by the Board of Directors, and each officer of the Corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the Corporation, including reports made to the Corporation by any of its officers, by an independent certified public accountant, or by an appraiser selected with reasonable care. Section 3. Fiscal Year. The fiscal year of the Corporation shall be as fixed by the Board of Directors. Section 4. Time Periods. In applying any provision of these bylaws which require that an act be done or not done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included. ARTICLE X - AMENDMENTS Section 1. Amendments. These bylaws may be amended, suspended or repealed in a manner consistent with law at any regular or special meeting of the Board of Directors by vote of a majority of the entire Board or at any stockholders meeting called and maintained in accordance with Article I of these bylaws. Such amendment, suspension or repeal may be evidenced by resolution or as the Board may otherwise deem appropriate. 9 EX-3.58 60 ex3-58.txt EXHIBIT 3.58 Exhibit 3.58 CERTIFICATE OF INCORPORATION OF ______________________________________ FIRST: The name of the corporation is_______________________________ (the "Corporation"). SECOND: The registered office of the Corporation in the State of Delaware is located at_____________________________________________________. The registered agent of the Corporation at that address is ____________________. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under, the General Corporation Law of the State of Delaware; provided that the Corporation's activities shall be confined to ________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________. FOURTH: The Corporation shall have authority to issue_______________ _________shares of common stock, having a par value of________________per share. FIFTH: The Corporation shall indemnify directors and officers of the Corporation to the fullest extent permitted by law. SIXTH: The directors of the Corporation shall incur no personal liability to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director: provided, however, that the directors of the Corporation shall continue to be subject to liability (i) for any breach of their duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of the State of Delaware, or (iv) for any transition from which the directors derived an improper personal benefit. In addition, the personal liability of directors shall further be limited or eliminated to the fullest extent permitted by any future amendments to Delaware law. SEVENTH: The business and affairs of the Corporation shall be managed by or under the direction of the board of directors, the number of members of which shall be set forth in, or determined in accordance with, the bylaws of the Corporation. The directors need not be elected by ballot unless required by the bylaws of the Corporation. EIGHTH: The directors of the Corporation shall have the power to make, alter or amend the bylaws. NINTH: Meetings of the stockholders shall be held within the State of Delaware at such place and time as determined by the stockholders. The books of the Corporation shall be kept in the State of Delaware at such place or places as may be designated from tune to time by the board of directors or in the bylaws of the Corporation. TENTH: The Corporation shall have no power and may not be authorized by its stockholders or directors (i) to perform or omit to do any act that would prevent or inhibit the Corporation from qualifying, or cause the Corporation to lose its status, as a corporation exempt from the Delaware Corporation Income Tax under Section 1902(b)(8) of Title 30 of the Delaware Code, or under the corresponding provision of any subsequent law, or (ii) to conduct any physical activities outside of Delaware which could result in the Corporation being subject to tax outside of Delaware. -2- ELEVENTH: The name and mailing address of the incorporator is_______ ___________________________________________________________________________. TWELFTH: The Corporation reserves the right to amend or repeal any provision contained in this Certificate of Incorporation in the manner now or hereinafter prescribed by the laws of the State of Delaware. All rights herein conferred are granted subject to this reservation. THIRTEENTH: The powers of the incorporator shall terminate upon the election of directors. THE UNDERSIGNED INCORPORATOR, for the purpose of forming a corporation under the laws of the State of Delaware does make, file and record thus Certificate of Incorporation, and accordingly, does hereby execute this certificate effective as of the____day of_________________________. By:______________________________ -3- EX-3.59 61 ex3-59.txt EXHIBIT 3.59 Exhibit 3.59 BYLAWS OF ____________________________________ ARTICLE I - STOCKHOLDERS Section 1. Annual Meeting. An annual meeting of the stockholders, for the election of directors to succeed those whose terms expire and for the transaction of such other business as may properly come before the meeting, shall be held at such place within Delaware and shall be held on any weekday which is not a holiday as shall be designated by the Board and stated in the notice of the meeting. Section 2. Special Meetings. Special meetings of the stockholders, for any purpose or purposes prescribed in the notice of the meeting, may be called by the Board of Directors, the Chairperson or the President or as otherwise provided by law or the Certificate of Incorporation and shall be held at such place within Delaware, on such date, and at such time as they or he or she shall fix, and a majority of the stockholders may call a special meeting in accordance with Section 4 of Article II of these Bylaws. Section 3. Notice of Meetings. Written notice of the place, date and time of all meetings of the stockholders shall be given, not less than ten nor more than sixty days before the date on which the meeting is to be held, to each stockholder entitled to vote at such meeting, except as otherwise provided herein or required by law (meaning, here and hereinafter, as required from time to time by the Delaware General Corporation Law or the Certificate of Incorporation of the Corporation). When a meeting is adjourned to another place, date or time, written notice need not be given of the adjourned meeting if the place, date and time thereof are announced at the meeting at which the adjournment is taken; provided, however, that if the date of any adjourned meeting is more than thirty days after the date for which the meeting was originally noticed, or if a new record date is fixed for the adjourned meeting, written notice of the place, date, and time of the adjourned meeting shall be given in conformity herewith. At any adjourned meeting, any business may be transacted which might have been transacted at the original meeting. Section 4. Quorum. At any meeting of the stockholders, the holders of a majority of all of the shares of the stock entitled to vote at the meeting, present in person or by proxy, shall constitute a quorum for all purposes, unless or except to the extent that the presence of a larger number may be required by law. If a quorum shall fail to attend any meeting, the Chairperson of the meeting or the holders of a majority of the shares of the stock entitled to vote who are present, in person or by proxy, may adjourn the meeting to another place within Delaware, date, or time. If a notice of any adjourned special meeting of stockholders is sent to all stockholders entitled to vote thereat, stating that it will be held with those present constituting a quorum, then except as otherwise required by law, those present at such adjourned meeting shall constitute a quorum, and all matters shall be determined by a majority of the votes cast at such meeting. Section 5. Organization. The Chairperson of the Board or, in the absence of such Chairperson, the President of the corporation or, in the President's absence, such person as may be chosen by the Board, or if not so chosen, as selected by holders of a majority of the shares entitled to vote who are present, in person or by proxy, shall call to order any meeting of the stockholders and act as Chairperson of the meeting. In the absence of the Secretary of the corporation, the Secretary of the meeting shall be such person as the Chairperson of the meeting appoints. -2- Section 6. Conduct of Business. The Chairperson of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of discussion as seem to him or her in order. Section 7. Proxies and Voting. At any meeting of the stockholders, every stockholder entitled to vote may vote in person or by proxy authorized by an instrument in writing filed in accordance with the procedure established for the meeting. Each stockholder shall have one vote for every share of stock entitled to vote which is registered in such stockholder's name on the record date for the meeting, except as otherwise provided herein or required by law. All voting, including on the election of directors, but excepting where otherwise required by law, may be by a voice vote; provided, however, that upon demand therefor by a stockholder entitled to vote or such stockholder's proxy, a stock vote shall be taken. Every stock vote shall be taken by ballots, each of which shall state the name of the stockholder or proxy voting and such other information as may be required under the procedure established for the meeting. Every vote taken by ballots shall be counted by an inspector or inspectors appointed by the Chairperson of the meeting. No proxy shall be voted on or after three (3) years from its date, unless the proxy provides for a longer period. All elections shall be determined by a plurality of the votes cast, and except as otherwise required by law, all other matters shall be determined by a majority of the votes cast. -3- Section 8. Consent of Stockholders in Lieu of Meeting. Any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of the stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. ARTICLE II - BOARD OF DIRECTORS Section 1. Number and Term of Office. The number of directors who shall constitute the whole board shall be such number as the Board of Directors shall at the time have designated. Each director shall be elected for a term of one year and until such director's successor is elected and qualified, except as otherwise provided herein or required by law. Whenever the authorized number of directors is increased between annual meetings of the stockholders, a majority of the directors then in office shall have the power to elect such new directors for the balance of a term and until their successors are elected and qualified. Any decrease in the authorized number of directors shall not become effective until the expiration of the term of the directors then in office unless, at the time of such decrease, there shall be vacancies on the board which are being eliminated by the decrease. Section 2. Vacancies. If the office of any director becomes vacant by reason of death, resignation, disqualification, removal or other cause, a majority of the directors remaining in office, although less than a quorum, may elect a successor for the unexpired term and until such director's successor is elected and qualified. -4- Section 3. Regular Meetings. Regular meetings of the Board of Directors shall be held at such place or places within Delaware, on such date or dates, and at such time or times as shall have been established by the Board of Directors and publicized among all directors. A notice of each regular meeting shall not be required. Section 4. Special Meetings. Special meetings of the Board of Directors may be called only by the Chairperson, the President, or their respective delegates, a majority of the directors or a majority of the stockholders and shall be held at such place within Delaware, on such date, and at such time as the authorized person(s) calling such meeting shall fix. Notice of the place, date, and time of each such special meeting shall be given each director by whom it is not waived by mailing written notice not less than five days before the meeting or by hand delivering, telegraphing, telecopying or sending by overnight courier the same not less than twenty-four hours before the meeting. The attendance of a director at a meeting shall constitute a waiver of notice for the meeting. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting. Section 5. Quorum. At any meeting of the Board of Directors, a majority of the total number of the whole board shall constitute a quorum for all purposes. If a quorum shall fail to attend any meeting, a majority of those present may adjourn the meeting to any place within Delaware, date, or time, without further notice or waiver thereof. Section 6. Participation in Meetings by Conference Telephone. Notwithstanding any provision of these bylaws to the contrary, members of the Board of Directors, or of any committee thereof, may participate in a -5- meeting of such board or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other and such participation shall constitute presence in person at such meeting; provided that a quorum is physically present in Delaware. Section 7. Chairperson of the Board. The Board of Directors shall elect, at its original meeting and each annual meeting, a Chairperson of the Board (the "Chairperson") who shall be a director and who shall hold office until the next annual meeting of the Board and until such Chairperson's successor is elected and qualified or until such Chairperson's earlier resignation or removal by act of the Board. The Chairperson shall preside at meetings of the stockholders and the Board. In the absence of the Chairperson, the President shall preside at meetings of the stockholders and the Board, or in the President's absence, such person as designated by the Board of Directors in accordance with these Bylaws. Section 8. Conduct of Business. At any meeting of the Board of Directors, business shall be transacted in such order and manner as the Board may from time to time determine, and all matters shall be determined by the vote of a majority of the directors present, except as otherwise provided herein or required by law. Action may be taken by the Board of Directors without a meeting if all members thereof consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors. The Board of Directors from time to time may declare and authorize the payment of dividends on its outstanding shares in the manner and on the terms and conditions permitted by law. -6- Section 9. Compensation of Directors. Directors may receive, pursuant to resolution of the Board of Directors, fixed fees and other compensation for their services as directors, including, without limitation, their services as members of committees of the Board of Directors. Section 10. Removal of Directors. Any director of the corporation may be removed at any time, with or without cause, by a majority vote of the stockholders. ARTICLE III - OFFICERS Section 1. Generally. The officers of the corporation shall consist of a President, a Secretary, a Treasurer and such other officers, including, for example, Vice Presidents, Assistant Treasurers and Assistant Secretaries, as may from time to time be appointed by the Board of Directors. Officers shall be elected by the Board of Directors which shall consider that subject at its first meeting after every annual meeting of stockholders. Each officer shall hold office until such officer's successor is elected and qualified or until such officer's earlier resignation or removal. A vacancy in office may be filled at any time by the Board of Directors. One person may hold more than one of the offices specified in this section and may have such other titles as the Board of Directors may determine. Section 2. President. The President shall be the chief executive officer of the corporation. Subject to the provisions of these bylaws and to the direction of the Board of Directors, the President shall have the responsibility for the general management and control of the business and affairs of the corporation and shall perform all duties and have all powers which are commonly incident to the office of chief executive or which are delegated to the President by the Board of -7- Directors. The President shall have power to sign all stock certificates, contracts and other instruments of the corporation which are authorized and shall have general supervision and direction of all of the other officers, employees and agents of the corporation. Section 3. Vice President. There may be such number of Vice Presidents as the Board of Directors shall appoint. Any such Vice President shall have such powers and duties as may be delegated to the Vice President by the Board of Directors. A Vice President may be designated by the Board of Directors to perform the duties and exercise the powers of the President in the event of the President's absence or disability. Any Vice President shall have the authority to sign all stock certificates, contracts and other instruments of the corporation, unless otherwise provided by the President. In the absence of the Chairperson and the President, one Vice President so designated by the Board of Directors shall preside at meetings of the stockholders and the Board of Directors. Section 4. Treasurer/Assistant Treasurer. The Treasurer shall have the responsibility for maintaining the financial records of the corporation and shall have custody of all monies and securities of the corporation. The Treasurer shall make such disbursements of the funds of the corporation as are authorized and shall render from time to time an account of all such transactions and of the financial condition of the corporation. The Treasurer shall also perform such other duties as the Board of Directors may from time to time prescribe. The Board of Directors may also elect an Assistant Treasurer, if deemed necessary or appropriate, who shall have such powers and duties of the Treasurer, as determined by the Board of Directors. -8- Section 5. Secretary/Assistant Secretary. The Secretary shall issue all authorized notices for, and shall keep minutes of, all meetings of the stockholders and the Board of Directors. The Secretary shall have charge of the corporate books and shall perform such other duties as the Board of Directors may from time to time prescribe. The Board of Directors may also elect an Assistant Secretary, if deemed necessary or appropriate, who shall have such powers and duties of the Secretary, as determined by the Board of Directors. Section 6. Delegation of Authority. The Board of Directors or its officers may from time to time in writing delegate the powers or duties of any officer to any other officers or agents, notwithstanding any provision hereof. Section 7. Removal. Any officer of the corporation may be removed at any time, with or without cause, by the Board of Directors. Section 8. Action with Respect to Securities of Other Corporations. Unless otherwise directed by the Board of Directors, the President or any Vice President, or their respective delegates, shall have power to vote and otherwise act on behalf of the corporation, in person or by proxy, at any meeting of stockholders of or with respect to any action of stockholders of any other corporation in which this corporation may hold securities and otherwise to exercise any and all rights and powers which this corporation may possess by reason of its ownership of securities in such other corporation. -9- ARTICLE IV - STOCK Section 1. Certificates of Stock. Each stockholder shall be entitled to a certificate signed by, or in the name of the corporation by, the President or Vice President and the Secretary, or such other officers as authorized by the Board, certifying the number of shares owned by such stockholder. The name and address of the person to whom shares are issued with the number of shares and date of issue shall be entered on the stock transfer books of the Corporation. The Corporation shall be entitled to recognize the exclusive right of the person registered on its books as the owner of such shares. Section 2. Transfers of Stock. Transfers of stock shall be made only upon the transfer books of the corporation kept at an office of the corporation or by transfer agents designated to transfer shares of the stock of the corporation. Except where a certificate is issued in accordance with Section 4 of this Article V, an outstanding certificate for the number of shares involved shall be surrendered for cancellation before a new certificate is issued therefor. Section 3. Record Date. In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which record date shall not be more than sixty nor less than ten days before the date of such meeting. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. -10- In order that the corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors, and which date shall not be more than ten days after the date upon which the resolution fixing the record date is adopted by the Board of Directors. In order that the corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. Section 4. Lost, Stolen or Destroyed Certificates. In the event of the loss, theft or destruction of any certificate of stock, another may be issued in its place pursuant to such regulations as the Board of Directors may establish concerning proof of such loss, theft or destruction and concerning the giving of a satisfactory bond or bonds of indemnity. Section 5. Regulations. The issue, transfer, conversion and registration of certificates of stock shall be governed by such other regulations as the Board of Directors may establish. -11- ARTICLE V - PURPOSES AND POWERS Section 1. Purposes and Powers. The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware; provided that the corporation's activities shall be confined to the maintenance and management of its intangible investments and the collection and distribution of the income from such investments or from tangible property physically located outside Delaware, all as defined in, and in such manner to qualify for exemption from income taxation under Section 1902(b)(8) of Title 30 of the Delaware Code, or under the corresponding provision of any subsequent law; provided further that the corporation shall be empowered to conduct such other activities as permitted by said Section 1902(b)(8) or the corresponding provision of any subsequent law in such manner to qualify for exemption from income taxation under said Section 1902(b)(8) or the corresponding provision of any subsequent law. For purposes of this Section "intangible investments" shall include, without limitation, investments in stocks, bonds, notes and other debt obligations (including debt obligations of affiliated corporations), patents, patent applications, trademarks, trade names and similar types of intangible assets. ARTICLE VI - INDEMNIFICATION AND INSURANCE Section 1. Scope. Except as prohibited by law, every director and officer of the corporation now or hereafter serving as such shall be entitled as of right to be indemnified by the corporation against reasonable expense and any liability paid or incurred by such person in connection with any actual or threatened claim, action, suit or proceeding, civil, criminal, administrative, investigative or other, whether brought by or in the right of the corporation or otherwise, by reason of such person being or having been a director or officer of the corporation or by reason of the fact that such officer or director of the -12- corporation is or was serving at the request of the corporation as a director, officer, employee, fiduciary or other representative of another corporation, partnership, joint venture, trust, employee benefit plan or other entity (such claim, action, suit or proceeding hereinafter being referred to as "action"); provided however that no such person shall be indemnified against, nor be reimbursed for any expense incurred in connection with any liability arising out of his or her own willful misconduct or gross negligence. Such indemnification shall include the right to have expenses incurred by such person in connection with an action paid in advance by the corporation prior to final disposition of such action; provided that such director or officer agrees to repay the amounts so paid if it is ultimately determined that such expense is not authorized under this Section 1. Persons who are not directors or officers of the corporation may be similarly indemnified in respect of service to the corporation or to another such entity at the request of the corporation to the extent the Board of Directors at any time determines that such person is entitled to the benefits of this Article. As used herein, "expense" shall include fees and expenses of counsel selected by such person; and "liability" shall include amounts of judgments, excise taxes, fines and penalties, and amounts paid in settlement. Section 2. Means of Indemnification. The corporation may purchase and maintain insurance to protect itself and any person eligible to be indemnified hereunder against any liability or expense asserted or incurred by such person in connection with any action, whether or not the corporation would have the power to indemnify such person against such liability or expense by law or under this Article. The corporation may create a trust fund, grant a security interest, cause a letter of credit to be issued or use other means (whether or not similar to the foregoing) to ensure the payment of such sums as may become necessary to effect indemnification as provided herein. -13- Section 3. Agreement for Indemnification. The corporation shall have the express authority to enter into such agreements as the Board of Directors deems appropriate for the indemnification, including advancement of expenses, of present or future directors and officers of the corporation and other persons in connection with their service to, or status with, the corporation or any other corporation, partnership, joint venture, trust, employee benefit plan or other entity with whom such director, officer or other person is serving at the request of the corporation. Section 4. Nature of Right of Indemnification. The right of indemnification provided for herein (i) shall not be deemed exclusive of any other rights to which those seeking indemnification hereunder may be entitled, (ii) shall be deemed to create contractual rights in favor of persons entitled to indemnification hereunder, (iii) shall continue as to persons who have ceased to have the status pursuant to which they were entitled or were determined to be entitled to indemnification hereunder and shall inure to the benefit of the heirs and legal representatives of persons entitled to indemnification hereunder and (iv) shall be applicable to actions, suits or proceedings commenced after the adoption hereof, whether arising from acts or omissions occurring before or after the adoption hereof. The rights of indemnification provided for herein may not be amended, modified or repealed so as to limit in any way the indemnification provided for herein with respect to any acts or omissions occurring prior to the effective date of any such amendment, modification or repeal. ARTICLE VII - NOTICES Section 1. Notices. Except as otherwise specifically provided herein or required by law, all notices required to be given to any stockholder, director, officer, employee or agent, shall be in writing and may in every instance be effectively given by hand delivery to the recipient thereof, by depositing such notice in the mails, -14- postage paid, by sending such notice by Federal Express or similar overnight courier, by sending such notice by prepaid telegram or mailgram or by sending such notice by telecopy or similar facsimile transmission. Any such notice shall be addressed to such stockholder, director, officer, employee, or agent at his or her last known address as the same appears on the books of the corporation. The time when such notice is received, if hand delivered, or dispatched, if delivered through the mails, by overnight courier, by telegram or mailgram, or by telecopy or similar facsimile shall be the time of the giving of the notice. Section 2. Waivers. A written waiver of any notice, signed by a stockholder, director, officer, employee or agent, whether before or after the time of the event for which notice is to be given, shall be deemed equivalent to the notice required to be given to such stockholder, director, officer, employee or agent. Neither the business nor the purpose. of any meeting need be specified in such a waiver. ARTICLE VIII - MISCELLANEOUS Section 1. Corporate Seal. The Board of Directors may provide a suitable seal, containing the name of the corporation, which seal shall be in the charge of the Secretary. Duplicates of the seal may be kept and used by the Treasurer or Secretary or by an Assistant Secretary or Assistant Treasurer. Section 2. Reliance upon Books, Reports and Records. Each director, each member of any committee designated by the Board of Directors, and each officer of the corporation shall, in the performance of his or her duties, be fully protected in relying in good faith upon the books of account or other records of the corporation, including reports made to the corporation by any of its officers, by an independent certified public accountant, or by an appraiser selected with reasonable care. -15- Section 3. Fiscal Year. The fiscal year of the corporation shall on October 31 of each year. Section 4. Time Periods. In applying any provision of these bylaws which require that an act be done or not done a specified number of days prior to an event or that an act be done during a period of a specified number of days prior to an event, calendar days shall be used, the day of the doing of the act shall be excluded, and the day of the event shall be included. ARTICLE IX - AMENDMENTS Section 1. Amendments. These bylaws may be amended, suspended or repealed in a manner consistent with law at any regular or special meeting of the Board of Directors by vote of a majority of the entire Board or at any stockholders meeting called and maintained in accordance with Article I of these bylaws. Such amendment, suspension or repeal may be evidenced by resolution or as the Board may otherwise deem appropriate. THE UNDERSIGNED sole director of does hereby certify that the foregoing is a true copy of the bylaws of and that the same are in full force and effect as of the date indicated below. Dated: __________________________________ [SEAL] -16- EX-3.60 62 ex3-60.txt EXHIBIT 3.60 Exhibit 3.60 ARTICLES OF ORGANIZATION [NAME OF ENTITY] The undersigned, being authorized to execute and file these Articles, hereby certifies that: 1. NAME. The name of the limited liability company (hereinafter referred to as the "Company") shall be ________________________________________. 2. DURATION. The duration of the company shall be ___ years from the date that these Articles of Organization are filed with the State Department of Assessments and Taxation, unless sooner dissolved by the members or as provided by statute. 3. PURPOSES. The purposes for which the company is organized shall include ___ ___________________________________________________________________________ __________________________________________________________________________. 4. PRINCIPAL OFFICE. The address and principal office of the Company is ______ ____________________________________________________________. 5. NAME AND ADDRESS OF RESIDENT AGENT. The name and address of the resident agent of the Company is ___________________________________________________ _____________________________________________________________. 6. RIGHT TO CONTINUE BUSINESS. In the event of the death, retirement, resignation, expulsion, bankruptcy or dissolution of a Member, or any other occurrence or event which terminates the Membership of a Member in the Company, the members may continue business upon unanimous agreement in accordance with the Operating Agreement. At their election and option, the remaining members may agree to continue the business. 7. INTERNAL AFFAIRS. The internal affairs of the Company are set forth in the Operating Agreement of the Company, as the same may be amended from time to time, which shall be provided to all present and subsequent Members of the Company, and shall govern the operation of the Company and its various Members. 8. INDEMNIFICATION. The Company shall indemnify a company representative of the Company in connection with any proceeding to the fullest extent permitted by law and in accordance with any applicable statute, as the same may be amended, from time to time. 9. AUTHORITY TO EXECUTE ARTICLES AND CERTIFICATES. Any authorized Member or office of the Company, as certified by the Company's Secretary from time to time in accordance with the Operating Agreement, shall be authorized to sign Articles and certificates required to be filed with the State Department of Assessments and Taxation. 10. AUTHORITY OF MEMBERS. Pursuant to Section 4A-401 of the Act, the authority of members of the Company to act for the Company solely by virtue of their being members is limited, and shall be only as set forth in the Operating Agreement of the Company. IN WITNESS WHEREOF, the undersigned has attached his hand and seal to these Articles of Organization this ____________ day of ___________, ___ . WITNESS: _________________________ ____________________________________ STATE OF MARYLAND, COUNTY OF _________________________________, to wit: I HEREBY CERTIFY that on this ___________ day of ___________________, ___________, before me, the subscriber, a Notary Public in and for the State and County aforesaid, personally appeared __________________________ , known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument and acknowledged that he/she executed the same for the purposes therein contained. WITNESS my hand and notarial seal: _____________________________ Notary Public My commission expires ______________________ EX-3.61 63 ex3-61.txt EXHIBIT 3.61 Exhibit 3.61 ARTICLES OF INCORPORATION OF -------------------------------------- THE UNDERSIGNED, in order to form a corporation (the "Corporation"), for the purpose hereinafter stated, under and pursuant to the provisions of the Michigan Business Corporation Act (the "Act"), does hereby certify as follows: ARTICLE I The name of the Corporation is: ________________________________. ARTICLE II The purpose of the Corporation is to engage in any activity within the purposes for which corporations may be formed under the Act. ARTICLE III 1. The total number of shares of stock which the Corporation shall have the authority to issue is _________________ shares of common stock. 2. The entire authorized capital stock of the Corporation consists of common stock with full voting powers and without any preferences, special rights, qualifications, limitations or restrictions. ARTICLE IV 1. The current registered office is located at _____________________. 2. The current mailing address of the registered office is _________. 3. The name of the resident agent at the registered office is ______. ARTICLE V The incorporator of the Corporation is ____________, whose mailing address is _______________. ARTICLE VI When a compromise or arrangement or a plan of reorganization of the Corporation is proposed between the Corporation and its creditors or any class of them or between the Corporation and its shareholders or any class of them, a court of equity jurisdiction within the state, on application of the Corporation or of a creditor or shareholder thereof, or on application of a receiver appointed for the Corporation, may order a meeting of the creditors or class of creditors or of the shareholders or class of shareholders to be affected by the proposed compromise or arrangement or reorganization, to be summoned in such manner as the court directs. If a majority in number representing 3/4 in value of the creditors or class of creditors, or of the shareholders or class of shareholders to be affected by the proposed compromise or arrangement or a reorganization, agree to a compromise or arrangement or a reorganization of the Corporation as a consequence of the compromise or arrangement, the compromise or arrangement and the reorganization, if sanctioned by the court to which the application has been made, shall be binding on all the creditors or class of creditors, or on all the shareholders or class of shareholders and also on the Corporation. ARTICLE VII Any action required or permitted by the Act to be taken at an annual or special meeting of shareholders may be taken without a meeting, without prior notice and without a vote, if consents in writing, setting forth the action so taken, are signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote on the action were present and voted. The written consents shall bear the date of signature of each shareholder who signs the consent. No written consents shall be effective to take the corporate action referred to unless, within 60 days after the record date for determining shareholders entitled to express consent to or to dissent from a proposal without a meeting, written consents signed by a sufficient number of shareholders to take the action are delivered to the Corporation. Delivery shall be to the Corporation's registered office, its principal place of business, or an officer or agent of the Corporation having custody of the minutes of the proceedings of its shareholders. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to shareholders who have not consented in writing. ARTICLE VIII No director of the Corporation shall be liable to the Corporation or its shareholders for monetary damages for a breach of the director's fiduciary duty; however, the foregoing provision shall not be deemed to limit a director's liability to the Corporation or its shareholders resulting from: (i) a breach of the director's duty of loyalty to the Corporation or its shareholders; (ii) acts or omissions of the director not in good faith or that involve intentional misconduct or knowing violation of the law; (iii) a violation of Section 551(1) of the Act; or (iv) a transaction from which the director derived an improper personal benefit. -2- ARTICLE IX INDEMNIFICATION OF OFFICERS, DIRECTORS, ETC. 1. Indemnification of Directors. The Corporation shall indemnify a person (including the heirs, executors and administrators of such person) who is or was a party to, or who is threatened to be made a party to, a threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal, including, without limitation, an action by or in the right of the Corporation, by reason of the fact that he or she is or was a director of the Corporation, or is or was serving at the request of the Corporation as a director of the Corporation, or is or was serving at the request of the Corporation as a director (or in a similar capacity) of another foreign or domestic Corporation or any other entity, whether for profit or not, against expenses, attorneys' fees, judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action, suit or proceeding. This Section 1 is intended to grant the persons herein described the fullest protection not prohibited by existing law in effect as of the effective date of these Articles of Incorporation or such greater protection as may be permitted or not prohibited under succeeding provisions of law. 2. Indemnification of Officers. Etc. The Corporation has the power to indemnify a person (including heirs, executors, and administrators of such person) who is or was a party to, or who is threatened to be made a party to, a threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal, including an action by or in the right of the Corporation, by reason of the fact that he or she is or was an officer, employee, or agent of the Corporation or is or was serving at the request of the Corporation as an officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, whether for profit or not, against expenses, including attorneys' fees, incurred by him or her in connection with the action, suit or proceeding, if the person acted in good faith in a manner he or she reasonably believed to be in or not opposed to the best interests of the Corporation or its shareholders, and with respect to a criminal action 8r proceeding, if the person had no reasonable cause to believe his or her conduct was unlawful. Unless ordered by a court, an indemnification under this Section 2 shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the officer, employee, or agent is proper in the circumstances because he or she has met the applicable standard of conduct set forth in this Section 2. Such determination shall be made: (i) by a majority vote of the directors of the Corporation who were not parties or threatened to be made parties to the action, suit, or proceeding; (ii) by independent legal counsel in a written opinion; or (iii) by the shareholders who were not parties or threatened to be made parties to the action, suit or proceeding. -3- 3. Advancement of Expenses. The Corporation shall pay the expenses incurred by a person described in Section 1 of this Article IX in defending a civil or criminal action, suit, or proceeding described in such Section 1 in advance of the final disposition of the action, suit, or proceeding. The Corporation shall pay the expenses incurred by a person described in Section 2 of this Article IX in defending a civil or criminal action, suit, or proceeding upon receipt of an undertaking by or on behalf of such person to repay the expenses if it is ultimately determined that the person is not entitled to be indemnified by the Corporation. Such undertaking shall be by unlimited general obligation of the person on whose behalf advances are made but need not be secured. ARTICLE X ELECTION NOT TO BE GOVERNED BY CHAPTER 7A OF THE BUSINESS CORPORATION ACT The Corporation shall not be governed by, or subject to, any of the terms, provisions, or restrictions set forth in Chapter 7A of the Act, being Act No. 115 of the Public Acts of 1984, Michigan Compiled Laws Sections 775 through 784. This Article X is intended to comply with the requirements of Section 784(1)(b) of the Act, as amended by Act No. 115 of the Public Acts of 1984. ARTICLE XI ELECTION NOT TO BE GOVERNED BY CHAPTER 7B OF THE BUSINESS CORPORATION ACT The Corporation shall not be governed by, or subject to, any of the terms, provisions, or restrictions set forth in the "Stacey, Bennett, and Randall shareholder equity act," being Chapter 7B of the Act. This Article XI is intended to comply with the requirements of Section 794 of the Act, as added by Act No. 58 of the Public Acts of 1988. IN WITNESS WHEREOF, the undersigned hereby executes these Articles of Incorporation on the _____ day of ____________________ . _______________________________ Matthew A. Cole -4- EX-3.62 64 ex3-62.txt EXHIBIT 3.62 Exhibit 3.62
- --------------------------------------------------------------------------------------------------------------------- MICHIGAN DEPARTMENT OF CONSUMER & INDUSTRY SERVICES BUREAU OF COMMERCIAL SERVICES - --------------------------------------------------------------------------------------------------------------------- Date Received (FOR BUREAU USE ONLY) - ------------------------- This document is effective on the date filed, unless a subsequent effective date within 90 days after received date is stated in the document. - -------------------------------------------------------------------------------------- Name__________________________________________________________________________________ Address_______________________________________________________________________________ City_________________________________ State_________________________ Zip Code_________ Effective Date: - --------------------------------------------------------------------------------------------------------------------- Document will be returned to the name and address you enter above. If left blank documents will be mailed to the registered office. ------------------------------------- ------------------------------------- ARTICLES OF INCORPORATION For use by Domestic Profit Corporations (Please read information and instructions on the last page) Pursuant to the provisions of Act 284, Public Acts of 1972, the undersigned corporation executes the following Articles: ARTICLE I - --------------------------------------------------------------------------------------------------------------------- The name of the corporation is: - --------------------------------------------------------------------------------------------------------------------- ARTICLE II - --------------------------------------------------------------------------------------------------------------------- The purpose or purposes for which the corporation is formed is to engage in any activity within the purposes for which corporations may be formed under the Business Corporation Act of Michigan. - --------------------------------------------------------------------------------------------------------------------- ARTICLE III - --------------------------------------------------------------------------------------------------------------------- The total authorized shares: 1. Common Shares _________________________________________________________________________________________ Preferred Shares ______________________________________________________________________________________ 2. A statement of all or any of the relative rights, preferences and limitations of the shares of each class is as follows: - --------------------------------------------------------------------------------------------------------------------- ARTICLE IV - --------------------------------------------------------------------------------------------------------------------- 1. The address of the registered office is: __________________________________________________________________________________, Michigan __________________ (Street Address) (City) (ZIP Code) 2. The mailing address of the registered office, if different than above: __________________________________________________________________________________, Michigan ____________________ (Street Address or P.O. Box) (City) (ZIP Code) 3. The name of the resident agent at the registered office is: ____________________________________________________ - ---------------------------------------------------------------------------------------------------------------------
ARTICLE V - --------------------------------------------------------------------------------------------------------------------- The name(s) and address(es) of the incorporator(s) is(are) as follows: Name Residence or Business Address _____________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________ _____________________________________________________________________________________________________________________ - --------------------------------------------------------------------------------------------------------------------- ARTICLE VI (Optional, Delete if not applicable) - --------------------------------------------------------------------------------------------------------------------- [When a compromise or arrangement or a plan of reorganization of this corporation is proposed between this corporation and its credits or any class of them or between this corporation and its shareholders or any class of them, a court of equity jurisdiction within the state, on application of this corporation or of a creditor or shareholder thereof, or an application of a receiver appointed for the corporation, may order a meeting of the creditors or class of creditors or of the shareholders or class of shareholders to be affected by the proposed compromise or arrangement or reorganization, to be summoned in such manner as the court directs. If a majority in number representing 3/4 in value of the creditors or class of creditors, or of the shareholders or class of shareholders to be affected by the proposed compromise or arrangement or a reorganization, agree to a compromise or arrangement or a reorganization of this corporation as a consequence of the compromise or arrangement, the compromise or arrangement and the reorganization, if sanctioned by the court to which the application has been made, shall be binding on all the creditors or class of creditors, or on all the shareholders or class of shareholders and also on this corporation.] - --------------------------------------------------------------------------------------------------------------------- ARTICLE VII (Optional, Delete if not applicable) - --------------------------------------------------------------------------------------------------------------------- Any action required or permitted by the Act to be taken at an annual or special meeting of shareholders may be taken without a meeting, without prior notice, and without a vote, if consents in writing, setting forth the action so taken , are signed by the holders of outstanding shares having not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote on the action were present and voted. A written consent shall bear the date of signature of the shareholder who signs the consent. Written consents are not effective to take corporation action unless within 60 days after the record date for determining shareholders entitled to express consent to or to dissent from a proposed without a meeting, written consents dated not more than 10 days before the record date and signed by a sufficient number of shareholders to take the action are delivered to the corporation. Delivery shall be in the corporation's registered office, its principal place of business, or any officer or agent of the corporation having custody of the minutes of the proceedings of its shareholders. Delivery made to a corporation's registered office its principal place of business or any officer or agent of the corporation having custody of the minutes of the proceedings of its shareholders. Delivery made to a corporation's registered office and shall be by hand or by certified or registered receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to shareholders who would have been entitled to notice of the shareholder meeting if the action had been taken at a meeting and who have not consented to the action in writing. - ---------------------------------------------------------------------------------------------------------------------
*Bracketed information has been deleted
The space below for additional Articles or for continuation of previous Articles. Please identify any Article being continued or added. Attach additional pages if needed. A director of the corporation shall not be personally liable to the corporation or its shareholders for monetary damages for breach of the director's fiduciary duty. However, the Article shall not eliminate or limit the liability of a director for any of the following: (1) A breach of the director's duty of loyalty to the corporation or its shareholders. (2) Acts or omissions not in good faith or that involve intentional misconduct or knowing violation of law (3) A violation of Section 551(1) of the Michigan Business Corporation Act (4) A transaction from which the director derived an improper personal benefit (5) An act of omission occurring before the effective date of this Article Any repeal or modification of the Article by the shareholders of the corporation shall not adversely affect any right or protection of any director of the corporation existing at the time of, or for or with respect to any acts or omissions occurring before such repeal or modification. I, (We), the incorporator(s) sign my (our) name(s) this _______________ day of _________________________, ___________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________ _________________________________________________
EX-3.63 65 ex3-63.txt EXHIBIT 3.63 Exhibit 3.63 Filed in the Department of State on _______________________________________ Secretary of the Commonwealth ARTICLES OF INCORPORATION TO THE DEPARTMENT OF STATE COMMONWEALTH OF PENNSYLVANIA: In compliance with the requirements of Section 204 of the Business Corporation Law, Act of May 5, 1933 (P.L. 364) (15 P.S. 1204) the undersigned, desiring to be incorporated as a business corporation, hereby certifies that: 1st. The name of the corporation is ________________________________. 2nd. The location and post office address of the initial registered office of the corporation in the Commonwealth is _____________________________ ______________________________ in the county of _______________________________. 3rd. The corporation is incorporated under the Business Corporation Law of the Commonwealth of Pennsylvania for the following purpose or purposes: ____ _______________________________________________________________________________ _______________________________________________________________________________ 4th. The term for which the corporation is to exist is perpetual. 5th. The aggregate number of shares which the corporation shall have authority to issue is ___________________ and the par value of each such shares is _________________________________. 6th. The names and addresses of the first directors are: Name Address ---- ------- ___________________ __________________________ ___________________ __________________________ 7th. The name and address of the incorporator and the number of shares subscribed by him is __________________________________________________________ ____________________________-_______ share(s). IN TESTIMONY WHEREOF, the incorporator has signed and sealed these Articles of Incorporation this ________________ day of ______________, _____. ____________________________ EX-3.64 66 ex3-64.txt EXHIBIT 3.64 Exhibit 3.64 BY-LAWS OF ---------------------------- ARTICLE I - OFFICES Section 1-1. Registered Office. The registered office of the corporation shall be located within the Commonwealth of Pennsylvania, at such place as the Board of Directors shall, from time to time, determine. Section 1-2. Other Offices. The corporation may also have offices at such other places, within or without the Commonwealth of Pennsylvania, as the Board of Directors may, from time to time, determine. ARTICLE II - SHAREHOLDERS' MEETINGS Section 2-1. Place of Shareholders' Meetings. Meetings of shareholders shall be held at such places, within or without the Commonwealth of Pennsylvania, as may be fixed from time to time by the Board of Directors. If no such place is fixed by the Board of Directors, meetings of the shareholders shall be held at the registered office of the corporation. Section 2-2. Annual Meeting. A meeting of the shareholders of the corporation shall be held in each calendar year, commencing with the year _____, on such date and at such time as the Board of Directors may determine. At such annual meeting, there shall be held an election of Directors. Unless the Board of Directors shall deem it advisable, financial reports of the corporation's business need not be sent to the shareholders and need not be presented at the annual meeting. If any report is deemed advisable by the Board of Directors, such report may contain such information as the Board of Directors shall determine and need not be certified by a Certified Public Accountant unless the Board of Directors shall so direct. Section 2-3. Special Meetings. Special meetings of the shareholders may be called at any time by the Chairman of the Board of Directors. Upon the written request of any person or persons entitled to call a special meeting, which request shall set forth the purpose for which the meeting is desired, it shall be the duty of the Secretary to fix the date of such meeting to be held at such time, not less than five (5) nor more than sixty (60) days after the receipt of such request, as the Secretary may determine, and to give due notice thereof. If the Secretary shall neglect or refuse to fix the date of such meeting and to give notice thereof within five (5) days after receipt of such request, the person or persons calling the meeting may do so. Section 2-4. Notices of Shareholders' Meetings. Written notice stating the date, place and hour and, if required by law or these By-laws, the purpose, of any meeting of the shareholders, shall be given to each shareholder of record entitled to vote at the meeting at least five (5) days prior to the day named for the meeting, unless otherwise required by law. Such notices may be given at the discretion of, or in the name of, the Board of Directors, President, Vice President, Secretary or Assistant Secretary. When a meeting is adjourned, it shall not be necessary to give any notice of the adjourned meeting or of the business to be transacted at an adjourned meeting, other than by announcement at the meeting at which such adjournment is taken. Section 2-5. Quorum of and Action by Shareholders. Unless otherwise provided in the Articles of Incorporation or in a By-law adopted by the Board of Directors at its organization meeting following the filing of the Articles of Incorporation, the presence, in person or by proxy, of shareholders entitled to cast at least a majority of the votes which all shareholders are entitled to cast on the particular matter shall constitute a quorum for the purpose of considering such matter, and, unless otherwise specifically provided by law, the acts, at a duly organized meeting of the shareholders present, in person or by proxy, entitled to cast at least a majority of the votes which all shareholders present are entitled to cast, shall be the acts of the shareholders. The shareholders present at a duly organized meeting can continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. If a meeting cannot be organized because a quorum has not attended, those present may, except as otherwise provided by law, adjourn the meeting to such time and place as they may determine, but in the case of any meeting called for the election of Directors, those shareholders who attend the second of such adjourned meetings, although less than a quorum as fixed in this section or in the Articles of Incorporation, shall nevertheless constitute a quorum for the purpose of electing Directors. Section 2-6. Voting. At least five (5) days before any meeting of shareholders, the officer or agent having charge of the transfer books of the corporation shall make a complete list of the shareholders entitled to vote at such meeting, arranged in alphabetical order, with the address of and the number of shares held by each, which list shall be kept on file at the registered office of the corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. At all shareholders' meetings, shareholders entitled to vote may attend and vote either in person or by proxy. All proxies shall be in writing, executed by the shareholder or by his duly authorized attorney-in-fact, and shall be filed with the Secretary of the corporation. A proxy, unless coupled with an interest, shall be revocable at will, notwithstanding any other agreement or any provision in the proxy to the contrary, but the revocation of a proxy shall not be effective until the notice thereof has been given to the Secretary of the corporation. No unrevoked proxy shall be valid after eleven (11) months from the date of execution, unless a longer time is expressly provided therein; but in no event shall a proxy, unless coupled with an interest, be voted on after three (3) years from the date of its execution. -2- Except as otherwise specifically provided by law, all matters coming before the meeting shall be determined by a vote of shares. Such vote shall be taken by voice unless a shareholder demands before the election begins that it be taken by ballot, in which event the vote shall be taken by written ballot, and the Judge or Judges of Election or, if none, the Secretary of the meeting, shall tabulate and certify the results of such vote. Section 2-7. Participation in Meetings by Conference Telephone. Any shareholder who is otherwise entitled to participate in any meeting of the shareholders may attend, be counted for the purposes of determining a quorum and exercise all rights and privileges to which he might be entitled were he personally in attendance, including the right to vote, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Section 2-8. Action by Unanimous Consent of Shareholders. Any action which may be taken at a meeting of the shareholders or a class of shareholders may be taken without a meeting if a consent or consents in writing, setting forth the action so taken, shall be signed by all of the shareholders who would be entitled to vote at a meeting for such purpose and shall be filed with the Secretary of the corporation. Insertion in the minute book of the corporation shall be deemed filing with the Secretary regardless of whether the Secretary or some other authorized person has actual possession of the minute book. Written consents by all of the shareholders executed pursuant to this section may be executed in any number of counterparts and shall be deemed effective as of the date set forth therein. Section 2-9. Action by Less than Unanimous Consent of Shareholders. Only if the Articles of Incorporation so provide, any action which may be taken at a meeting of the shareholders or of a class of shareholders may be taken without a meeting, if a consent or consents in writing to such action, setting forth the action so taken, shall be (a) signed by shareholders entitled to cast not less than the larger of (i) two-thirds of the total number of votes which all shareholders of the corporation or of a class of shareholders would be entitled by the Articles of Incorporation to cast upon such action or (ii) the minimum percentage of the vote required by law, if any, for the proposed action, and (b) shall be filed with the Secretary of the corporation. Insertion in the minute book of the corporation shall be deemed filing with the Secretary regardless of whether the Secretary or some other authorized person has actual possession of the minute book. Written consents executed pursuant to this section may be executed in any number of counterparts. Such action shall not become effective until after at least ten (10) days' written notice of such action shall have been given to each shareholder of record entitled to vote thereon. This paragraph shall not be applicable to any action with respect to any plan or amendment of the Articles of Incorporation to which Section 515 of the Pennsylvania Business Corporation Law, concerning dissenters rights, is applicable. -3- ARTICLE III - BOARD OF DIRECTORS Section 3-1. Number. The Board of Directors shall consist of _________ members. Once elected, Directors shall serve until the next annual meeting of shareholders and until their successors are duly elected and qualified or until their earlier resignation or removal. Section 3-2. Place of Meeting. Meetings of the Board of Directors may be held at such place within the Commonwealth of Pennsylvania or elsewhere as a majority of the Directors may from time to time appoint or as may be designated in the notice calling the meeting. Section 3-3. Regular Meetings. A regular meeting of the Board of Directors shall be held annually, immediately following the annual meeting of shareholders, at the place where such meeting of the shareholders is held or at such other place, date and hour as a majority of the newly elected Directors may designate. At such meeting, the Board of Directors shall elect officers of the Corporation. In addition to such regular meeting, the Board of Directors shall have the power to fix by resolution the place, date and hour of other regular meetings of the Board. Section 3-4. Special Meetings. Special meetings of the Board of Directors shall be held whenever ordered by the President, by a majority of the executive committee, if any, or by a majority of the Directors in office. Section 3-5. Participation in Meetings by Conference Telephone. Any Director may participate in any meeting of the Board of Directors or of any committee (provided he is otherwise entitled to participate), be counted for the purpose of determining a quorum thereof and exercise all rights and privileges to which he might be entitled were he personally in attendance, including the right to vote, by means of conference telephone or other similar communications equipment by means of which all persons on the meeting can hear each other. Section 3-6. Notices of Meeting of Board of Directors. (a) Regular Meetings. No notice shall be required to be given of any regular meeting, unless the same is held at other than the time or place for holding such meetings as fixed in accordance with Section 3-3 of these By-laws, in which event one (1) day's notice shall be given of the time and place of such meeting. (b) Special Meetings. Written notice stating the date, place and hour of any special meeting of the Board of Directors shall be given at least one (1) day prior to the date named for the meeting. Section 3-7. Quorum. A majority of the Directors in office shall be necessary to constitute a quorum for the transaction of business, and the acts of a majority of the Directors present at a meeting at which a quorum is present shall be considered as the acts of the Board of Directors. If there is no quorum present at a duly convened meeting of the Board of Directors, the majority of those present may adjourn the meeting from time to time and place to place. Section 3-8. Informal Action by the Board of Directors. Any action which may be taken at a meeting of the Directors, or of the members of any committee of the Board of Directors, may be taken without a meeting if a consent or consents in writing, setting forth the action so taken, shall be signed by all of the Directors, or members of the committee, as the case may be, and shall be filed with the Secretary of the corporation. Insertion in the minute book of the corporation shall be deemed filing with the Secretary regardless of whether the Secretary or some other authorized person has actual possession of the minute book. Written consents by all of the Directors or the members of any committee of the Board of Directors executed pursuant to this section may be executed in any number of counterparts and shall be deemed effective as of the date set forth therein. -4- Section 3-9. Powers. (a) General Powers. The Board of Directors shall have all the power and authority granted by law to the Board, including all powers necessary or appropriate to the management of the business and affairs of the corporation. (b) Specific Powers. Without limiting the general powers conferred by the last preceding clause and the powers conferred by the Articles and these By-laws of the corporation, it is hereby expressly declared that the Board of Directors shall have the following powers: (i) To confer upon any officer or officers of the corporation the power to choose, remove or suspend assistant officers, agents or servants. (ii) To appoint any person, firm or corporation to accept and hold in trust for the corporation any property belonging to the corporation or in which it is interested, and to authorize any such person, firm or corporation to execute any documents and perform any duties that may be requisite in relation to any such trust. (iii) To appoint a person or persons to vote shares of another corporation held and owned by the corporation. (iv) By resolution adopted by a majority of the whole Board of Directors, to designate one (1) or more committees, each committee to consist of two (2) or more of the Directors of the corporation. To the extent provided in any such resolution, and to the extent permitted by law, a committee so designated shall have and may exercise the authority of the Board of Directors in the management of the business and affairs of the corporation. The Board of Directors may designate one (1) or more Directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. If specifically granted this power by the Board in its resolution establishing the committee, in the absence or disqualification of any member and all designated alternates of such committee or committees or if the whole Board of Directors has failed to designate alternate members, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another Director to act at the meeting in the place of any such absent or disqualified member. (v) To fix the place, time and purpose of meetings of shareholders. (vi) To fix the compensation of Directors and officers for their services. Section 3-10. Removal of Directors by Shareholders. The entire Board of Directors or a class of the Board of Directors, where the Board of Directors is classified with respect to the power to elect Directors, or any individual Director may be removed from office without assigning any cause by the vote of shareholders entitled to cast at least a majority of the votes which all shareholders would be entitled to cast at any annual election of Directors or such class of Directors. In case the Board of Directors or such class of the Board of Directors or any one or more Directors is so removed, new Directors may be elected at the same time. If the shareholders are entitled to vote cumulatively for the Board of Directors or a class of the Board of Directors, no individual Director shall be removed unless the entire Board of Directors or class of the Board of Directors is removed in case the votes of a sufficient number of shares are cast against the resolution for his removal which, if cumulatively voted at an annual election of Directors would be sufficient to elect one (1) or more Directors to the Board of Directors or to the class. -5- Section 3-11. Vacancies. Vacancies in the Board of Directors, including vacancies resulting from an increase in the number of Directors, may be filled by a majority of the remaining members of the Board of Directors though less than a quorum, and each person so elected shall be a Director until his successor is duly elected by the shareholders, who may make such election at the next annual meeting of the shareholders or at any special meeting duly called for that purpose and held prior thereto, or until his earlier resignation or removal. ARTICLE IV - OFFICERS Section 4-1. Election and Office. The corporation shall have a President, a Secretary and a Treasurer who shall be elected by the Board of Directors. The Board of Directors may elect as additional officers a Chairman of the Board of Directors, one (1) or more Vice Presidents, and one (1) or more other officers or assistant officers. Any number of offices may be held by the same person. Section 4-2. Term. The officers and assistant officers shall each serve at the pleasure of the Board of Directors and until the annual meeting of the Board of Directors following the next annual meeting of shareholders unless removed from office by the Board of Directors during their respective tenures. Section 4-3. Powers and Duties of the Chairman of the Board of Directors. Unless otherwise determined by the Board of Directors, the Chairman of the Board of Directors, if any, shall preside at all meetings of Directors. He shall be the chief operating officer of the corporation and exercise detailed supervision over the business of the corporation. Section 4-4. Powers and Duties of the President. President shall do and perform such duties as from time to time may be assigned to him by the Board of Directors. He shall preside at all meetings of the shareholders at which he shall be present, and, unless there is a Chairman of the Board of Directors, shall preside at all meetings of the Board of Directors. Section 4-5. Powers and Duties of the Secretary. Unless otherwise determined by the Board of Directors, the Secretary shall be responsible for the keeping of the minutes of all meetings of the Board of Directors, shareholders and all committees, in books provided for that purpose, and for the giving and serving of all notices for the corporation. He shall have charge of the corporate seal, the certificate books, transfer books and stock ledgers, and such other books and papers as the Board of Directors may direct. He shall perform all other duties ordinarily incident to the office of Secretary and shall have such other powers and perform such other duties as may be assigned to him by the Board of Directors. Section 4-6. Powers and Duties of the Treasurer. Unless otherwise determined by the Board of Directors, the Treasurer shall have charge of all the funds and securities of the corporation which may come into his hands. When necessary or proper, unless otherwise determined by the Board of Directors, he shall endorse for collection on behalf of the corporation checks, notes, and other obligations, and shall deposit the same to the credit of the corporation in such banks or depositories as the Board of Directors may designate and shall sign all receipts and vouchers for payments made to the corporation. He shall sign all checks made by the corporation, except when the Board of Directors shall otherwise direct. He shall be responsible for the regular entry in books of the corporation to be kept for such purpose, full and accurate account of all funds and securities received and paid by him on account of the corporation. Whenever required by the Board of Directors, he shall render a statement of the financial condition of the corporation. He shall have such other powers and shall perform such other duties as may be assigned to him from time to time by the Board of Directors. He shall give such bond, if any, for the faithful performance of his duties as shall be required by the Board of Directors and any such bond shall remain in the custody of the President. -6- Section 4-7. Powers and Duties of Vice Presidents and Assistant Officers. Unless otherwise determined by the Board of Directors, each Vice President and each assistant officer shall have the powers and perform the duties of his respective superior officer. Vice Presidents and assistant officers shall have such rank as may be designated by the Board of Directors. Vice Presidents may be designated as having responsibility for a specific area of the corporation's affairs, in which event such Vice President shall be superior to the other Vice Presidents in relation to matters within his area. The President shall be the superior officer of the Vice Presidents. The Treasurer and Secretary shall be the superior officers of the Assistant Treasurers and Assistant Secretaries, respectively. Section 4-8. Delegation of Office. The Board of Directors may delegate the powers or duties of any officer of the corporation to any other person from time to time. Section 4-9. Vacancies. The Board of Directors shall have the power to fill any vacancies in any office occurring from whatever reason. ARTICLE V - CAPITAL STOCK Section 5-1. Share Certificates. Every share certificate shall be signed by the Chairman of the Board or the President or Vice President and by the Treasurer, Assistant Treasurer, Secretary or Assistant Secretary and sealed with the corporate seal, which may be a facsimile, engraved or printed, but where such certificate is signed by a transfer agent or a registrar, the signature of any corporate officer upon such certificate may be a facsimile, engraved or printed. Section 5-2. Transfer of Shares. Transfer of shares shall be made on the books of the corporation only upon surrender of the share certificate, duly endorsed or with duly executed stock powers attached and otherwise in proper form for transfer, which certificate shall be cancelled at the time of the transfer. Section 5-3. Determination of Shareholders of Record and Closing Transfer Books. The Board of Directors may fix a time, not more than fifty (50) days prior to the date of any meeting of shareholders, or the date fixed for the payment of any dividend or distribution, or the date for the allotment of rights, or the date when any change or conversion or exchange of shares will be made or go into effect, as a record date for the determination of the shareholders entitled to notice of or to vote at any such meeting, or entitled to receive payment of any such dividend or distribution, or to receive any such allotment of rights, or to exercise the rights in respect to any such change, conversion or exchange of shares or otherwise. In such case, only such shareholders as shall be shareholders of record on the date so fixed shall be entitled to notice of or to vote at such meeting, or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, as the case may be, notwithstanding any transfer of any shares on the books of the corporation after any record date fixed as aforesaid. The Board of Directors may close the books of the corporation against transfers of shares during the whole or any part of such period, and, in such case, written or printed notice thereof shall be mailed at least ten (10) days before the closing thereof to each shareholder of record at the address appearing on the records of the corporation or supplied by him to the corporation for the purpose of notice. While the stock transfer books of the corporation are closed, no transfer of shares shall be made thereon. Unless a record date is fixed by the Board of Directors for the determination of shareholders entitled to receive notice of, or vote at, a shareholders' meeting, transferees of shares which are transferred on the books of the corporation within ten (10) days next preceding the date of such meeting shall not be entitled to notice of or to vote at such meeting. The corporation may treat the registered owner of each share of stock as the person exclusively entitled to vote, to receive notifications and otherwise to exercise all the rights and powers of the owner thereof. -7- Section 5-4. Lost Share Certificates. Unless waived in whole or in part by the Board of Directors, any person requesting the issuance of a new certificate in lieu of an alleged lost, destroyed, mislaid or wrongfully taken certificate, shall (a) give to the corporation his bond of indemnity with an acceptable surety; and (b) satisfy such other reasonable requirements as may be imposed by the corporation. Thereupon, a new share certificate shall be issued to the registered owner or his assigns in lieu of the alleged lost, destroyed, mislaid or wrongfully taken certificate, provided that the request therefor and issuance thereof have been made before the corporation has notice that such shares have been acquired by a bona fide purchaser. ARTICLE VI - NOTICES; COMPUTING TIME PERIODS Section 6-1. Contents of Notice. Whenever any notice of a meeting is required to be given pursuant to these By-laws or the Articles of Incorporation or otherwise, the notice shall specify the place, day and hour of the meeting and, in the case of a special meeting of shareholders or where otherwise required by law, the general nature of the business to be transacted at such meeting. Section 6-2. Method of Notice. All notices shall be given to each person entitled thereto, either personally or by sending a copy thereof through the mail or by telegraph, charges prepaid, to his address appearing on the books of the corporation, or supplied by him to the corporation for the purpose of notice. If notice is sent by mail or telegraph, it shall be deemed to have been given to the person entitled thereto when deposited in the United States Mail or with the telegraph office for transmission. Section 6-3. Computing Time Periods. In computing the number of days for purposes of these By-laws, all days shall be counted, including Saturdays, Sundays or holidays; provided, however, that if the final day of any time period falls on a Saturday, Sunday or holiday, then the final day shall be deemed to be the next day which is not a Saturday, Sunday or holiday. In computing the number of days for the purpose of giving notice of any meeting, the date upon which the notice is given shall be counted but the day set for the meeting shall not be counted. Notice given twenty-four (24) hours before the time set for a meeting shall be deemed one (1) day's notice. ARTICLE VII. RESOLVED THAT ARTICLE VII of the Company's By-laws be and it hereby is deleted and replaced in its entirety as follows: ARTICLE VII - LIMITATION OF DIRECTORS' LIABILITY AND INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHER PERSONS Section 7-1. Limitation of Directors' Liability. No Director of the corporation shall be personally liable for monetary damages as such for any action taken or any failure to take any action unless: (a) the Director has breached or failed to perform the duties of his or her office under Section 8363 of the Pennsylvania Directors' Liability Act (relating to standard of care and justifiable reliance), and (b) the breach or failure to perform constitutes self-dealing, wilful misconduct or recklessness; provided, however, that the provisions of this Section shall not apply to the responsibility or liability of a Director pursuant to any criminal statute, or to the liability of a Director for the payment of taxes pursuant to local, State or Federal law. This Section shall be applicable to any action taken and any failure to take any action on or after January 27, 1987. -8- Section 7-2. Indemnification and Insurance. (a) Indemnification of Directors and Officers. (i) Each Indemnitee (as defined below) shall be indemnified and held harmless by the corporation for all actions taken by him or her and for all failures to take action (regardless of the date of any such action or failure to take action) to the fullest extent permitted by Pennsylvania law against all expense, liability and loss (including without limitation attorneys' fees, judgments, fines, taxes, penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by the Indemnitee in connection with any Proceeding (as defined below). No indemnification pursuant to this Section shall be made, however, in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court to have constituted wilful misconduct or recklessness. (ii) The right to indemnification provided in this Section shall include the right to have the expenses incurred by the Indemnitee in defending any Proceeding paid by the corporation in advance of the final disposition of the Proceeding to the fullest extent permitted by Pennsylvania law; provided that, if Pennsylvania law continues so to require, the payment of such expenses incurred by the Indemnitee in advance of the final disposition of a Proceeding shall be made only upon delivery to the corporation of an undertaking, by or on behalf of the Indemnitee, to repay all amounts so advanced without interest if it shall ultimately be determined that the Indemnitee is not entitled to be indemnified under this Section or otherwise. (iii) Indemnification pursuant to this Section shall continue as to an Indemnitee who has ceased to be a Director or officer and shall inure to the benefit of his or her heirs, executors and administrators. (iv) For purposes of this Article, (A) "Indemnitee" shall mean each Director or officer of the corporation who was or is a party to, or is threatened to be made a party to, or is otherwise involved in, any Proceeding, by reason of the fact that he or she is or was a Director or officer of the corporation or is or was serving in any capacity at the request or for the benefit of the corporation as a Director, officer, employee, agent, partner, or fiduciary of, or in any other capacity for, another corporation or any partnership, joint venture, trust, employee benefit plan, or other enterprise; and (B) "Proceeding" shall mean any threatened, pending or completed action, suit or proceeding (including without limitation an action, suit or proceeding by or in the right of the corporation), whether civil, criminal, administrative or investigative. (b) Indemnification-of Employees and other Persons. The corporation may, by action of its Board of Directors and to the-extent provided in such action, indemnify employees and other persons as though they were Indemnitees. (c) Non-Exclusivity of Rights. The rights to indemnification and to the advancement of expenses provided in this Article shall not be exclusive of any other rights that any person may have or hereafter acquire under any statute, provision of the corporation's Articles of Incorporation or By-laws, agreement, vote of shareholders or Directors, or otherwise. (d) Insurance. The corporation may purchase and maintain insurance, at its expense, for the benefit of itself and any person on behalf of whom insurance is permitted to be purchased by Pennsylvania law against any expense, liability or loss, whether or not the corporation would have the power to indemnify such person under Pennsylvania or other law. The corporation may also purchase and maintain insurance to insure its indemnification obligations whether arising hereunder or otherwise. -9- (e) Fund For Payment of Expenses. The corporation may create a fund of any nature, which may, but need not be, under the control of a trustee, or otherwise may secure in any manner its indemnification obligations, whether arising hereunder, under the Articles of Incorporation, by agreement, vote of shareholders or Directors, or otherwise. Section 7-3. Amendment. The provisions of this Article relating to the limitation of Directors' liability, to indemnification and to the advancement of expenses shall constitute a contract between the corporation and each of its Directors and officers which may be modified as to any Director or officer only with that person's consent or as specifically provided in this Section. Notwithstanding any other provision of these By-laws relating to their amendment generally, any repeal or amendment of this Article which is adverse to any Director or officer shall apply to such Director or officer only on a prospective basis, and shall not reduce any limitation on the personal liability of a Director of the corporation, or limit the rights of an Indemnitee to indemnification or to the advancement of expenses with respect to any action or failure to act occurring prior to the time of such repeal or amendment. Notwithstanding any other provision of these By-laws, no repeal of amendment of these By-laws shall affect any or all of this Article so as to reduce or limit indemnification or the advancement of expenses in any manner unless adopted by (a) the unanimous vote of the Directors of the corporation then serving, or (b) the affirmative vote of Shareholders entitled to cast at least eighty percent (80%) of the votes that all shareholders are entitled to cast in the election of Directors; provided that no such amendment shall have retroactive effect inconsistent with the preceding sentence. Section 7-4. Changes in Pennsylvania Law. References in this Article to Pennsylvania law or to any provision thereof shall be to such law (including without limitation the Directors' Liability Act) as it existed on the date this Article was adopted or as such law thereafter may be changed; provided that (a) in the case of any change which expands the liability of Directors or limits the indemnification rights or the rights to advancement of expenses which the corporation may provide, the rights to limited liability, to indemnification and to the advancement of expenses provided in this Article shall continue as theretofore to the extent permitted by law; and (b) if such change permits the corporation without the requirement of any further action by shareholders or Directors to limit further the liability of Directors (or limit the liability of officers) or to provide broader indemnification rights or rights to the advancement of expenses than the corporation was permitted to provide prior to such change, then liability thereupon shall be so limited and the rights to indemnification and the advancement of expenses shall be so broadened to the extent permitted by law. RESOLVED, that the foregoing amendment to Article VII of the By-laws is not intended to, and shall not, diminish any rights of any person to indemnification and related matters, with respect to acts taken or not taken by such person prior to the date hereof, which such person would have had if Article VII of the By-laws had not been amended. ARTICLE VIII - FISCAL YEAR The Board of Directors shall have the power by resolution to fix the fiscal year of the corporation. If the Board of Directors shall fail to do so, the President shall fix the fiscal year. -10- ARTICLE IX - AMENDMENTS The shareholders entitled to vote thereon shall have the power to alter, amend, or repeal these By-laws, by the vote of shareholders entitled to cast at least a majority of the votes which all shareholders are entitled to cast thereon, at any regular or special meeting, duly convened after notice to the shareholders of such purpose. The Board of Directors, by a majority vote of those voting, shall have the power to alter, amend, and repeal these By-laws, at any regular or special meeting duly convened after notice of such purpose, subject always to the power of the shareholders to further alter, amend or repeal these By-laws. ARTICLE X - INTERPRETATION OF BY-LAWS All words, terms and provisions of these By-laws shall be interpreted and defined by and in accordance with the Pennsylvania Business Corporation Law, as amended, and as amended from time to time hereafter. -11- EX-3.65 67 ex3-65.txt EXHIBIT 3.65 Exhibit 3.65 CERTIFICATE OF INCORPORATION OF ____________________________ FIRST: The name of the corporation is:________________________________. SECOND: The address of its registered office in the State of Delaware is: ________________________________________________. The name of its registered agent at such address is: ______________________________________________. THIRD: The nature of the business or purposes to be conducted or promoted is: To engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: The total number of shares of stock which the corporation shall have authority to issue is: ___________ shares of Common Stock, par value ____________ per share, amounting in the aggregate to ___________. FIFTH: The name and mailing address of the incorporator is as follows: Name Address ___________________________ ___________________________ SIXTH: In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to wake, alter or repeal the Bylaws of the corporation. SEVENTH: All votes, including those for the erection of directors, may be taken by voice accept as otherwise specifically provided in the corporate bylaws. The stockholders shall not have the right to cumulate their shares in voting for the election of directors. EIGHTH: Whenever a compromise or arrangement is proposed between this corporation and its creditors or any class of them and/or between this corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this corporation under the provisions of Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this corporation under the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors and/or of the stockholders or class of stockholders of this corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this corporation, as the case may be, and also on this corporation. NINTH: A director of this corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided, however, that this shall not exempt a director from liability (i) for any breach of the director's duty of loyalty to the corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director derived an improper personal benefit. In the case of any change in Delaware law which expands the liability of directors, the limited liability of directors shall continue as theretofore to the extent permitted by law; in the case of any change in Delaware law which permits the corporation, without the requirement of any further action by the stockholders or directors of tire corporation, to limit further the liability of directors, then such liability thereupon shall be so limited to the extent permitted by law. IN WITNESS WHEREOF, I have hereunto set my hand and seal this _____ day of _______________. ___________________________________ -2- EX-3.66 68 ex3-66.txt EXHIBIT 3.66 Exhibit 3.66 BY-LAWS OF ------------------------------ ARTICLE I - OFFICES Section 1-1. Registered Office and Registered Agent. The Corporation shall maintain a registered office and registered agent within the State of Delaware, which may be changed by the Board of Directors from time to time. Section 1-2. Other Offices. The Corporation may also have offices at such other places, within or without the State of Delaware, as the Board of Directors may from time to time determine. ARTICLE II - STOCKHOLDERS' MEETINGS Section 2-1. Place of Stockholders' Meetings. Meetings of stockholders may be held at such place, either within or without the State of Delaware, as may be designated by the Board of Directors from time to time. If no such place is designated by the Board of Directors, meetings of the stockholders shall be held at the registered office of the corporation in the State of Delaware. Section 2-2. Annual Meeting. A meeting of the stockholders of the Corporation shall be held in each calendar year, commencing with the year _____ on the _____ day of _____ at _____ o'clock if not a legal holiday, and if such day is a legal holiday, then such meeting shall be held on the next business day. At such annual meeting, there shall be held an election for a Board of Directors to serve for the ensuing year and until their respective successors are elected and qualified, or until their earlier resignation or removal. Unless the Board of Directors shall deem it advisable, financial reports of the Corporation's business need not be sent to the stockholders and need not be presented at the annual meeting. If any report is deemed advisable by the Board of Directors, such report may contain such information as the Board of Directors shall determine and need not be certified by a Certified Public Accountant unless the Board of Directors shall so direct. Section 2-3. Special Meetings. Except as otherwise specifically provided by law, special meetings of the stockholders may be called at any time: (a) By the Board of Directors; or (b) By the President of the Corporation; or (c) By the holders of record of not less than a majority of all the shares outstanding and entitled to vote. Upon the written request of any person entitled to call a special meeting, which request shall set forth the purpose for which the meeting is desired, it shall be the duty of the Secretary to give prompt written notice of such meeting to be held at such time as the Secretary may fix, subject to the provisions of Section 2-4 hereof. If the Secretary shall fail to fix such date and give notice within ten (10) days after receipt of such request, the person or persons making such request may do so. Section 2-4. Notice of Meetings and Adjourned Meetings. Written notice stating the place, date and hour of any meeting shall be given not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. If mailed, notice is given when deposited in the United States Mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the Corporation. Such notice may be given by or at the direction of the person or persons authorized to call the meeting. When a meeting is adjourned to another time or place, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 2-5. Quorum. Unless otherwise provided in the Certificate of Incorporation or in a By-law adopted by the stockholders or by the Board of Directors (or the Incorporators if no first Directors were named in the Certificate of Incorporation) at its organization meeting following the filing of the Articles of Incorporation, the presence, in person or by proxy, of the holders of a majority of the outstanding shares entitled to vote shall constitute a quorum but in no event shall a quorum consist of less than one-third (1/3) of the shares entitled to vote at a meeting. The stockholders present at a duly organized meeting can continue to do business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. If a meeting cannot be organized because of the absence of a quorum, those present may, except as otherwise provided by law, adjourn the meeting to such time and place as they may determine. In the case of any meeting for the election of Directors, those stockholders who attend the second of such adjourned meetings, although less than a quorum as fixed in this Section, shall nevertheless constitute a quorum for the purpose of electing Directors. Section 2-6. Voting List; Proxies. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Upon the willful neglect or refusal of the Directors to produce such a list at any meeting for the election of Directors, they shall be ineligible to any office at such meeting. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for him by proxy. All proxies shall be executed in writing and shall be filed with the Secretary of the Corporation not later than the day on which exercised. No proxy shall be voted or acted upon after three (3) years from its date, unless the proxy provides for a longer period. Except as otherwise specifically provided by law, all matters coming before the meeting shall be determined by a vote by shares. All elections of Directors shall be by written ballot unless otherwise provided in the Certificate of Incorporation. Except as otherwise specifically provided by law, all other votes may be taken by voice unless a stockholder demands that it be taken by ballot, in which latter event the vote shall be taken by written ballot. Section 2-7. Informal Action by Stockholders. Unless otherwise provided by the Certificate of Incorporation, any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders or members, who have not consented in writing. -2- ARTICLE III - BOARD OF DIRECTORS Section 3-1. Number. The business and affairs of the Corporation shall be managed by a Board of one (1) Director or such number as may be approved by the Stockholders of the corporation. Section 3-2. Place of Meeting. Meetings of the Board of Directors may be held at such place either within or without the State of Delaware, as a majority of the Directors may from time to time designate or as may be designated in the notice calling the meeting. Section 3-3. Regular Meetings. A regular meeting of the Board of Directors shall be held annually, immediately following the annual meeting of stockholders, at the place where such meeting of the stockholders is held or at such other place, date and hour as a majority of the newly elected Directors may designate. At such meeting the Board of Directors shall elect officers of the Corporation. In addition to such regular meeting, the Board of Directors shall have the power to fix, by resolution, the place, date and hour of other regular meetings of the Board. Section 3-4. Special Meetings. Special meetings of the Board of Directors shall be held whenever ordered by the President, by a majority of the members of the executive committee, if any, or by a majority of the Directors in office. Section 3-5. Notices of Meetings of Board of Directors. (a) Regular Meetings. No notice shall be required to be given of any regular meeting, unless the same be held at other than the time or place for holding such meetings as fixed in accordance with Section 3-3 of these by-laws, in which event one (1) day's notice shall be given of the time and place of such meeting. (b) Special Meetings. At least one (1) day's notice shall be given of the time, place and purpose for which any special meeting of the Board of Directors is to be held. Section 3-6. Quorum. A majority of the total number of Directors shall constitute a quorum for the transaction of business, and the vote of a majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors. If there be less than a quorum present, a majority of those present may adjourn the meeting from time to time and place to place and shall cause notice of each such adjourned meeting to be given to all absent Directors. Section 3-7. Informal Action by the Board of Directors. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board or committee. Section 3-8. Powers. (a) General Powers. The Board of Directors shall have all powers necessary or appropriate to the management of the business and affairs of the Corporation, and, in addition to the power and authority conferred by these by-laws, may exercise all powers of the Corporation and do all such lawful acts and things as are not by statute, these by-laws or the Certificate of Incorporation directed or required to be exercised or done by the stockholders. (b) Specific Powers. Without limiting the general powers conferred by the last preceding clause and the powers conferred by the Certificate of Incorporation and by-laws of the Corporation, it is hereby expressly declared that the Board of Directors shall have the following powers: (i) To confer upon any officer or officers of the Corporation the power to choose, remove or suspend assistant officers, agents or servants. (ii) To appoint any person, firm or corporation to accept and hold in trust for the Corporation any property belonging to the Corporation or in which it is interested, and to authorize any such person, firm or corporation to execute any documents and perform any duties that may be requisite in relation to any such trust. (iii) To appoint a person or persons to vote shares of another corporation held and owned by the Corporation. (iv) By resolution adopted by a majority of the full Board of Directors, to designate one (1) or more of its number to constitute an executive committee which, to the extent provided in such resolution, shall have and may exercise the power of the Board of Directors in the management of the business and affairs of the Corporation and may authorize the seal of the Corporation to be affixed. -3- (v) By resolution passed by a majority of the whole Board of Directors, to designate one (1) or more additional committees, each to consist of one (1) or more Directors, to have such duties, powers and authority as the Board of Directors shall determine. All committees of the Board of Directors, including the executive committee, shall have the authority to adopt their own rules of procedure. Absent the adoption of specific procedures, the procedures applicable to the Board of Directors shall also apply to committees thereof. (vi) To fix the place, time and purpose of meetings of stockholders. (vii) To purchase or otherwise acquire for the Corporation any property, rights or privileges which the corporation is authorized to acquire, at such prices, on such terms and conditions and for such consideration as it shall from time to time see fit, and, at its discretion, to pay any property or rights acquired by the Corporation, either wholly or partly in money or in stocks, bonds, debentures or other securities of the corporation. (viii) To create, make and issue mortgages, bonds, deeds of trust, trust agreements and negotiable or transferable instruments and securities, secured by mortgage or otherwise, and to do every other act and thing necessary to effectuate the same. (ix) To appoint and remove or suspend such subordinate officers, agents or servants, permanently or temporarily, as it may from time to time think fit, and to determine their duties, and fix, and from time to time change, their salaries or emoluments, and to require security in such instances and in such amounts as it thinks fit. (x) To determine who shall be authorized on the Corporation's behalf to sign bills, notes, receipts, acceptances, endorsements, checks, releases, contracts and documents. Section 3-9. Compensation of Directors. Compensation of Directors and reimbursement of their expenses incurred in connection with the business of the Corporation, if any, shall be as determined from time to time by resolution of the Board of Directors. Section 3-10. Removal of Directors by Stockholders. The entire Board of Directors or any individual Director may be removed from office without assigning any cause by a majority vote of the holders of the outstanding shares entitled to vote. In case the Board of Directors or any one (1) or more Directors be so removed, new Directors may be elected at the same time. Section 3-11. Resignations. Any Director may resign at any time by submitting his written resignation to the Corporation. Such resignation shall take effect at the time of its receipt by the Corporation unless another time be fixed in the resignation, in which case it shall become effective at the time so fixed. The acceptance of a resignation shall not be required to make it effective. Section 3-12. Vacancies. Vacancies and new created directorships resulting from any increase in the authorized number of Directors elected by all of the stockholders having the right to vote as a single class may be filled by a majority of the Directors then in office, although less than a quorum, or by a sole remaining Director, and each person so elected shall be a Director until his successor is elected and qualified or until his earlier resignation or removal. Section 3-13. Participation by Conference Telephone. Directors may participate in regular or special meetings of the Board by telephone or similar communications equipment by means of which all other persons participating in the meeting can hear each other, and such participation shall constitute presence at the meeting. -4- ARTICLE IV - OFFICERS Section 4-1. Election and Office. The Corporation shall have a President, a Secretary and a Treasurer who shall be elected by the Board of Directors. The Board of Directors may elect such additional officers as it may deem proper, including a Chairman and a Vice Chairman of the Board of Directors, one (1) or more Vice Presidents, and one (1) or more assistant or honorary officers. Any number of offices may be held by the same person. Section 4-2. Term. The President, the Secretary and the Treasurer shall each serve for a term of one (1) year and until their respective successors are chosen and qualified, unless removed from office by the Board of Directors during their respective tenures. The term of office of any other officer shall be as specified by the Board of Directors. Section 4-3. Powers and Duties of the President. Unless otherwise determined by the Board of Directors, the President shall have the usual duties of an executive officer with general supervision over and direction of the affairs of the Corporation. In the exercise of these duties and subject to the limitations of the laws of the State of Delaware, these by-laws, and the actions of the Board of Directors, he may appoint, suspend and discharge employees and agents, shall preside at all meetings of the stockholders at which he shall be present, and, unless there is a Chairman of the Board of Directors, shall preside at all meetings of the Board of Directors and, unless otherwise specified by the Board of Directors, shall be a member of all committees. He shall also do and perform such other duties as from time to time may be assigned to him by the Board of Directors. Unless otherwise determined by the Board of Directors, the President shall have full power and authority on behalf of the Corporation to attend and to act and to vote at any meeting of the stockholders of any corporation in which the Corporation may hold stock, and, at any such meeting, shall possess and may exercise any and all of the rights and powers incident to the ownership of such stock and which, as the owner thereof, the Corporation might have possessed and exercised. Section 4-4. Powers and Duties of the Secretary. Unless otherwise determined by the Board of Directors, the Secretary shall record all proceedings of the meetings of the Corporation, the Board of Directors and all committees, in books to be kept for that purpose, and shall attend to the giving and serving of all notices for the Corporation. He shall have charge of the corporate seal, the certificate books, transfer books and stock ledgers, and such other books and papers as the Board of Directors may direct. He shall perform all other duties ordinarily incident to the office of Secretary and shall have such other powers and perform such other duties as may be assigned to him by the Board of Directors. Section 4-5. Powers and Duties of the Treasurer. Unless otherwise determined by the Board of Directors, the Treasurer shall have charge of all the funds and securities of the Corporation which may come into his hands. When necessary or proper, unless otherwise ordered by the Board of Directors, he shall endorse for collection on behalf of the Corporation checks, notes and other obligations, and shall deposit the same to the credit of the Corporation in such banks or depositories as the Board of Directors may designate and shall sign all receipts and vouchers for payments made to the Corporation. He shall sign all checks made by the Corporation, except when the Board of Directors shall otherwise direct. He shall enter regularly, in books of the Corporation to be kept by him for that purpose, a full and accurate account of all moneys received and paid by him on account of the Corporation. Whenever required by the Board of Directors, he shall render a statement of the financial condition of the Corporation. He shall at all reasonable times exhibit his books and accounts to any Director of the Corporation, upon application at the office of the Corporation during business hours. He shall have such other powers and shall perform such other duties as may be assigned to him from time to time by the Board of Directors. He shall give such bond, if any, for the faithful performance of his duties as shall be required by the Board of Directors and any such bond shall remain in the custody of the President. Section 4-6. Powers and Duties of the Chairman of the Board of Directors. Unless otherwise determined by the Board of Directors, the Chairman of the Board, if any, shall preside at all meetings of Directors. The Chairman of the Board shall have such other powers and perform such further duties as may be assigned to such officer by the Board of Directors, including, without limitation, acting as Chief Executive Officer of the Corporation. To be eligible to serve, the Chairman of the Board must be a Director of the Corporation. -5- Section 4-7. Powers and Duties of Vice Presidents and Assistant Officers. Unless otherwise determined by the Board of Directors, each Vice President and each assistant officer shall have the powers and perform the duties of his respective superior officer. Vice Presidents and assistant officers shall have such rank as shall be designated by the Board of Directors and each, in the order of rank, shall act for such superior officer in his absence, or upon his disability or when so directed by such superior officer or by the Board of Directors. Vice Presidents may be designated as having responsibility for a specific aspect of the Corporation's affairs, in which event each such Vice President shall be superior to the other Vice Presidents in relation to matters within his aspect. The President shall be the superior officer of the Vice Presidents. The Treasurer and the Secretary shall be the superior officers of the Assistant Treasurers and Assistant Secretaries, respectively. Section 4-8. Delectation of Office. The Board of Directors may delegate the powers or duties of any officer of the Corporation to any other officer or to any Director from time to time. Section 4-9. Vacancies. The Board of Directors shall have the power to fill any vacancies in any office occurring from whatever reason. Section 4-10. Resignations. Any officer may resign at any time by submitting his written resignation to the Corporation. Such resignation shall take effect at the time of its receipt by the Corporation, unless another time be fixed in the resignation, in which case it shall become effective at the time so fixed. The acceptance of a resignation shall not be required to make it effective. ARTICLE V - CAPITAL STOCK Section 5-1. Stock Certificates. Shares of the Corporation shall be represented by certificates signed by or in the name of the Corporation by (a) the Chairman or Vice Chairman of the Board of Directors, or the President or a Vice President, and (b) the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, representing the number of shares registered in certificate form. If such certificate is countersigned (i) by a transfer agent other than the Corporation or its employee, or (ii) by a registrar other than the corporation or its employee, the signatures of the officers of the Corporation may be facsimiles. In case any officer who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer at the date of issue. Section 5-2. Determination of Stockholders of Record. The Board of Directors may fix, in advance, a record date to determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action. Such date shall be not more than sixty (60) nor less than ten (10) days before the date of any such meeting, nor more than sixty (60) days prior to any other action. If no record date is fixed, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. Section 5-3. Transfer of Shares. Transfer of shares shall be made on the books of the Corporation only upon surrender of the share certificate, duly endorsed and otherwise in proper form for transfer, which certificate shall be cancelled at the time of the transfer. No transfer of shares shall be made on the books of this Corporation if such transfer is in violation of a lawful restriction noted conspicuously on the certificate. Section 5-4. Lost Stolen or Destroyed Share Certificates. The Corporation may issue a new certificate of stock or uncertified shares in place of any certificate therefore issued by it, alleged to have been lost, stolen or destroyed, and the corporation may require the owner of the lost, stolen, or destroyed certificate, or his legal representative to give the Corporation a bond sufficient to indemnify it against claim that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of such new certificate or uncertificated shares. -6- ARTICLE VI - NOTICES Section 6-1. Contents of Notice. Whenever any notice of a meeting is required to be given pursuant to these by-laws or the Certificate of Incorporation or otherwise, the notice shall specify the place, day and hour of the meeting and, in the case of a special meeting or where otherwise required by law, the general nature of the business to be transacted at such meeting. Section 6-2. Method of Notice. All notices shall be given to each person entitled thereto, either personally or by sending a copy thereof through the mail or by telegraph, charges prepaid, to his address as it appears on the records of the Corporation, or supplied by him to the Corporation for the purpose of notice. If notice is sent by mail or telegraph, it shall be deemed to have been given to the person entitled thereto when deposited in the United States Mail or with the telegraph office for transmission. If no address for a stockholder appears on the books of the Corporation and such stockholder has not supplied the Corporation with an address for the purpose of notice, notice deposited in the United States Mail addressed to such stockholder care of General Delivery in the city in which the principal office of the Corporation is located shall be sufficient. Section 6-3. Waiver of Notice. Whenever notice is required to be given under any provision of law or of the Certificate of Incorporation or by-laws of the Corporation, a written waiver, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, Directors, or members of a committee of Directors need be specified in any written waiver of notice unless so required by the Certificate of Incorporation. ARTICLE VII - INDEMNIFICATION OF DIRECTORS AND OFFICERS AND OTHER PERSONS Section 7-1. Indemnification. (a) Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit, or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she is or was (i) a director or officer of the Corporation; or (ii) a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an "indemnitee"), whether the basis of such a proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent authorized by the Delaware General Corporation Law or other Delaware law, against all expense, liability and loss (including attorney's fees, judgements, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. (b) Right to Advancement of Expenses. The right to indemnification conferred in paragraph (a) of this Article shall include the right to be paid by the Corporation the expenses actually and reasonably incurred in defending any proceeding for which such right to indemnification is applicable in advance of its final disposition (hereinafter as "advancement of expenses"); provided, however, that, if the Delaware General Corporation Law requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or an officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a "final adjudication") that such indemnitee is not entitled to be indemnified for such expenses under this Section or otherwise. The financial ability of any indemnitee to make such repayment shall not be a prerequisite to the making of such payment of or for expenses. Such expenses (including attorneys' fees) shall be so paid upon such reasonable terms and conditions, if any, as the Board of Directors deems appropriate. -7- (c) Non-Exclusivity of Rights. The rights of indemnification and to the advancement of expenses conferred in this Article shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, certificate of incorporation, by-law, agreement, vote of stockholders or disinterested directors or otherwise. (d) Indemnification of Employees and Agents of the Corporation. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indemnification, and to the advancement of expenses, to any employee or agent of the Corporation, or other persons, or to directors, officers, employees or agents of other corporations which have been merged into or consolidated with the Corporation, to the fullest extent of the provisions of this Article with respect to the indemnification and advancement of expenses of directors and officers of the Corporation. (e) Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise, or any other person, against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. (f) Independent Legal Counsel. Independent legal counsel may be appointed by the Board of Directors, even if a quorum of disinterested directors is not available, or by a person designated by the Board of Directors. If independent legal counsel, so appointed, shall determine in a written opinion that indemnification is proper under this Article, indemnification shall be made without further action of the Board of Directors. (g) Amendment or Repeal. Any repeal or modification of this Article shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. (h) Changes in Delaware Law. References in this Article to Delaware law or to any provision thereof shall be to such law as it existed on the date this Article was adopted or as such law thereafter may be changed; provided that (a) in the case of any change which limits the indemnification rights or the rights to advancement of expenses which the Corporation may provide, the rights to indemnification and to the advancement of expenses provided in this Article shall continue as theretofore to the extent permitted by law; and (b) if such change permits the Corporation without the requirement of any further action by shareholders or directors to provide broader indemnification rights or rights to the advancement of expenses than the corporation was permitted to provide prior to such change, then the rights to indemnification and the advancement of expenses shall be so broadened to the extent permitted by law. (i) Applicability. The provisions of this Article shall be applicable to all actions, suits or proceedings commenced after its adoption, whether such arise out of acts or omissions which occurred prior or subsequent to such adoption and shall continue as to a person who has ceased to be a director, officer, employee or agent of, or to render services for or at the request of the Corporation or, as the case may be, its parent or a subsidiary, and shall inure to the benefit of the heirs and personal representatives of such person. -8- ARTICLE VIII - SEAL The form of the seal of the corporation, called the corporate seal of [Form of Seal] the Corporation, shall be as impressed adjacent hereto. ARTICLE IX - FISCAL YEAR The Board of Directors shall have the power by resolution to fix the fiscal year of the Corporation. If the Board of Directors shall fail to do so, the President shall fix the fiscal year. ARTICLE X - AMENDMENTS The original or other by-laws may be adopted, amended or repealed by the stockholders entitled to vote thereon at any regular or special meeting or, if the Certificate of Incorporation so provides, by the Board of Directors. The fact that such power has been so conferred upon the Board of Directors shall not divest the stockholders of the power nor limit their power to adopt, amend or repeal by-laws. ARTICLE XI - INTERPRETATION OF BY-LAWS All words, terms and provisions of these by-laws shall be interpreted and defined by and in accordance with the General Corporation Law of the State of Delaware, as amended, and as amended from time to time hereafter. -9- EX-3.67 69 ex3-67.txt EXHIBIT 3.67 Exhibit 3.67 OPERATING AGREEMENT OF --------------------------------- This Operating Agreement (this "Agreement") of ______________________ (the "Company"), is entered into and shall be effective as of the date of the Company's formation, by ______________________(the "Member"), as the sole member of the Company, all in accordance with and pursuant to the provisions of the North Carolina Limited Liability Company Act (the "Act"). STATEMENT OF PURPOSE The Company was formed on _____________ upon the filing of the Articles of organization in the office of the Secretary of State of North Carolina, all in accordance with the Act. NOW, THEREFORE, Member, by execution of this Agreement, hereby continues the Company as a limited liability company upon the following terms and conditions: 1. Company Name. The name of the limited liability company is_________ ____________________. 2. Company Purpose. The purpose of the Company is to engage in any lawful act or activity for which limited liability companies may be organized under the Act. 3. Principal Business Office, Registered Office. The principal business office and registered office of the Company are located at _______________________________________ __________________. The registered agent of the Company is _________________________. 4. Member. The name and the mailing address of the Member is as follows: Name Address ---- ------- _______________________________ ______________________________ 5. Designation of Managers. (a) The Member hereby agrees that the responsibility for managing the business and affairs of the Company shall be delegated to three (3) managers (each of such managers being hereinafter referred to individually as a "Manager" and collectively as "Managers" or the "Board") and hereby consents to the election of ___________________ as Managers of the Company ___________ shall be designated as Chairman of the Board. (b) The Managers shall serve and continue in such office throughout the entire term of the Company unless sooner removed by written action of the Member, by operation of law, by order or decree of any court of competent jurisdiction, by voluntary resignation or upon the dissolution, liquidation and termination of a Manager. (c) In the event of the resignation, removal or termination for any reason whatsoever of a Manager, the written consent of the Member shall be required to designate a new Manager. (d) The Board shall in each case act by a majority of Managers in office. The Board is hereby authorized to appoint one or more officers of the Company (each, an "Officer"), including, without limitation, a President, a Secretary, one or more Vice Presidents and one or more Assistant Vice Presidents and Assistant Secretaries. Each such Officer shall have delegated to him or her the authority and power to execute and deliver on behalf of the Company any and all such contracts, certificates, agreements, instruments and other documents, and to take any such action, as the Board deems necessary or appropriate, all as may be set forth in a written delegation of authority executed by the Board. The Officers shall serve at the pleasure of the Board, and the Board may remove any person as an Officer and/or appoint additional persons as Officers, as the Board deems necessary or desirable. Any person or entity dealing with the Company may conclusively presume that an Officer specified in such a written delegation of authority who executes a contract, certificate, agreement, instrument or other document on behalf of the Company has the full power and authority to do so and each such document shall, for all purposes, be fully authorized, executed and delivered by the Company upon execution by such Officer. 6. Powers. In furtherance of its purposes, the Company shall have the power and is hereby authorized to do any and all acts necessary or convenient to carry out any and all of the objects and purposes of the Company and to perform all acts in furtherance thereof, including, without limitation, (i) to execute and deliver any and all documents and instruments which may be necessary or desirable to carry on the business of the Company, including, without limitation, any and all deeds, contracts, leases, zoning permits and applications, and (ii) to take any and all other actions it deems necessary, desirable, convenient or incidental for the furtherance of the objects and purposes of the Company and shall have and may exercise all of the powers and rights conferred upon a limited liability company formed pursuant to the Act. 7. Limited Liability. Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and neither the Member nor any affiliate, director, officer, partner or controlling person of the Member shall be obligated personally for any such debt, obligation or liability of the Company. 8. Fiscal Year. The fiscal year of the Company shall end on the fiscal year end required for U.S. federal income tax purposes. The Member is authorized to make all elections for tax or other purposes as they may deem necessary or appropriate in such connection, including the establishment and implementation of transition periods. 9. Admission. The Member is hereby deemed admitted as the sole member of the Company upon its execution and delivery of this Agreement. -2- 10. Capital Contributions. On the effective date of this Agreement, the Member contributed $100.00 in cash, and no other property, to the Company. The Member is not required to make any additional capital contributions to the Company. However, the Member, in its sole discretion, may at any time make additional capital contributions to the Company in such amounts as it deems to be appropriate. In no event shall the Member be liable with respect to, or be required to contribute capital to restore, a negative or deficit balance in the Member's capital account, if any, upon the dissolution or liquidation of the Company or the Member's membership interest in the Company or at any other time. 11. Allocation of Profits and Losses. All of the Company's profits and losses shall be allocated to the Member. 12. Distributions. Distributions shall be made to the Member at the times and in the amounts determined by the Manager. 13. Exculpation and Indemnification. Member and the Managers (each an "Indemnified Party") shall, to the fullest extent permitted under the Act or other applicable law, be exculpated from and indemnified by the Company against any liability, loss, damage, penalty, action, claim, judgment, settlement, cost or expense of any kind or nature whatsoever (including all reasonable attorneys' fees, costs and expenses of defense, appeal and settlement of any proceedings instituted against any such Indemnified Party and all costs of investigation in connection therewith) that in any way relates to, or arises out of, or is alleged to relate to or arise out of, any action or inaction on the part of the Company or such Indemnified Party acting on behalf of the Company. The satisfaction of the obligations of the Company under this Section 13 shall be from and limited to the assets of the Company and neither the Manager nor the Member shall have any personal liability on account thereof. The right to indemnification and the advancements and payment of expenses conferred in this Section 13 shall not be exclusive of any other right which an Indemnified Party may have or hereafter acquire under law or equity, provision of this Agreement or otherwise. 14. Assignments. In furtherance of the principles set forth herein, the Member shall not transfer, sell, exchange, assign, donate or otherwise convey (collectively, "Transfer") all or part of its membership interest in the Company if by doing so would cause the Company to be regarded as an entity separate from its owner for federal tax purposes under section 301.7701-3(b)(2)(C) of the U.S. Treasury regulations. Any purported Transfer of all or any part of the Member's membership interest in the Company that would violate this Section 14 shall be null and void and of no force or effect whatsoever. 15. Dissolution. (a) The Company shall dissolve and its affairs shall be wound up upon, and only upon, the written resolution to such effect by the Member. (b) The bankruptcy of the Member shall not cause the Member to cease to be a member of the Company and upon the occurrence of such an event, the business of the Company shall continue without dissolution. -3- (c) In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and shall be distributed in the order of priority, set forth in Section 57C-6-05 of the Act. 16. Miscellaneous. (a) Severability of Provisions. Each provision of this Agreement shall be considered severable, and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, umenforceability or illegality shall not impair the operation of or affect those portions of this Agreement that are valid, enforceable and legal. (b) Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. (c) Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of North Carolina (without regard to conflict of laws principles), all rights and remedies being governed by said laws. (d) Amendments. This Agreement may be modified, altered, supplemented or amended only by the written resolution or other instrument of the Member to such effect delivered to the Manager. IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, has duly executed this Agreement as of the date of the formation of the Company. "Member" By: _________________________________ By: ____________________________ Name: ______________________ Title: _____________________ -4- EX-3.68 70 ex3-68.txt EXHIBIT 3.68 Exhibit 3.68 OPERATING AGREEMENT OF [NAME OF ENTITY] THIS OPERATING AGREEMENT OF _________________________________________ is entered into effective as of ____________________, by __________________, a ___________________________, who agrees to form a limited liability company upon the following terms and conditions: 1. FORMATION AND TERM. 1.1. Formation. The Company was formed upon the issuance of its certificate of organization by the Virginia State Corporation Commission ("SCC") on ___________________________________________ ("Effective Date"). 1.2. Term. The term of the Company began upon the Effective Date and shall continue in perpetuity unless sooner terminated in accordance with this Agreement. 2. DEFINITIONS. The following terms used in this Agreement shall (unless otherwise expressly provided herein or unless the context otherwise requires) have the following respective meanings: "Act." The Virginia Limited Liability Company Act as set forth in the Code of Virginia, as it may be amended or superseded from time to time. "Affiliate or Affiliated Person." When used with reference to a specified person: (i) Any person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is under common control with the specified person; (ii) Any person that is an officer of, partner in, or trustee of, or serves in a similar capacity with respect to, the specified person or of which the specified person is an officer, partner, or trustee, or with respect to which the specified person serves in a similar capacity; (iii) Any person that, directly or indirectly, is the beneficial owner of 10% or more of any class of equity securities of, or otherwise has a substantial beneficial interest in, the specified person or of which the specified person is directly or indirectly the owner of 10% or more of any class of equity securities or in which the specified person has a substantial beneficial interest; and (iv) Any relative or spouse of the specified person. "Agreement." This Operating Agreement, as originally executed and as amended from time to time, as the context requires. "Bankruptcy." The entry of an order for relief with respect to a Member in proceedings under the United States Bankruptcy Code, as amended or superseded from time to time. "Board." "Board" shall have the meaning set forth in Section 8.1 of this Agreement. "Capital Account." As of any date, with respect to any Member, the capital account maintained for that Member as determined under Section 6.1 and the Tax Compliance Addendum. "Capital Contribution." The total amount of money and agreed upon fair market value of property and services contributed to the Company by a Member or its predecessor in interest on the date of contribution. "Code." The Internal Revenue Code of 1986, as amended from time to time. "Company." _____________________________________________________, the limited liability company organized and existing under this Agreement and the Act. "Debt Service." The total of all payments, including principal and interest, due with respect to any loans to the Company or to which the property or assets of the Company are subject. "Disposition." The sale, transfer (whether by gift, devise, intestate succession, operation of law, or otherwise), assignment, or other disposition of or mortgage, hypothecation, or other encumbrance of a Membership Interest or all or any portion of any right(s) related in any way to a Membership Interest, including, but not limited to, rights or interest in capital, profits and losses, distributions, or otherwise. "Fiscal Year." The Fiscal Year the Company shall end on December 31 of each year, unless otherwise required by Section 706(b) of the Code. -2- "Major Decision." "Major Decision" or "Major Decisions" shall require the consent of Members representing two thirds of the outstanding Membership Interests in order to be considered authorized Company actions and Major Decisions shall include the following decisions: (i) To issue guaranties or otherwise become liable in respect of the indebtedness or obligations of another party; (ii) To settle any claim in excess of $50,000 against an insurer in respect of property insurance; (iii) To change the business of the Company, enter into any additional business not contemplated hereby, suspend the business of the Company, or change the name of the Company or of the Facility or any portion thereof; (iv) Except as permitted under Section 5.3, to admit any other person as a Member of the Company; (v) To agree to, or permit a confession of judgment against the Company; (vi) To file or cause the Company to file a voluntary petition for bankruptcy, insolvency, appointment of a receiver or any other proceedings for relief from creditors in any state or federal court; and (vii) Except as provided in Section16.2, to amend this Operating Agreement. Whenever an approval two thirds of Membership Interests is required with respect to a Major Decision, the Board shall deliver to Members a written request for approval ("Request for Approval") which shall include such explanation, information and materials as reasonably necessary to enable Members to evaluate the decision or decisions for which approval is requested. Members agree to act promptly and in any event within fifteen (15) business days following receipt of a complete Request for Approval to review any decision and the information or materials provided by the Board, and to make a decision and convey such decision in writing to the Board. The failure of a Member to act within fifteen (15) business days shall constitute approval of the course of action recommended in writing by the Board. "Majority in Interest" An amount of outstanding Membership Interests greater than fifty percent. "Manager." "Manager" or "Managers" shall have the meaning set forth in Section 8.1 of this Agreement. "Members." The persons so identified on Exhibit A and any person that becomes an additional or substituted Member under this Agreement. -3- "Membership Interest." The ownership interest, expressed as a percentage, of a Member in the Company at any particular time, initially as set forth on Exhibit A, including the right of the Member to any and all benefits to which the Member is entitled and obligations to which it is subject under the Agreement. "Net Cash from Operations." For any Fiscal Year, the excess of Operating Revenues over the sum of (1) Operating Expenses of the Company paid in cash during the year; (2) Debt Service; and (3) any reasonable reserves as determined by the Board for Operating Expenses, for the repair, replacement, or preservation during the current or subsequent years of any Company asset, for Debt Service, or for contingencies and unanticipated obligations. In the event of the dissolution of the Company and pending a sale or other disposition of the assets of the Company in conjunction thereof, Net Cash from Operations shall be added to Net Proceeds from Sale and shall thereafter be deemed to be Net Proceeds from Sale for all purposes. "Net Proceeds from Financing." Net cash realized by the Company from borrowing by the Company or refinancing of indebtedness of the Company, reduced by (1) all expenses related to the borrowing or refinancing; (2) the amount applied toward the payment of any indebtedness of the Company; and (3) reasonable reserves to satisfy other obligations of the Company, operating expenses or anticipated capital expenditures. "Net Proceeds from Sale." Net cash realized by the Company from the sale, exchange, condemnation, or other disposition of all or a portion of the Project or other capital assets of the Company or from policies of insurance for damage to, or destruction of, or defects of title to, capital assets (but if insurance proceeds are applied, or are to be applied, to repairing or replacing the assets damaged or destroyed or curing defects of title, only to the extent those proceeds exceed the actual or estimated costs thereof), reduced by (1) all expenses related to the transaction; (2) the amount applied toward the payment of any indebtedness of the Company; and (3) reasonable reserves to satisfy other obligations of the Company or anticipated capital expenditures. "Net Profits or Net Losses." These terms shall have the meaning given in the Tax Compliance Addendum. "Operating Expenses." All costs and expenses of ownership and operation of the Company and the Facility, including, but not limited to, ground rent, costs of operation, taxes, insurance premiums, utility costs, charges for cleaning and cleaning supplies, costs of repairs and maintenance, costs and fees associated with management, payroll costs, costs for general, administrative and overhead, audit and appraisal expenses, management fees and commissions, any other expenses incurred in the ordinary course of operating the Project and the Company, and reserves for operating expenses and capital expenditures. -4- "Operating Revenues." All cash revenue from the operation of the Facility (excluding refundable deposits or unearned rent), interest income received during the year, and reserves set aside in prior years and no longer deemed necessary for the Company's business. "Prime Rate." The prime rate (or base rate) reported in the "Money Rates" column or section of The Wall Street Journal as being the base rate on corporate loans at larger U.S. Money Center banks on the first date on which The Wall Street Journal is published in each month. In the event The Wall Street Journal ceases publication of the Prime Rate, then the "Prime Rate" shall mean the "prime rate" or "base rate" announced by the bank with which the Company has its principal banking relationship (whether or not such rate has actually been charged by that bank) or as otherwise designated by the Board. In the event that bank discontinues the practice of announcing that rate, Prime Rate shall mean the highest rate charged by that bank on short-term, unsecured loans to its most credit-worthy large corporate borrowers. "Regulations." Regulations issued under the Code by the Department of the Treasury, as amended from time to time. 3. NAME, OFFICE OF COMPANY, AND REGISTERED AGENT. 3.1. Name. The name of the Company is __________________________________. The business of the Company may be conducted under such trade or fictitious names as the Board may determine. 3.2. Principal Office. The principal office of the Company, at which the Company's records are to be kept, shall be at ___________________________________________, or such other place as the Board may determine. The Board shall give notice to the Members of any change of the principal office. 3.3. Registered Agent. The Company's agent for service of process in the Commonwealth of Virginia shall be _______________________________________________, or such other person as the Board may designate. 3.4. The Company shall be qualified to transact business in such other jurisdictions, and appoint such registered agents, as is deemed necessary from time to time by the Board. -5- 4. BUSINESS OF THE COMPANY. The Company shall be authorized to conduct any lawful business permitted under the laws of the Commonwealth of Virginia and all activities necessary, incidental or related thereto. 5. MEMBERS, MEMBERSHIP INTERESTS, CAPITAL, AND FINANCIAL OBLIGATIONS. 5.1. Members, Membership Interests, and Capital Contributions. (a) The names and Membership Interests of the Members are set forth on Exhibit A. (b) The Initial Capital Contributions of the Members, which the Members agree have already been made or will be made simultaneously with the execution of the Agreement, are set forth on Exhibit A. 5.2. Additional General Provisions on Capital and Obligations of Members. (a) No Member shall have any right to be repaid such Member's Capital Contributions in favor of any other Member. (b) No Member shall be entitled to be paid interest on its Capital Contributions or Capital Account. (c) No Member shall be entitled to withdraw any part of its Capital Contribution or its Capital Account or to receive any distribution from the Company, except as specifically provided in this Agreement. Except as otherwise provided herein, there shall be no obligation to return to any Member or withdrawn Member any part of such Member's Capital Contributions to the Company for so long as the Company continues in existence. (d) The liability of each Member for the losses, debts, liabilities, and obligations of the Company shall be limited to the balance of its Capital Account, its share of any undistributed assets of the Company, and (only to the extent required by the Act or other applicable law) any amounts previously distributed to it from the Company. No Member shall be required to make additional capital contributions nor shall any Member be required to guarantee any Company obligations. (e) If the Company requires additional capital, then the Board may cause the Company to borrow from the Members upon such terms and conditions as Members willing to lend such money may require as a condition of making such loans available; provided that the terms of any such Member loans shall commensurate with rates of interest and repayments terms then prevailing in the commercial loan market; and provided, further, that all Members shall have a pro rata opportunity to participate in the funding of such loans. If no Members are willing to lend funds, then the Board shall have the authority to cause the Company to borrow funds from third party lenders on such terms and conditions as are required to obtain such funds. -6- 5.3. Disposition of Membership Interests (a) Except as permitted by Section 5.3(b), no Member may make a Disposition of all or any part of its Membership Interest to any person that is not a Member without compliance with Section 5.3(b). Any Disposition to a person that is not a Member not made in compliance with Section 5.3(b) shall be void ab initio. (b) If a Member wishes to make a Disposition of all or a part of its Membership Interest to a person that is not a Member, it shall give the other Members a Selling Notice, specifying in writing the price, conditions and terms upon which it is willing to sell. The other Members shall have the option to purchase the entire offered Membership Interest at the price and upon the conditions and terms set forth in the Selling Notice. The option may be exercised by giving notice to the offering Member within thirty (30) days from the date the Selling Notice is given. If more than one Member desire to purchase, they may purchase the entire offered Membership Interest in proportion to their respective Membership Interests, unless they otherwise agree. The closing of the purchase shall be not more than sixty (60) days from the date of the Selling Notice. If no Member elects to purchase, then the offering Member may make a Disposition of the entire offered Membership Interest at a price not below nor upon terms more advantageous to the purchaser than those contained in the Selling Notice. If the Disposition is not made and consummated within seventy-five (75) days after the date of the Selling Notice, the offering Member may not thereafter dispose of all or any part of its Membership Interest without again complying with this Section. 6. TAX MATTERS. 6.1. Maintenance of Member Capital Accounts. A separate Capital Account shall be established and maintained for each Member throughout the term of the Company in accordance with the Tax Compliance Addendum and the Code and applicable Regulations that must be complied with in order for the allocations of Net Profits and Net Losses to have "economic effect" under such Regulations. 6.2. Allocations of Net Profits, Net Losses, and Credits of the Company. Except as otherwise expressly provided herein, Net Profits and Net Losses, or specific items thereof, and tax credits for a Fiscal Year, shall be allocated among the Members for the Fiscal Year as provided in the Tax Compliance Addendum appended hereto as Exhibit B. 6.3. Tax Year and Accounting Matters. The taxable year of the Company shall be the Fiscal Year. The Company shall adopt such methods of accounting and file its tax returns on the methods of accounting determined by the Board. 6.4. Tax Elections. The Board shall, upon the request of a Majority in Interest of the Members, or, in the case of the election under ss. 754 of the Code, upon the request of any Member, make all elections required or allowed under the Code or the Regulations including, but not limited to, elections affecting the amount, timing, availability, or allocation of tax credits, elections pursuant to ss.ss. 168, 709, and 754 of the Code and the Regulations interpreting ss. 704(b) of the Code, and all elections required or allowed under state or local law or regulations. Unless approved by a Majority in Interest of the Members, no election shall be made that would create a benefit to one or more Members and a detriment to the other Members. -7- 6.5. Tax Returns. The Board shall cause to be prepared all applicable tax returns at the expense of the Company. The Board shall timely file each year all applicable federal, state, and local tax returns of the Company, subject to its right to so file an extension The Board shall furnish to each Member any schedules or additional information reasonably required by a Member in order for the Member to file such Member's tax returns and fulfill such Member's financial reporting obligations in a timely manner. 6.6. Tax Matters Partner. The undersigned Member shall be the "Tax Matters Partner," as that term is defined in Code Section 6321(a)(7), but each Member shall otherwise be considered to have retained such rights (and obligations, if any) as are provided for under this Agreement or the Code with respect to any consent, examination, proposed adjustment or proceeding relating to Company items. 6.7. IRS Proceedings. The Board shall promptly give notice to the Members of the proposed audit or adjustments of any Company tax returns, shall promptly give notice to the Members of the time and place of meetings with representatives of the Internal Revenue Service, and shall promptly provide the Members with copies of all communications to and from the Internal Revenue Service. 6.8. Not Foreign Person. Each Member hereby certifies, and shall, if so reasonably requested by any Member, recertify under penalty of perjury, that it is not a "foreign person" within the meaning of Section 1445 of the Code. 6.9. Intention of Members. The Members acknowledge that it is their intent that the Company will be considered a "partnership" under subchapter K of the Code and that the Company will not be subject to any federal or state income taxation. If, as a result of changes in the Code, Regulations, or otherwise, tax counsel to any Member advises that the Company is or may become subject to federal income taxation, all Members agree to use reasonable best efforts to amend this Agreement, modify the form of business entity, or take any other reasonable action necessary to achieve the Members' intention, provided that such action shall not materially adversely change the approval rights or liability of the Members. 7. DISTRIBUTIONS. 7.1. Net Cash from Operations. Net Cash from Operations shall be distributed to the Members pro rata in proportion to their respective Membership Interests. 7.2. Net Proceeds from Financing. Net Proceeds from Financing shall be distributed to the Members in the same manner as in Section 7.1, above. 7.3. Net Proceeds from Sale. Except as provided in the Tax Compliance Addendum, Net Proceeds from Sale shall be distributed to the Members in the same manner as in Section 7.1, above. -8- 7.4. Mid-Year Transfers. In the case of all or part of any Membership Interest that has been transferred during the Fiscal Year, unless otherwise agreed by the parties: (a) Net Cash from Operations shall be distributed to the holder of the Membership Interest on the date of distribution. (b) Net Proceeds from Sale or Financing allocable to the Membership Interest (or portion of a Membership Interest) shall be distributed to the holder of the Membership Interest on the date of distribution. 7.5. Distributions to Pay Taxes. (a) The Company shall use its best efforts to distribute sufficient Net Cash from Operations to the Members each year to provide each Member with sufficient cash to fund the payment of federal and state income tax liabilities attributable to such Member's interest in the Company. The Board shall take this goal into account in formulating any cash flow plan for the Company. For this purpose, the Board shall make a theoretical calculation of the Members tax liabilities based on reasonable assumptions and projections of the Members' taxable income and the character thereof, including the then prevailing maximum regular or alternative minimum Federal, state and local tax rates, income based on the net cumulative amount of taxable income attributable to the Company (i.e., income shall be netted against loss on a cumulative basis to the extent that such offsets are allowable under then prevailing law and regulations), and utilization of all items of loss and credit. (b) Such distributions to pay taxes shall be made to the Members in proportion to their respective allocable shares of Net Profits calculated above for such Fiscal Year determined in accordance with the provisions of the attached Tax Compliance Addendum hereof. (c) The Board, shall, in its reasonable discretion, adjust the rates of such distributions and the method of calculation provided for in this Section 7.5 to reflect varying rates of taxation for unearned income, long-term capital gains, or similar items, to account for tax liability arising as a result of the application of the alternative minimum tax for individuals, or any other changes made to the Code or the Virginia income tax laws that has the effect of requiring the Member to pay more or less of those taxes on income generated by the Company's operations. (d) The distributions to pay taxes required by this Section 7.5 shall not be made if, in the reasonable opinion of the Board, such distributions would significantly impair the Company's financial status and impair its ability to conduct business operations as contemplated. Furthermore, such distributions shall not be made in contravention of applicable laws of the Commonwealth of Virginia. (e) To the extent the Company does not distribute cash to pay taxes for any given Fiscal Year, the Company shall distribute such cash in subsequent years after making distributions for current taxes of such years and prior to making any other distributions. 7.6. Interim Distributions. The Board, in its reasonable discretion, shall make interim distributions of cash to pay taxes or of Net Cash from Operations during a Fiscal Year; provided, however, that when financial statements for each Fiscal Year are complete, the amount properly distributable to the Members for that Fiscal Year shall be determined and the interim distributions of cash to pay taxes, Net Proceeds from Operations, and all other distributions to the Members (both for that Fiscal Year, and, if need be, for subsequent Fiscal Years), shall be adjusted to reflect the amount properly distributable to each Member for that Fiscal Year. -9- 8. MANAGEMENT. 8.1. Designation of Managers. (i) The Members hereby agree that the responsibility for managing the business and affairs of the Company shall be delegated to three (3) managers (each of such managers of the Company being hereinafter referred to individually as a "Manager" and collectively as the "Managers" or the "Board") and hereby consents to the election of __________________________________ as the Managers of the Company. (ii) The Managers shall serve and continue in such office throughout the entire term of the Company unless sooner removed by written action of the Members by operation of law, by order or decree of any court of competent jurisdiction, or by voluntary resignation or upon the dissolution, liquidation and termination of a Manager. (iii) In the event of the resignation, removal or termination for any reason whatsoever of a Manager, the written consent of the Members shall be required to designate a new manager. (iv) The Board shall in each case act by a majority of Managers in office. The Board is hereby authorized to appoint one or more officers of the Company (each, an "Officer"), including, without limitation, a President, a Secretary, one or more Vice Presidents and one or more Assistant Vice Presidents and Assistant Secretaries. Each such Officer shall have delegated to him or her the authority and power to execute and deliver on behalf of the Company any and all such contracts, certificates, agreements, instruments and other documents, and to take any such action, as the Board deems necessary or appropriate, all as may be set forth in a written delegation of authority executed by the Board. The Officers shall serve at the pleasure of the Board, and the Board may remove any person as an Officer and/or appoint additional persons as Officers, as the Board deems necessary or desirable. Any person or entity dealing with the Company may conclusively presume that an Officer specified in such a written delegation of authority who executes a contract, certificate, agreement, instrument or other document on behalf of the Company has the full power and authority to do so and each such document shall, for all purposes, be duly authorized, executed and delivered by the Company upon execution by such Officer. By execution hereof, the Members hereby appoint as the initial Officers the persons specified in Exhibit C attached hereto, who shall hold the office set forth opposite his or her name. 8.2. Management. (a) Subject to the receipt of approval by two-thirds of the Membership Interests with respect to Major Decisions, the Board shall otherwise have the exclusive right to manage the business of the Company and to make all decisions regarding the business of the Company. The Board may delegate prescribed functions to any employee, agent, or consultant of the Company or the Board. (b) Subject to the receipt of approval by two-thirds of the Membership Interests with respect to Major Decisions, the Board is otherwise granted the right, power, and authority to do in the name of, and on behalf of, the Company all things that, in its sole judgment, are necessary, proper, or desirable to carry out the purposes of the Company. (c) All actions taken by the Board on behalf of the Company from the date of its organization to the date of this Agreement are ratified and confirmed. -10- 8.3. Duties of the Board. (a) The Board shall provide for the business and operation of the Company and the Facility and shall devote so much of its time thereto as it determines to be necessary for the efficient operation and management of the Company's business. (b) Not less often than once each Fiscal Year, and on or before January 1st of such year, beginning January 1, 2000, the Board shall prepare and submit to the Members an annual Budget for such Fiscal Year. The Budget shall be considered and approved as set out in Section 8.5. 8.4. Execution of Documents. (a) Any instrument may be executed and delivered on behalf of the Company by a Manager or Officer, including any deed, deed of trust, note, or other evidence of indebtedness, lease agreement, security agreement, financing statement, contract of sale, or other instrument purporting to convey or encumber, in whole or in part, any or all of the assets of the Company, at any time held in its name, or any receipt or compromise or settlement agreement with respect to the accounts receivable and claims of the Company; and no other signature shall be required for any such instrument to be valid, binding, and enforceable against the Company in accordance with its terms. All persons may rely thereon and shall be exonerated from any and all liability if they deal with a Manager of Officer on the basis of documents approved and executed on behalf of the Company by the Manager. (b) Any person dealing with the Company or its Managers, Officers or Members may rely upon the certificate signed by a Manager as to: (i) the identity of the Members, Managers or Officers; (ii) acts by the Members, Managers or Officers; (iii) any act or failure to act by the Company or as to any other matter whatsoever involving the Company or any Member, Manager or Officer. 8.5. Budget Process. On or before the date of the annual meeting of the Company, the Members shall meet to review, amend and approve the proposed Budget referenced in Section 8.3(b). The Budget must be approved, in writing, by the Members. Additions or amendments may be proposed by the Board and must be approved by the Members. 8.6. Annual Meeting. The annual meeting of the Company shall be held on the second Tuesday in January of each Fiscal Year. 9. COMPENSATION AND REIMBURSEMENT OF MEMBERS AND AFFILIATES. 9.1. Compensation for Management Services. No Manager or Officer shall receive no compensation for its services rendered to the Company as Manager or Officer. -11- 9.2. Expenses. The Managers, Officers and the Members shall be entitled to have the Company pay, or to be reimbursed by the Company for, all expenses reasonably incurred by it in connection with Company business as long as such expenses are reasonably contemplated by the Budget. 10. RIGHTS AND POWERS OF THE MEMBERS AND EXERCISE OF RIGHTS AND POWERS. The Members shall have no right to control or manage, nor shall they take any part in the control or management of, the Company business, but they may exercise the rights and powers of Members under this Agreement. 11. AUTHORITY OF THE BOARD, OFFICERS AND MEMBERS, AND AFFILIATES TO DEAL WITH THE COMPANY. 11.1. Transaction of Business. The Board may cause the Company to transact business with the Board, any Member, or any Affiliate thereof for the performance of services or purchase of goods or other property that may at any time be reasonably required in carrying on the business of the Company; except that the compensation or price therefor shall not exceed that prevailing in arm's length transactions by others rendering similar services on comparable transactions as an on-going activity in the same geographical area. Provided, however, if such business falls into the category of a Major Decision, then the provisions contemplated in this Agreement for approval of Major Decisions shall apply. 12. EXCULPATION AND INDEMNIFICATION OF THE MANAGERS AND OFFICERS. 12.1. Exculpation of the Managers and Officers. The Manager and Officers of the Company shall not be liable, responsible, or accountable in damages or otherwise to the Company or to any Member, or to any successor, assignee, or transferee of the Company or of any Member, for any losses, claims, damages, or liabilities arising from (i) any act performed, or the omission to perform any act, within the scope of the authority conferred on the Manager and Officers by this Agreement, except by reason of acts or omissions of a Manager or Officer found by a court of competent jurisdiction upon entry of a final judgment to be due to bad faith, fraud, willful misconduct, or a knowing violation of the criminal law; (ii) the performance by a Manager or Officer of, or the omission to perform, in good faith any acts on advice of legal counsel, accountants, or other professional consultants to the Company; or (iii) the negligence, dishonesty, or bad faith of any consultant, employee, or agent of the Company selected or engaged by a Manager or Officer in good faith. 12.2. Indemnification and Advances to the Manager and Other Persons. (a) The Company shall, subject to the limitations of Section 12.1, indemnify, defend, and hold each Manager and Officer harmless from and against, and hold the Company's and the Manager's or Officer's respective Affiliates, agents, employees, advisors, consultants, and other independent contractors harmless from and against any loss, liability, damage, fine, judgment, penalty, attachment, cost, or expense, including reasonable attorneys' fees, arising from any demands, claims, or lawsuits against the Manager or Officer or the Company's or the Manager's of Officer's respective Affiliates, agents, employees, advisors, consultants, or other independent contractors, in or as a result of or relating to its capacity, actions, or omissions as a -12- Manager of Officer, or as an Affiliate, agent, employee, advisor, consultant, or other independent contractor of the Company, the Board or a Manager or Officer, or arising from or relating to the business or activities undertaken on behalf of the Company, including, without limitation, any demands, claims, or lawsuits initiated by a Member; provided that the acts or omissions of the Manager or Officer or the Company's or the Manager's of Officer's Affiliate, agent, employee, advisor, consultant, or other independent contractor seeking indemnification are not found by a court of competent jurisdiction upon entry of a final judgment to be the result of bad faith, fraud, willful misconduct, or a knowing violation of the criminal law of the person seeking indemnification, or to have violated such a lesser standard of conduct as under applicable law affirmatively prevents indemnification hereunder. The termination of any action, suit or proceeding by judgment, order, settlement, plea of nolo contendere or its equivalent, or conviction shall not, of itself, create a presumption that the Manager of Officer or the Company's or the Manager's or Officer's respective Affiliates, agents, employees, advisors, consultants, or other independent contractors shall not be entitled to indemnification hereunder or that the Manager of Officer or the Company's or the Manager's or Officer's respective Affiliates, agents, employees, advisors, consultants, or other independent contractors did not act in good faith and in a manner which it or they reasonably believed to be in or not opposed to the best interests of the Company. (b) In the event the indemnification obligation of this Section 12.2 shall be deemed unenforceable to any extent by a court of competent jurisdiction, such unenforceable portion shall be modified or stricken so as to give effect to this Section 12.2 to the fullest extent permitted by law. (c) The right of indemnification hereby provided shall not be exclusive of or affect any other rights that a Manager or Officer or any of its Affiliates may have. Nothing contained in this Section 12.2 shall limit any lawful rights to indemnification existing independently of this Section 12.2. (d) Notwithstanding anything contained herein to the contrary, any amount which the Manager or Officer or the Company's or the Manager's or Officer's respective Affiliates, agents, employees, advisors, consultants, and other independent contractors is entitled to receive under this Section 12.2 shall be paid only out of the assets of the Company and any insurance proceeds available to the Company for such purposes. Notwithstanding anything contained herein to the contrary or under any law, no Member of the Company shall be personally liable for the payment of any amount that a Manager or Officer or an Affiliate, agent, employee, advisor, consultant, or other independent contractor of the Company or a Manager or Officer is entitled to receive under this Section 12.2, to make any capital contribution to the Company or to return any capital distribution made to it by the Company or to restore any negative capital account balance of that Member, to enable the Company to make any payment under this Section 12.2. 13. ACCOUNTS, BOOKS, RECORDS, ACCOUNTING, REPORTS, AND TAX MATTERS. 13.1. Bank Accounts. (a) Funds of the Company shall be deposited in such account or accounts of a type, in form and name, and in a bank(s) or other financial institution(s) the deposits of which are insured by the Federal Deposit Insurance Corporation or other depository insurance institutions, as selected by the Board. The Board shall arrange for the appropriate conduct of such accounts. Funds may be withdrawn from such accounts only for bona fide and legitimate Company purposes and may from time to time be invested in such short-term securities, money market funds, certificates of deposit, or other liquid assets as the Board deems appropriate. (b) The Members acknowledge that the Board may maintain Company funds in accounts, money market funds, certificates of deposit, or other liquid assets in excess of the insurance provided by the Federal Deposit Insurance Corporation or other depository insurance institutions, and that the Board shall not be accountable or liable for any loss of such funds resulting from failure or insolvency of the depository institution holding such funds. -13- 13.2. Maintenance of Books and Records. (a) At all times during the term of the Company, the Board shall keep, or cause to be kept, full and faithful books of account, records, and supporting documents, which shall reflect, completely, accurately, and in reasonable detail, each transaction of the Company (including, without limitation, transactions with the Managers, Officers, Members, or Affiliates of a Manager, Officer or any Member). The books of account, records, and all documents and other writings of the Company shall be kept and maintained either at the principal office of the Company described in Section 3.2, or at the principal office of the Company. (b) Required Records. The Board shall cause the Company to keep at its principal office the following: (i) a current list of the full name and last known business address of each Member, in alphabetical order; (ii) a copy of the Certificate of Formation of the Company, and all Articles of Amendment and Certificates of Amendment thereto; (iii) copies of the Company's federal, state, and local income tax returns and reports, if any, for the three most recent years; (iv) a copy of this Agreement, as amended; (v) copies of the Company's financial statements for the three most recent years. 14. DISSOLUTION AND TERMINATION. 14.1. Events Causing Dissolution and Winding Up. The Company shall be dissolved and wound up upon the first to occur of one of the following events: (a) As required by specific provisions of this Agreement. (b) As otherwise required by the Act. 14.2. Liquidating the Company. (a) if the Board determines that it is in the best interest of the Company and the Members, the Board may sell or otherwise liquidate the Company assets in a bona fide sale or sales to outsiders at such prices, and upon such terms and at such times as it may determine, having due regard to the activity and the condition of the relevant market and general financial and economic conditions and consistent with its fiduciary obligations to the Members. During the period of winding up of the Company, the party responsible therefor may exercise all powers granted to the Board under this Agreement, and may adopt such plan, method, or procedure as may be reasonable to effect an orderly winding up. (b) (i) After paying or providing for the payment of all Company debts, the proceeds of sale shall be distributed as Net Proceeds from Sale to the Members in accordance with their Capital Accounts after adjustments thereof to reflect allocations in accordance with the Tax Compliance Addendum and distributions under Sections 7. -14- (ii) If the liquidating party determines that an immediate sale would be financially inadvisable, it may defer sale of the Company assets for a reasonable time, or distribute the assets in kind. If any assets are distributed in kind, then they shall be distributed on the basis of the fair market value thereof as determined by appraisal, and shall be deemed to have been sold at fair market value for purposes of the allocations under the Tax Compliance Addendum. Unless the Members otherwise agree, there shall be distributed to the Members, as tenants-in-common, undivided interests in the assets equal to the distributions to which they are entitled under Section 7. (c) If the Company is "liquidated" within the meaning of Regulations Section 1.704-1(b)(2)(ii)(G), then the liquidating distribution shall be made by the later of (i) the end of the Company Fiscal Year in which liquidation occurs, or (ii) ninety (90) days after the date of liquidation. (d) Within a reasonable time following the completion of the liquidation of the Company, the Board shall supply to each of the Members a statement that shall set forth the assets and the liabilities of the Company as of the date of complete liquidation and each Member's portion of the distributions pursuant to this Agreement. Upon completion of the liquidation of the Company and the distribution of all Company assets, the Company shall terminate, and the Board shall have the authority to execute and record a Certificate of Cancellation of the Company as well as any and all other documents required to effectuate the dissolution and termination of the Company. 15. MISCELLANEOUS PROVISIONS. 15.1. Construction. This Agreement shall not be construed more strictly against one party than any other by virtue of the fact that it may have been prepared by counsel for one of the parties, it being recognized that each party has contributed substantially and materially to the preparation of this Agreement. 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. 15.2. Successors and Assigns. Subject to the limitations on transferability contained herein, each and all of the covenants, terms, provisions, and agreements herein contained shall be binding upon and inure to the benefit of the successors, heirs, and assigns (including an assignee of all or part of a Membership Interest) of the respective parties hereto. 15.3. Counterparts. This Agreement and any amendment hereof may be executed in any number of counterparts and by each party on a separate counterpart, each of which, when so executed and delivered, shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. In producing this Agreement, it shall not be necessary to produce or account for more than one such counterpart signed by the person against whom enforcement is sought. 15.4. No Waivers by Implication. No waiver of any provision of this Agreement shall be effective unless the same shall be set forth in a writing signed by each party, and then only to the extent specifically set forth therein. No course of dealing on the part of any party, or their respective officers, directors, employees, consultants, or agents; nor any failure or delay by any party with respect to exercising any of their respective rights, powers, or privileges under this Agreement or law shall operate as a waiver thereof. No waiver by any party of any condition or the breach of any term, covenant, representation, or warranty contained in this Agreement, whether by conduct or otherwise, in any one or more instances shall be deemed a further or continuing waiver of any condition or covenant, representation, or warranty of this Agreement. -15- 15.5. Notices. Unless otherwise specified herein, all notices, requests, and other communications to any party hereunder shall be in writing (including telexes, telecopies, facsimile transmissions, and similar writings) and shall be given to such party at its address or telecopier number set forth in the records of the Company or such other address or telecopier number as such party may hereafter specify for that purpose by notice to the Company. A duplicate copy of each notice given hereunder shall be given to the Board. Each such notice, request, or other communication shall be effective (a) if given by telecopier, when such telecommunication is transmitted and confirmation of receipt obtained; (b) if given by mail, upon receipt; or (c) if given by any other means, when delivered at the address specified in this Section 15. 15.6. Reproductions. This Agreement and all other documents, instruments, and agreements in the possession of the parties that relate hereto or thereto may be reproduced by any party, and any such reproduction shall be admissible in evidence, with the same effect as the original itself, in any judicial or other administrative proceeding, whether the original is in existence. No party will object to the admission in evidence of any such reproduction, unless the objecting person reasonably believes that the reproduction does not accurately reflect the contents of the original and objects on that basis. 15.7. Entire Agreement. This Agreement, together with the exhibits, schedules, and attachments to this Agreement, embodies the sole and entire operating agreement and understanding among the Members, and supersedes all prior agreements and understandings between such parties relating to the subject matter hereof and thereof. No representation, promise, inducement, or statement of intention has been made by any party that is not embodied in this Agreement, the exhibits or schedules hereto, or the statements, deeds, certificates, schedules, or other documents delivered pursuant hereto or in connection with the transactions contemplated hereby. No party shall be bound by or be liable for any alleged representation, promise, inducement, or statement of intention not so set forth. 15.8. Exhibits, Schedules, and Attachments. The exhibits, schedules, and attachments attached to this Agreement are incorporated herein and shall be considered a part of this Agreement for the purposes stated herein. If there is a conflict between the terms, conditions, representations, warranties, and covenants contained in this Agreement and any exhibits, schedules, and attachments to this Agreement, then the provisions in this Agreement shall control. 15.9. Rights Cumulative. Except as set forth herein, all rights, powers, and remedies herein given to the parties are cumulative and not alternative, and are in addition to all statutes or rules of law; any forbearance or delay by the parties in exercising the same shall not be deemed to be a waiver thereof, and the exercise of any right or partial exercise thereof shall not preclude the further exercise thereof, and the same shall continue in full force and effect until specifically waived by an instrument in writing executed by the parties. 15.10. Governing Law. This Agreement, and the rights and obligations of the parties hereunder, shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia applicable to contracts made and to be performed therein (without giving effect to its choice of law principles). -16- 15.11. Venue. Venue for any suit involving this Agreement shall be in either the Circuit Court for the County of ________________________, Virginia or the United States District Court for the Eastern District of Virginia, sitting in the City of Alexandria, Virginia. Each Member hereby irrevocably submits to personal jurisdiction of such court, and, provided that a copy of any service is mailed via certified mail, return receipt requested to the Member at the notice address for such Member, authorizes, appoints and empowers the President as his Attorney in Fact to accept service of process on behalf of such Member 15.12. Severability. If any provision of this Agreement, or the application thereof to any person or circumstance, is held invalid, such invalidity shall not affect any other provision which can be given effect without the invalid provision or application, and to this end the provisions hereof shall be severable. 15.13. Captions. The captions of and sections in this Agreement are for convenience of reference only, shall not define or limit the provisions hereof, and shall not have any legal or other significance whatsoever. 15.14. Third Party Rights. It is the intention of the parties that nothing in this Agreement shall be deemed to create any right with respect to any person or entity not a party to this Agreement or the successor or assign thereof. 15.15. Survival. Except as otherwise provided in this Agreement, all representations, warranties, covenants, and agreements made in this Agreement, and in any document, instrument, agreement, assignment, certificate, or statement delivered pursuant hereto or in connection herewith, shall survive the dissolution and final liquidation of the Company. 15.16. Investment Representation. Each Member, by executing this Agreement, represents and warrants that its interest in the Company has been acquired by it for its own account for investment and not with a view to resale or distribution thereof and that it is fully aware that in agreeing to admit it as a Member, the other Members and the Company are relying upon the truth and accuracy of this representation and warranty. 15.17. Legal Costs. In the event any suit or action at law or in equity, administrative proceeding, insolvency proceeding, or trial or appellate proceeding is brought by the Company or any Member against another Member for a breach of any obligation hereunder, the prevailing party shall be entitled to recover from the other party the reasonable costs and expenses incurred in connection with such suit or action brought pursuant to this Agreement, including, without limitation, attorney's fees. 15.18. No Brokers. Neither the Company nor any Member shall be obligated to pay any brokerage fees or commissions in connection with the execution of this Agreement. Each Member hereby agrees to indemnity and hold harmless the Company and each Member from and against all claims, losses, damages, and expenses (including, without limitation, legal fees and disbursements) related to any other claim for brokerage fees or commissions as a result of the misrepresentations, inaccuracies, acts, or omissions of such Member in this regard. -17- 16. AMENDMENT. 16.1. General Amendments. No amendment or modification of this Agreement shall be effective unless approved in writing by Members representing two-thirds of the Membership Interests. 16.2. Changes Affecting Members. Notwithstanding anything to the contrary in Section 16.1, any amendment to this Agreement that would adversely affect the federal income tax treatment to be afforded a Member, adversely affect the liabilities of a Member, modify the consent and approval rights reserved by the Members, or change the method of allocation of Net Profits or Net Losses or Gain or Loss from Sale as provided in the Tax Compliance Addendum, or the distribution of Net Cash from Operations or Net Proceeds from Sale or Financing as provided in Section 7, shall require the approval of the Member affected; except that the Board is authorized to modify Section 7 or the Tax Compliance Addendum, without the consent of the Members, if, upon advice of counsel for the Company, the modification is necessary to cause the allocations under Section 7 or the Tax Compliance Addendum to have substantial economic effect or to be in accordance with the Members' Membership Interests under Section 704 of the Code and the most recently proposed or final regulations thereunder, so long as the modification does not, by its terms, alter the limited liability of the Members and provided that such modification is not likely to have a material effect on the amounts distributable to any Member pursuant to this Agreement. IN WITNESS WHEREOF, the undersigned have each executed or caused this Agreement to be executed under seal as of the day and year first above written. MEMBER [NAME OF ENTITY] By: By: ____________________________ Name: __________________________ Title: _________________________ -18- Exhibit 3.68 EXHIBIT A TO THE OPERATING AGREEMENT OF [NAME OF ENTITY] Membership Initial Capital Interest Contributions Members In the Company [NAME OF ENTITY] ______% $________ [ADDRESS] Exhibit 3.68 EXHIBIT B TO THE OPERATING AGREEMENT OF [NAME OF ENTITY] Tax Compliance Addendum TA.1 Maintenance of Members' Capital Accounts. TA.1(a) Notwithstanding anything to the contrary set forth in the Agreement, the Members acknowledge and agree their desire to establish and maintain Capital Accounts in accordance with Section 1.704-1(b) of the Regulations and in compliance therewith agree that the following adjustments shall apply to the establishment or maintenance of their capital accounts: TA.1(a)(i) There shall be credited to each Member's Capital Account the amount of any cash (which shall not include imputed or actual interest on any deferred contributions) actually contributed by such Member to the capital of the Company, the Fair Market Value of any property contributed by such Member to the capital of the Company (net of any liabilities secured by such property that the Company is considered to assume or take subject to under Section 752 of the Code), such Member's share of the Net Profits of the Company and of any items in the nature of income or gain separately allocated to the Members and such Member's share of any adjustments pursuant to Section 48(q)(2) of the Code; and there shall be charged against each Member's Capital Account the amount of all cash distributions to such Member, the Fair Market Value of any property distributed to such Member by the Company (net of any liability secured by such property that the Member is considered to assume or take subject to under Section 752 of the Code), such Member's share of the Net Losses of the Company and of any items in the nature of losses or deductions separately allocated to the Members and such Member's share of any adjustments pursuant to Section 48(q)(1) of the Code. TA.1(a)(ii) If the Company at any time distributes any of its assets in-kind to any Member, the Capital Account of each Member shall be adjusted to account for that Member's allocable share (as determined under Section TA.2 below) of the Net Profits or Net Losses that would have been realized by the Company had it sold the assets that were distributed at their respective fair market values immediately prior to their distribution. TA.1(a)(iii) In the event that the Company makes an election under Section 754 of the Code, the amounts of any adjustments to the bases (or Carrying Values) of the assets of the Company made pursuant to Section 743 of the Code shall not be reflected in the Capital Accounts of the Members, but the amounts of any adjustments to the bases (or Carrying Values) of the assets of the Company made pursuant to Section 734 of the Code as a result of the distribution of property by the Company to a Member (to the extent that such adjustments have not previously been reflected in the Members' Capital Accounts) shall be reflected in the Capital Accounts of the Members in the manner prescribed in Regulations under Section 704(b) of the Code. TA.1(a)(iv) If elected by the Company, upon the occurrence of any of the following events, the Capital Account balance of each Member shall be adjusted to reflect the Member's allocable share (as determined under Section TA.2) of the Net Profits or Net Losses that would be realized by the Company if it sold all of its property at its fair market value on the day of the adjustment: TA.1(a)(iv)(A) any increase in any new or existing Membership Interest in the Company resulting from the contribution of cash or property by such Member to the Company; TA.1(a)(iv)(B) any reduction in a Membership Interest in the Company resulting from a distribution to such Member in redemption of all or a portion of such Membership Interest in the Company; and TA.1(a)(iv)(C) whenever else allowed under applicable Regulations. TA.1(a)(v) In the event any interest in the Company 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. TA.1(a)(vi) To the extent that the Company makes any payment that is treated as a syndication expense or organization expense under Section 709 of the Code and is not amortized (a "Syndication Cost"), such payment shall be charged, at that time, against the Members' Capital Accounts. If at any time thereafter, the Company takes a deduction for federal income tax purposes which is attributable to such payment (or a portion thereof), such deduction shall be allocated solely to the Members, but no adjustment of the Capital Accounts of the Members as a group shall be made upon the deduction of such Syndication Cost. TA.1(b) The Members acknowledge and agree that the provisions of Section TA.1(a) above relating to the establishment and maintenance of Capital Accounts are intended by the Members to describe and comply with the requirements of applicable Regulations and are not intended to modify or create independent rights among the parties except to the extent required to comply with applicable Regulations that must be complied with in order for the allocations of Net Profit and Net Loss provided in this Agreement to have "economic effect" under applicable Regulations. TA.2 Allocations of Net Profits, Net Losses and Credits. Except as expressly otherwise provided in this Agreement, the Company's Net Profits or Net Losses and tax credits for a calendar year shall be allocated among the Members for the calendar year as follows. TA.2(a) Credits. All tax credits (and credit recapture, if any) shall be allocated in the manner specified by the Code and the Regulations. TA.2(b) Net Profits and Net Losses. TA.2(b)(i) Net Profits. After making the special allocations required by Sections TA.2(c) and TA.2(e)-(j), and except as provided in Section TA.2(d), the Net Profits and Net Losses for each calendar year shall be allocated to the Members pro rata, in proportion to their respective Membership Interest or as otherwise required by the Code. TA.2(b)(ii) Net Losses. After making the special allocations required by Sections TA.2(c) and TA.2(e)-(j) and except as otherwise provided in Section TA.2(d), the Net Losses of the Company for any calendar year shall be allocated to the Members pro rata, in proportion to their respective Membership Interest or as otherwise required by the Code. TA.2(c) Contributed Property. Income, gain, loss, deduction with respect to property contributed to the Company by a Member or property the Carrying Value of which is adjusted in accordance with the terms of this Agreement shall be allocated among the Members in accordance with Section 704(c) of the Code. This allocation is for tax purposes only and shall not affect the Member's Capital Accounts. TA.2(d) Allocations Upon Dissolution. Upon the dissolution of the Company, Net Profits and Net Losses, including Net Profits from the sale shall be allocated first to the Members in such proportions and in such amounts as would result in the respective Capital Account balances of each Member being in a ratio to the Capital Accounts of the other Members proportionate to the respective Membership Interest of each of the Members. The remainder of the Net Profits shall be allocated to the Members, pro rata, in proportion to their respective Membership Interest. -2- TA.2(e) Company's Minimum Gain. Notwithstanding the provisions of Sections TA.2(a) through (d), if in any year there is a net decrease in the amount of the Company's Minimum Gain (including minimum gain attributable to Member Nonrecourse Debt) each Member with a share of the Company's Minimum Gain shall first be allocated items of Net Profits and gain for such year (and, if necessary, subsequent years) in the amounts and in the manner required by Section 1.704-2(f) of the Regulations. TA.2(f) Notwithstanding the provisions of Sections TA.2(a) through (d), if, during any year a Member (i) is allocated pursuant to Section 706(d) of the Code or Section 1.751-1(b)-(2)(ii) of the Regulations any Net Losses, deductions or any expenditures described in Section 705(a)(2)(B) of the Code, (ii) is distributed any cash or property from the Company to the extent such distributions exceed offsetting increases to such Member's Capital Account that are reasonably expected to occur during such year, or (iii) receives any other adjustment, allocation or distribution described in Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Regulations, and, as a result of such adjustment, allocation or distribution, such Member has an Excess Negative Balance in his Capital Account, then items of Net Profits and gain for such year (and, if necessary, subsequent years) shall first be allocated to such Member in an amount equal to its Excess Negative Balance. TA.2(g) Notwithstanding the provisions of Sections TA.2(a) through (d), in no event shall Net Losses of the Company be allocated to a Member if such allocation would result in such Member having an Excess Negative Balance in its Capital Account. TA.2(h) Notwithstanding the provisions of Sections TA.2(a) through (d), in the event that Net Profits, Net Losses or items thereof are allocated to one or more Members pursuant to subsections (f) and (g) above, subsequent Net Profits and Losses will first be allocated (subject to the provisions of subsections (f) and (g)) to the Members in a manner designed to result in each Member having a Capital Account balance equal to what it would have been had the original allocation of Net Profits, Net Losses or items thereof pursuant to subsections (f) and (g) not occurred. TA.2(i) Notwithstanding any other provision of this Section TA.2, the amount of the Net Profits, Net Losses, credits, or other items thereof that will be allocated to a Member shall not be less than a one percent (1%) of the amount of such items in each calendar year. TA.2(j) The respective interests of the Members in the Net Profits and Net Losses or items thereof shall remain as set forth above unless changed by amendment to this Agreement or by an assignment of an interest in the Company authorized by the terms of this Agreement. Except as otherwise provided herein, for tax purposes, all items of income, gain, loss, deduction or credit shall be allocated to the Members in the same manner as are Net Profits and Net Losses; provided, however, that if the Carrying Value of any property of the Company differs from its adjusted basis for tax purposes, then items of income, gain, loss, deduction or credit related to such property for tax purposes shall be allocated among the Members so as to take account of the variation between the adjusted basis of the property for tax purposes and its Carrying Value in the manner provided for under Section 704(c) of the Code. -3- Exhibit 3.68 EXHIBIT C TO THE OPERATING AGREEMENT OF [NAME OF ENTITY] Initial Officers President: Vice President: Secretary/Treasurer: EX-3.69 71 ex3-69.txt EXHIBIT 3.69 Exhibit 3.69 LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF [NAME OF ENTITY] a California Limited Liability Company This Limited Liability Company Operating Agreement (the "Agreement") is entered into effective as of _______________, by __________________________, a ______________________________________________, the Sole Member (the "Sole Member") of ____________________________________________, a ___________________ (the "Company"). The Sole Member hereto agrees to form the Company pursuant to the Beverly-Killea Limited Liability Company Act (California Corporations Code Section 17000 et. seq.; the "Act") upon the following terms and conditions: ARTICLE 1 NAME AND PLACE OF BUSINESS 1.1 Name. The name of the Company is ________________________________ ________________ , or such other name or names as the Sole Member may hereafter determine. 1.2 Registered Office and Agent. The name and address of the Company's agent for service of process is ______________________________________________ ________________________________, or such other eligible person as the Sole Member hereafter may determine. 1.3 Place of Business. The Company's principal place of business is __ ___________________________________________, or such other place or places as the Sole Member hereafter may determine. 1.4 Sole Member Address. The mailing address of the Sole Member is ___ _________________________________________________. 1.5 Admission. The Sole Member is hereby deemed admitted as the sole member of the Company upon its execution and delivery of this Agreement. ARTICLE 2 PURPOSE, TERM AND OPERATIONS OF COMPANY 2.1 Purpose. The purpose of the Company shall be to transact any and all lawful business for which limited liability companies may be organized under the Act. Without limiting the generality of the foregoing, the initial purpose of the Company shall be to ______________________________________________, and to conduct other activities as may be necessary, incidental to or desirable in connection with the foregoing. 2.2 Term of Company. The term of the Company shall commence on the date the Articles of Organization for the Company are filed with the California Secretary of State in accordance with the provisions of the Act, and shall continue until dissolved and terminated pursuant to Article 6, below. 2.3 Fiscal Year. The fiscal year of the Company shall end on the fiscal year end required for U.S. federal income tax purposes. The Sole Member is authorized to make all elections for tax or other purposes as the Sole Member deems necessary or appropriate in such connection, including the establishment and implementation of transition periods. ARTICLE 3 CAPITAL CONTRIBUTIONS AND DISTRIBUTIONS 3.1 Capital Contribution by Sole Member. The Sole Member shall contribute to the capital of the Company the amount of ________________________ ______________________________. Without creating any rights in favor of any third party, the Sole Member may, from time to time, make additional contributions of cash or property to the capital of the Company, but shall have no obligation to do so. 3.2 Limited Liability. The Sole Member shall not be bound by, or be personally liable for, the expenses, liabilities or obligations of the Company, except as otherwise provided in the Act. 3.3 Distributions. The Sole Member shall be entitled to (a) receive all distributions (including, without limitation, liquidating distributions) when made by the Company at such times, and from time to time, as the Sole Member deems appropriate, and (b) enjoy all other rights, benefits and interests in the Company. ARTICLE 4 MANAGEMENT AND BOOKS AND RECORDS 4.1 Management. (a) The Sole Member agrees that the responsibility for managing the business and affairs of the Company shall be delegated to three (3) managers (who hereinafter shall be referred to individually as a "Manager" and collectively as the "Board"), and consents to the election of _________________ __________________ as Managers of the Company. (b) The Managers shall serve and continue in such office throughout the entire term of the Company unless removed earlier by written action of the Sole Member, by operation of law, by order or decree of any court of competent jurisdiction, by voluntary resignation or upon the dissolution of the Company. (c) In the event of the resignation, removal or termination of a Manager, for any reason whatsoever, the written consent of the Sole Member shall be required to designate a new Manager. 2 (d) The Board shall in each case act by a majority of Managers in office. The Board is hereby authorized to appoint one or more officers of the Company (each, an "Officer"), including, without limitation, a President, a Secretary, one or more Vice Presidents and one or more Assistant Vice Presidents and Assistant Secretaries. Each such Officer shall have delegated to him or her the authority and power to execute and deliver on behalf of the Company any and all contracts, certificates, agreements, instruments and other documents, and to take any other action which the Board deems necessary or appropriate, all as may be set forth in a written delegation of authority executed by the Board. The Officers shall serve at the pleasure of the Board, and the Board may remove any person as an Officer and/or appoint other persons as Officers as the Board deems necessary or desirable. Any person or entity dealing with the Company may conclusively presume that an Officer specified in such a written delegation of authority who executes a contract, certificate, agreement, instrument or other document on behalf of the Company has the full power and authority to do so, and each such document shall, for all purposes, be duly authorized, executed and delivered by the Company upon execution by such Officer. By execution hereof, the Sole Member hereby appoints as the initial Officers the following persons, who shall hold the offices set forth opposite their respective names: __________________ President __________________ Vice President __________________ Secretary/Treasurer. 4.2 Books and Records. At all times during the term of existence of the Company, and beyond such term if the Sole Member deems it necessary, the Sole Member shall keep or cause the Company to keep the books and records required by the Act. 4.3 Specific Powers of Sole Member. Without limiting any other rights, powers or authority which the Sole Member may have under this Agreement or by law, the Sole Member, acting on behalf of the Company, shall have and hereby is vested with all rights, powers and authority which an individual owner would have, including, without limitation, the right, power and authority to: (a) Purchase, own, sell, improve and operate real and/or personal property of the Company, or an undivided interest therein, and execute, in connection therewith, any purchase and/or sale agreements, escrow instructions, leases, construction contracts or other related documents; (b) Finance or refinance such property, or the Company's interest therein, and execute, in connection therewith, any promissory notes, deeds of trust or other related documents as may be required by any lender or title insurance company; (c) Execute and deliver any and all documents which may be necessary or desirable to carry on the business of the Company, including, but not limited to, deeds, assignments, bills of sale, land use applications, license/permit applications, bonds and contracts; (d) Take any and all other actions it deems necessary, desirable or convenient for the furtherance of the objects and purposes of the Company; and 3 (e) Exercise all other powers and rights conferred upon a limited liability company formed pursuant to the Act. ARTICLE 5 TAX MATTERS; ALLOCATION OF PROFITS, LOSSES AND DISTRIBUTIONS 5.1 Income Tax Purposes. The Sole Member hereby states its intention that the Company shall be treated as a disregarded entity for purposes of federal, state and local income tax laws, and further agrees that it will not take any position or make any election, in a tax return or otherwise, inconsistent herewith. In furtherance of the foregoing, to the extent permitted by law and if deemed advisable by the Sole Member, the Company will file its results of operations as part of the Sole Member's income tax returns for each year. 5.2 Allocation of Profits and Losses. All Company profits and losses shall be allocated to the Sole Member. 5.3 Allocation of Distributions. All Company distributions of cash or other assets shall be made to the Sole Member, at such times as the Sole Member shall determine. ARTICLE 6 DISSOLUTION The Company shall dissolve and its affairs shall be wound up at such time, if any, (i) as the Sole Member may elect, or (ii) upon the entry of judicial dissolution pursuant to Section 17351 of the Act. ARTICLE 7 INDEMNIFICATION AND LIABILITY 7.1 Right to Indemnification. Subject to the limitations and conditions provided in this Article 7, if the Sole Member is made a party or anticipates being made a party to, or otherwise is involved in, any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative or investigative (hereinafter a "Proceeding"), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding, by reason of the fact that such person is or was the Sole Member of the Company, the Sole Member shall be indemnified by the Company to the fullest extent permitted by the Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than the Act permitted the Company to provide prior to such amendment) against judgments, penalties (including excise and similar taxes and punitive damages), fines, settlements and reasonable expenses (including attorneys' fees) actually incurred by the Sole Member in connection with such Proceeding. Indemnification pursuant to this Article 7 shall continue after the Sole Member has ceased to be the sole member of the Company. The rights granted pursuant to this Article 7 shall be deemed contract rights, and no amendment, modification or repeal of this Article 7 shall have the effect of limiting or denying any such rights with respect to actions taken or Proceedings arising prior to any such amendment, modification or repeal. It is expressly acknowledged that the indemnification provided in this Article 7 may involve indemnification for negligence or under theories of strict liability. 4 7.2 Advance Payment. The right to indemnification conferred in this Article 7 shall include the right to be paid or reimbursed by the Company for the reasonable expenses incurred by the Sole Member if the Sole Member was, is or is threatened to be made a named defendant or respondent in a Proceeding, in advance of the final disposition of the Proceeding and without any determination as to the Sole Member's ultimate entitlement to indemnification; provided, however, that the payment of such expenses incurred by the Sole Member in advance of the final disposition of a Proceeding shall be made only upon delivery to the Company of a written affirmation by the Sole Member of its good faith belief that it has met the standard of conduct necessary for indemnification under this Article 7 and a written undertaking, by or on behalf of the Sole Member, to repay all amounts so advanced if it ultimately shall be determined that the Sole Member is not entitled to be indemnified under this Article 7 or otherwise. 7.3 Nonexclusivity of Rights. The right to indemnification and the advancement and payment of expenses conferred in this Article 7 shall not be exclusive of any other right which the Sole Member may have or hereafter may acquire under any law, any provision of the Articles of Organization of the Company or this Agreement, any other agreement, any vote of the Sole Member or otherwise. 7.4 Insurance. The Company may purchase and maintain insurance, at its expense, to protect itself and the Sole Member against any expense, liability or loss, whether or not the Company would have the power to provide indemnification against such expense, liability or loss under this Article 7. 7.5 Limited Liability. Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and neither the Sole Member nor any officer, manager, affiliate, director, partner or controlling person of the Sole Member shall be obligated personally for any such debt, obligation or liability of the Company. 7.6 Savings Clause. If this Article 7 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company nevertheless shall indemnify and hold harmless the Sole Member as to costs, charges and expenses (including attorneys' fees), judgments, fines and amounts paid in settlement with respect to any Proceeding, to the full extent permitted by any applicable portion of this Article 7 that shall not have been invalidated and to the fullest extent permitted by law. ARTICLE 8 AMENDMENT Any amendment or supplement to this Agreement shall be effective only if in writing and if the same shall be consented to and approved by the Sole Member. 5 ARTICLE 9 GOVERNING LAW This Agreement is governed by and shall be construed in accordance with the laws of the State of California (excluding its conflict-of-laws rules). IN WITNESS WHEREOF, the Sole Member of the Company has executed and delivered this Agreement to be effective as of the date set forth in the opening paragraph hereof. ____________________________ a ____________________________________ By: ______________________________________ a _______________ corporation, Its General Partner By: _______________________________________ Name: Title: 6 EX-3.76 72 ex3-76.txt EXHIBIT 3.76 Exhibit 3.76 Secretary of State [State Seal] Capitol West Wing Phoenix, AZ 85007 CERTIFICATE OF LIMITED PARTNERSHIP ---------------------------------- Limited Partnership Division (A.R.S. ss. 29-308) Fee: $10.00 plus $3.00 per page Submit 1 original plus 1 copy Return original copy to: (See instructions on back page)
1. Edmunds-Toll Limited Partnership --------------------------------------------------------------------------------------------------------- Name of Limited Partnership 2. Acquisition, ownership and investment in real property --------------------------------------------------------------------------------------------------------- General Character of Business 3. 3103 Philmont Avenue Huntingdon Valley PA 19006 --------------------------------------------------------------------------------------------------------- Address of Office City State Zip 4. C T Corporation System, 3225 N. Central Ave., Phoenix, Arizona 85012 (602) 277-4792 --------------------------------------------------------------------------------------------------------- Agent for service of process (A.R.S. ss. 29-304) Address Phone 5. Is the name of your limited partnership registered with the Arizona Corporation Commission? No. -------------- 6. Name and business address of all general partners. (Please print or type). Toll AZ GP Corp. 3103 Philmont Avenue Huntingdon Valley, PA 19006 --------------------------------------------------------------------------------------------------------- Name Street City State Zip --------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------- 7. Name and business address of all limited partners (Please print or type). Toll Bros., Inc. 3103 Philmont Ave. Huntingdon Valley PA 19006 --------------------------------------------------------------------------------------------------------- Name Street City State Zip --------------------------------------------------------------------------------------------------------- --------------------------------------------------------------------------------------------------------- 8. Date of formation upon filing with the Secretary of State --------------------------------------------------------------------------------------- 9. Amount of cash/description/statement of agreed value of other property or services contributed by each partner and which each partner has agreed to contribute in the future: Capital Contribution of General Partner is $500.00 --------------------------------------------------------------------------------------------------------- Capital Contribution of Limited Partner is $9,500.00 --------------------------------------------------------------------------------------------------------- ---------------------------------------------------------------------------------------------------------
Page 2 - CERTIFICATE OF LIMITED PARTNERSHIP
10. The times at which or events on the happening of which any additional contributions agreed to be made by each partner are to be made:____________________________________________________________________ Additional contribution to made upon agreement of all partners. -------------------------------------------------------------------------------------------------------- -------------------------------------------------------------------------------------------------------- 11. Any power of a limited partner to grant the right to become a limited partner to an assignee of any part of his partnership interest, and the terms and conditions of the power: A Limited's interest may be assigned in whole or in part at any time, and an assignee of a Limited -------------------------------------------------------------------------------------------------------- Partner may become a Limited Partner, without the prior written consent of the General Partner. -------------------------------------------------------------------------------------------------------- 12. If agreed upon the time at which or the events on the happening of which a partner may terminate his membership in the limited partnership and the amount of, or the method of determining, the distribution to which he may be entitled respecting his partnership interest, and the terms and conditions of the termination and distribution. No right to terminate membership prior to dissolution of the Partnership. -------------------------------------------------------------------------------------------------------- -------------------------------------------------------------------------------------------------------- 13. Any right of a partner to receive distribution of property, including cash from the limited partnership. No. -------------------------------------------------------------------------------------------------------- -------------------------------------------------------------------------------------------------------- 14. Any right of a partner to receive, or of a general partner to make, distributions to a partner which include a return of all or any part of the partner's contributions Yes. Operating cash flow and liquidations to be made in accordance with relative capital contributions. -------------------------------------------------------------------------------------------------------- Distributions may include return of contributions, in discretion of the General Partner. -------------------------------------------------------------------------------------------------------- 15. Any time at which or events upon the happening of which the limited partnership is to be dissolved and its affairs wound up: Upon the earliest of (1) bankruptcy or withdrawal of last remaining General Partner, (2) agreement of -------------------------------------------------------------------------------------------------------- all partners to dissolve Partnership, (3) sale of substantially all assets, (4) October 31, 2015. -------------------------------------------------------------------------------------------------------- 16. Any right of the remaining general partners to continue the business on the happening of an event of withdrawal of a general partner; any other matters the partners determine to include therein. Remaining General Partners, if any, may continue the business upon withdrawal of a General Partner. --------------------------------------------------------------------------------------------------------
Page 3 - CERTIFICATION OF LIMITED PARTNERSHIP We hereby declare that we are the persons who executed the Certificate of Limited Partnership, which execution by signature below is our act and deed.
TOLL AZ GP CORP., General Partner TOLL BROS., INC., or its Designee, Limited Partner By: Kenneth J. Gary By: Kenneth J. Gary ------------------------------------------------ --------------- Partner (signature) Partner (printed) Kenneth J. Gary, Vice President Kenneth J. Gary, Vice President - ----------------------------------------------------- ----------------------------------------------------- - ----------------------------------------------------- ----------------------------------------------------- - ----------------------------------------------------- -----------------------------------------------------
State of (Pennsylvania) ---------------- ) ss. County of (Montgomery) ---------------- Subscribed and sworn to before me this 27th day of July, 1995. ---- ---- Elizabeth K. Beavers -------------------- Notary Public My Commission Expires: [Notary Seal] ------------- See Reverse side for instructions in completing. C T CORPORATION SYSTEM HAVING BEEN DESIGNATED TO ACT AS STATUTORY AGENT, HEREBY CONSENTS TO ACT IN THAT CAPACITY UNTIL IT IS REMOVED, OR SUBMITS ITS RESIGNATION. By: Cindy L. Parrinello ------------------- (Officer) CINDY L. PARRINELLO, SPECIAL ASST. SECY. - ---------------------------------------- (Type Name and Title of Officer) EX-3.77 73 ex3-77.txt EXHIBIT 3.77 Exhibit 3.77 ARTICLES OF INCORPORATION OF TOLL YL, INC. ONE: The name of this corporation is TOLL YL, INC. TWO: The purpose of the corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business, or the practice of a profession permitted to be incorporated by the California the California Corporations Code, this corporation's business shall be restricted solely to acting as the general partner of Shell-Toll YL, L.P., a California limited partnership and this corporation shall have no other authorized business. Any amendment of these Articles to permit the corporation to engage in other business shall require the affirmative vote and written consent of all holders of the outstanding Class A Voting Common Shares and the affirmative vote and written consent of all holders of the outstanding Class B Non-Voting Common Shares. THREE: The name and address in this state of the corporation's initial agent for service of process is James W. Boyd, Toll Brothers, Inc., 2100 Orangewood Avenue, Ste. 180, Orange, CA 92668. FOUR: This corporation is authorized to issue only two (2) classes of shares, which shall be designated, respectively, "Class A Voting Common" and "Class B Non-Voting Common." The number of shares authorized as Class A Voting Shares is One Thousand (1,000) and the number of shares authorized as Class B Non-Voting Shares is One Thousand (1,000). FIVE: Pursuant to Section 204(a)(9) of the California Corporation Code, the affirmative vote and written consent of all holders of the outstanding Class A Voting Common Shares and the affirmative vote and written consent of all holders of the outstanding Class B Non-Voting Common Shares shall be required in order for the corporation to file a voluntary petition in bankruptcy under either federal or state law for itself or for Shell-Toll YL, L.P. SIX: The liability of the directors of the corporation for monetary damages shall be eliminated to the fullest extent permissible under California law. SEVEN: The corporation is authorized to provide indemnification of agents (as defined in section 317 of the Corporation Code, or any successor statute thereto) for breach of duty to the corporation and its stockholders through bylaw provisions, through agreements with the agents, by vote of shareholders or disinterested directors, or otherwise, in excess of the indemnification expressly permitted by section 317 of the Corporation Code, or any successor statute thereto, subject to the limits on such excess indemnification set forth in section 204 of the Corporations Code, or any successor statute thereto. IN WITNESS WHEREOF, the undersigned has executed these articles this 24th day of April, 1997. Warren S. Inouye ----------------------------------- Warren S. Inouye, Sole Incorporator -2- EX-3.78 74 ex3-78.txt EXHIBIT 3.78 Exhibit 3.78 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF FIRST BRANDYWINE FINANCE CORP. FIRST: The name of the corporation is First Brandywine Finance Corp. (the "Corporation"). SECOND: The registered office of the Corporation is located at 1105 North Market Street, Suite 1300, Wilmington, County of New Castle, Delaware 19801. The registered agent of the Corporation at that address is Delaware Corporate Management, Inc. THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware; provided that the Corporation's activities shall be confined to the maintenance and management of its intangible investments and the collection and distribution of the income from such investments of from tangible property physically located outside Delaware, all as defined in, and in such manner to qualify for exemption from income taxation under, Section 1902(b)(8) of Title 30 of the Delaware Code, or under the corresponding provision of any subsequent law. FOURTH: The Corporation shall have authority to issue one thousand (1,000) shares of common stock, having a par value of one dollar ($1.00) per share. FIFTH: The Corporation shall indemnify Directors and officers of the Corporation to the fullest extent permitted by law. SIXTH: The Directors of the Corporation shall incur no personal liability to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a Director; provided, however, that the Directors of the Corporation shall continue to be subject to liability (i) for any breach of their duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) for acts or omissions arising under Section 174 of the General Corporation Law of the State of Delaware; (iv) for any transaction from which the Directors derived an improper personal benefit. In discharging the duties of their respective positions, the Board of Directors, committees of the Board, individual Directors and individual officers may, in considering the best interest of the Corporation, consider the effects of any action upon employees, suppliers and customers of the Corporation, communities in which officers or other establishments of the Corporation are located, and all other pertinent factors. In addition, the personal liability of the Directors shall further be limited or eliminated to the fullest extent permitted by any future amendments to Delaware law. SEVENTH: The business and affairs of the Corporation shall be managed by or under the direction of the Board of Directors, the number of members of which shall be set forth in the bylaws of the Corporation. The Directors need not be elected by ballot unless required by the bylaws of the Corporation. EIGHTH: Meeting of the stockholders will be held at such place within Delaware, on such date and at such time as may be called by the Board of Directors. The Chairman or the President, or as otherwise provided by law. The books of the Corporation will be kept in the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the bylaws of the Corporation. NINTH: In the furtherance and not in limitation of the objects, purposes and powers prescribed herein and conferred by the laws of the State of Delaware, the Board of Directors is expressly authorized to make, amend and repeal the bylaws. TENTH: The Corporation reserves the right to amend or repeal any provision contained in this Certificate of Incorporation in the manner now or hereinafter prescribed by the laws of the State of Delaware. All rights herein conferred are granted subject to this reservation. ELEVENTH: The Corporation shall have no power and may not be authorized by its stockholders or Directors (i) to perform or omit to do any act that would prevent or inhibit the Corporation form qualifying or cause the Corporation to lose its status, as a corporation exempt from the Delaware Corporation Income Tax under Section 1902(b)(8) of Title 30 of the Delaware Code, or under the corresponding provision of any subsequent law; or (ii) to conduct any activities in any state other than Delaware which could result in the Corporation being subject to the taxing jurisdiction of any state other than Delaware. First Brandywine Finance Corp. has caused this Amended and Restated Certificate of Incorporation to be duly executed in its corporate name under the seal of the Corporation as of this 24th day of July, 1996, to be effective upon filing with the Delaware Secretary of State. FIRST BRANDYWINE FINANCE CORP. By: Gordon W. Stewart --------------------------- Gordon W. Stewart Secretary [SEAL] -2- EX-3.79 75 ex3-79.txt EXHIBIT 3.79 Exhibit 3.79 AGREEMENT OF LIMITED PARTNERSHIP OF FIRST BRANDYWINE PARTNERS L.P. This Agreement of Limited Partnership of First Brandywine Partners L.P., a Delaware limited partnership (this "Agreement"), is entered into by and among First Brandywine Management Del. Corp., a Delaware corporation, as general partner (the "General Partner"), and First Brandywine Investment Corp. II, a Delaware corporation, as limited partner (the "Limited Partner"). The General Partner and the Limited Partner are referred to collectively as the "Partners", and the terms "General Partner" and "Limited Partner" shall refer also to additional general partners and limited partners, respectively, as may become parties to this Agreement. The General Partner and the Limited Partner hereby form a limited partnership pursuant to and in accordance with the Delaware Revised Uniform Limited Partnership Act, as amended from time to time (the "Act"), and hereby agree as follows: 1. Name. The name of the limited partnership formed hereby is First Brandywine Partners L.P. (the "Partnership"). 2. Purpose. The Partnership is formed for the object and purpose of engaging in any lawful act or activity for which limited partnerships may be formed under the laws of Delaware. 3. Registered Office. The registered office of the Partnership in the State of Delaware is 1201 Market Street, Suite 1700, Wilmington, County of New Castle, Delaware 19801. 4. Registered Agent. The registered agent of the Partnership at the address of the registered office is Delaware Incorporators & Registration Service, Inc. 5. Partners. The names and mailing addresses of the General Partner and the Limited Partner are as follows: General Partner First Brandywine Management Del. Corp. 1105 North Market Street Suite 1250 Wilmington, Delaware 19801 Limited Partner First Brandywine Investment Corp. II 1105 North Market Street Suite 1250 Wilmington, Delaware 19801 6. Powers. The powers of the General Partner include all powers, statutory and otherwise, possessed by general partners under the laws of the State of Delaware. 7. Dissolution. The Partnership shall dissolve, and its affairs shall be wound up, at such time as (a) all of the partners of the Partnership approve in writing, (b) an event of withdrawal of a general partner has occurred under the Act, or (c) an entry of a decree of judicial dissolution has occurred under Section 17-802 of the Act; provided, however, the Partnership shall not be dissolved or required to be wound up upon an event of withdrawal of a general partner described in Section 7(b) hereof if (i) at the time of such event of withdrawal, there is at least one other general partner of the Partnership who carries on the business of the Partnership (any remaining general partner being hereby authorized to carry on the business of the Partnership), or (ii) within ninety days after the occurrence of such event of withdrawal, all remaining partners agree in writing to continue the business of the Partnership and to the appointment, effective as of the event of withdrawal, of one or more additional general partners of the Partnership. 2 8. Capital Contributions. On or before October 31, 1998, the Partners of the Partnership shall contribute cash and property to the Partnership in the amounts and of the type set forth across from each such partner's name below: Cash/Property ------------- General Partner: First Brandywine Management Del. Corp. $5.00 Limited Partner: First Brandywine Investment Corp. II $95.00 9. Additional Contributions. No partner of the Partnership is required to make any additional capital contribution to the Partnership. 10. Allocation of Profits and Losses and Distributions. The Partnership's profits and losses shall be allocated and all distributions made to the Partners of the Partnership based upon the percentage set forth across from each partner's name below: General Partner: First Brandywine Management Del. Corp. 5 percent Limited Partner: First Brandywine Investment Corp. II 95 percent The Limited Partnership may issue certificates evidencing each Partner's ownership interest in the Limited Partnership. The total capital of the limited partnership shall be represented by 100 limited partnership units ("Units"). The Units represented on such certificates shall be proportionate to the relative percentages of profits and losses borne by the respective Partners. 3 11. Assignments. (a) The Limited Partner may assign all or any part of its interest in the Partnership and may withdraw from the Partnership only with the consent of the General Partner. (b) The General Partner may assign all or part of its partnership interest in the Partnership and may withdraw from the Partnership without the consent of the Limited Partner; provided that the General Partner shall give 30 days notice to the Partnership of such withdrawal. 12. Withdrawal. Except to the extent set forth in Section 11, no right is given to any partner of the Partnership to withdraw from the Partnership. 13. Admission of Additional or Substitute Members. (a) One or more additional or substitute limited partners of the Partnership may be admitted to the Partnership only with the consent of the General Partner. (b) One or more additional or substitute general partners of the Partnership may be admitted to the Partnership only with the consent of the General Partner or, in the event of more than one general partner, only with the consent of a majority of the general partners. 14. Status of Limited Partner. (a) The Limited Partner shall not participate in the management or control of the Partnership's business, nor shall it transact any business for the Partnership, nor shall it have the power to act for or bind the Partnership, such powers being vested solely and exclusively in the General Partner. 4 (b) No Limited Partner shall have any personal liability whatever, whether to the Partnership, to any of the Partners or to the creditors of the Partnership, for the debts of the Partnership or any of its losses except to the extent provided in the Act. 15. Authority of General Partner. (a) The General Partner shall have exclusive authority to manage and control the business and affairs of the Partnership. Pursuant to the foregoing, the General Partner shall have all of the rights and powers of a general partner as provided in the Act and as otherwise provided by law, and any action taken by the General Partner shall constitute the act of and serve to bind the Partnership. In dealing with the General Partner acting on behalf of the Partnership, no person shall be required to inquire into the authority of such Partner to bind the Partnership. (b) The General Partner shall devote such time to the Partnership business as it, in its sole discretion, shall deem to be necessary to manage and supervise the Partnership business and affairs; but nothing in this Agreement shall preclude the employment, at the expense of the Partnership, of any agent or third party to manage or provide other services in respect of the Partnership property subject to the control of the General Partner. (c) Neither the General Partner nor any officer, director or employee of the General Partner shall be liable, responsible, or accountable in damages or otherwise to the Partnership or any Partner for any act or failure to act on behalf of the Partnership within the scope of the authority conferred on the General Partner by this Agreement or by law unless such act or omission was performed or omitted fraudulently or in bad faith or constituted wanton and willful misconduct or gross negligence. 5 (d) The Partnership shall indemnify and hold harmless the General Partner, each officer, director and employee of the General Partner, and the agents of each of them (each an "Indemnified Party"), from and against any loss, expense, damage or injury suffered or sustained by such person by reason of any act or omission arising out of his activities on behalf of the Partnership or in furtherance of the interests of the Partnership, including, but not limited to, any judgment, award, settlement, reasonable attorney's fees, and other costs or expenses incurred in connection with the defense of any actual or threatened action, proceeding, or claim and including any payments made by the General Partner to any of its officers, directors or employees pursuant to an indemnification agreement no broader than this section; provided that the act, omission, or alleged act or omission upon which such actual or threatened action, proceeding or claim is based was not performed or omitted fraudulently or in bad faith or as a result of wanton and willful misconduct or gross negligence by such Indemnified Party. 16. Power of Attorney. (a) The Partners, jointly and severally, hereby irrevocably constitute and appoint the General Partner, with full power of substitution, their true and lawful attorney-in-fact in their name, place and stead to make, execute, sign and acknowledge, record and file, on behalf of them and on behalf of the Partnership, the following: (i) a Certificate of Limited Partnership and any other certificates or instruments which may be required to be filed by the Partnership or the Partners under the laws of the State of Delaware and any other jurisdiction whose laws may be applicable; and 6 (ii) any and all such other instruments as may be deemed necessary or desirable by the General Partner to carry out fully the provisions of this Agreement in accordance with its terms. 17. Books of Account, Records and Reports. (a) Proper and complete records and books of account shall be kept by the General Partner in which shall be entered all matters relative to the Partnership's business as are usually entered into records and books of account maintained by persons engaged in businesses of a like character. The Partnership books and records shall be kept on the accrual basis in accordance with generally accepted accounting principles, consistently applied. The books and records shall be open to the reasonable inspection and examination of the Partners or their duly authorized representatives during reasonable business hours. (b) No later than 120 days after the end of each fiscal year of the Partnership, which shall be designated by the General Partner, the General Partner shall furnish to the Limited Partner a report of the business and operations of the Partnership during such year, which report shall constitute the accounting of the General Partner for such year. Such report shall contain a copy of the annual financial statement of the Partnership showing the Partnership's profit or loss for the year and the allocation thereof among the holders of the limited partnership units. The statement shall have been audited by the Partnership's independent public accountants and shall otherwise be in such form and have such content as the General Partner deems proper. 18. Miscellaneous. If any provision of this Agreement, or the application of such provision to any person or circumstance, shall be held invalid, the remainder of this Agreement, or the application of such provision to persons or circumstances other than those to which it is held invalid, shall not be affected thereby. 7 19. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware, all rights and remedies being governed by said laws. THE UNDERSIGNED, intending to be legally bound hereby, have duly executed this Agreement of Limited Partnership as of the 31st day of October, 1998. GENERAL PARTNER: First Brandywine Management Del. Corp., a Delaware corporation BY: _______________________________ Gordon W. Stewart Secretary LIMITED PARTNER: First Brandywine Investment Corp. II, a Delaware corporation BY: _______________________________ Gordon W. Stewart Secretary 8 EX-3.80 76 ex3-80.txt EXHIBIT 3.80 Exhibit 3.80 LIMITED LIABILITY COMPANY AGREEMENT OF TOLL DE X, L.L.C. This Limited Liability Company Agreement (this "Agreement") of Toll DE X, LLC is entered into by the undersigned, as Members (the "Members"), as Manager(s) (the "Manager(s)"), by and on behalf of the Company, and is effective as of March 26, 2002. The Authorized Representative, Thomas C. Martin, formed a limited liability company by filing the certificate of formation of TOLL DE X, LLC (the "Certificate of Formation") on March 26, 2002 pursuant to, and in accordance with, the Delaware Limited Liability Company Act (18101, et seq.), as amended from time to time (the "Act"). The Members now wish to memorialize the agreement with respect to the affairs and conduct of business of Toll DE X, LLC as follows: 1. Name. The name of the limited liability company governed hereby is Toll DE X, LLC (the "Company"). 2. Certificates. Thomas C. Martin, the Authorized Representative within the meaning of the Act, has executed, delivered and filed the Certificate of Formation of the Company with the Secretary of the State of Delaware (a copy of which is attached hereto as Exhibit A), as contemplated by ss.18-201 of the Act. The Secretary of the Company shall execute, deliver and file any other certificates (and any amendments and/or restatements thereof) necessary for the Company to qualify to do business in a jurisdiction in which the Company may wish to conduct business and necessary as a result of the Company conducting such business. 3. Purpose. The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary, convenient, desirable or incidental to the foregoing including, but not limited to, the maintenance, management, investment and/or disposition, including sale or exchange, of property held by the Company. 4. Powers. (a) In furtherance of its purposes, but subject to all of the provisions of this Agreement, the Company shall have the power and is hereby authorized to take any and all actions necessary, appropriate, proper, advisable, incidental or convenient to and for the furtherance of the purposes set forth in Section 3, including, but not limited to, the power to: (i) conduct the business, carry on its operations and have and exercise the powers granted to a limited liability company by the Act in any state, territory, district or possession of the United States, or in any foreign country that may be necessary, convenient or incidental to the accomplishment of the purpose of the Company; (ii) acquire by purchase, lease, contribution of property or otherwise, own, hold, sell, convey, transfer or dispose of any real or personal property which may be necessary, convenient or incidental to the accomplishment of the purpose of the Company; the Company necessary to, in connection with, convenient to, or incidental to the accomplishment of any purpose of the Company; (iii) act as a trustee, executor, nominee, bailee, director, officer, agent or in some other fiduciary capacity for any person or entity and to exercise all of the powers, duties, rights and responsibilities associated therewith; (iv) take any and all actions necessary, convenient or appropriate as trustee, executor, nominee, bailee, director, officer, agent or other fiduciary, including the granting or approval of waivers, consents or amendments of rights or powers relating thereto and the execution of appropriate documents to evidence such waivers, consents or amendments; -2- (v) purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge or otherwise dispose of, and otherwise use and deal in and with, shares or other interests in or obligations of domestic or foreign corporations, associations, general or limited partnerships (including, without limitation, the power to be admitted as a partner thereof and to exercise the rights and perform the duties created thereby), trusts, limited liability companies (including, without limitation, the power to be admitted as a member or appointed as a manager thereof and to exercise the rights and perform the duties thereof), or direct or indirect obligations of the United States or of any government, state, territory, governmental district or municipality or of any instrumentality of any of them; (vi) purchase, maintain, finance, improve, own, sell, convey, assign, mortgage, lease or demolish or otherwise dispose of any real or personal property which may be necessary, convenient or incidental to the accomplishment of the purposes of the Company; (vii) borrow money and issue evidences of indebtedness in furtherance of any or all of the purposes of the Company, and if necessary, secure the same by mortgage, pledge or other lien on the assets of the Company; (viii) prepay in whole or in part, refinance, recast, increase, modify or extend any indebtedness of the Company and, in connection therewith, execute any extensions, renewals or modifications of any mortgage or security agreement securing such indebtedness; (ix) lend money, invest and reinvest its funds, and take and hold real and personal property for the payment of funds so loaned or invested; -3- (x) employ or otherwise engage employees, Manager(s), contractors, advisors, attorneys, consultants and other agents of the Company, define their respective duties, and pay reasonable compensation for their services; (xi) sue and be sued, complain and defend, and participate in administrative or other proceedings, in its name; (xii) pay, collect, compromise, litigate, arbitrate or otherwise adjust or settle any and all other claims or demands of or against the Company or hold such proceeds against the payment of contingent liabilities; (xiii) indemnify any person in accordance with the Act and obtain any and all types of insurance; (xiv) negotiate, enter into, renegotiate, extend, renew, terminate, modify, amend, waive, execute, acknowledge or take any other action with respect to any lease, contract or security agreement in respect of any assets of the Company; (xv) cease its activities and cancel its Certificate of Formation; (xvi) transact any and all business as set forth in the pre-printed resolutions accompanying and made part of the Company's banking agreements, if any; and (xvii) do such other things and engage in such other activities related to the foregoing as may be necessary, convenient or incidental to the conduct of the business of the Company, and have and exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act. (b) The Company may merge with, or consolidate into, another limited liability company or other business entity as permitted under the Act upon the approval of the Manager(s) and Members as are set forth in Section 8 below. -4- 5. Notice Address. The address of the Company for notice purposes will be 1300 N. Broom Street, Wilmington, DE, 19899, or at such other location as may hereafter be determined by the Members. 6. Registered Office. The address of the registered office of the Company in the State of Delaware is 1105 North Market Street, Suite 1300, Wilmington, DE, 19899-8985, New Castle County. 7. Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the State of Delaware is Delaware Corporate Management, Inc., 1105 North Market Street, Suite 1300, Wilmington, DE, 19899-8985, New Castle County. 8. Members; Manager(s). (a) The names of the Members are Toll NJX-I, Corp. and Toll NJX-II, Corp. The mailing addresses of the Members are as set forth under their signatures below. Until such time as the members determine who and how the Company shall be managed, the Authorized Representative shall serve as the manager (the "Manager"), of the Company and, as provided by Section 20 below, the management of the Company shall be vested solely in the Manager(s) named in this Agreement, who shall be bound by the terms of this Agreement and who shall manage the Company in accordance with Section 20 below. (b) The Members shall have the power to remove any Manager at any time and name a successor thereto by a vote of all of the Members of the Company. (c) Meetings of the Members shall be noticed in a manner as prescribed by the Members. A Member may participate in such a meeting by conference telephone. (d) One Member of the Company shall constitute a quorum for purposes of taking action at a meeting of the Members. -5- 9. Limited Liability. (a) Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and the Authorized Representative, the Manager(s) and the Members (each a "Covered Person" and, collectively, the "Covered Persons") shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being an Authorized Representative, a Manager or a Member of the Company. (b) Except as otherwise expressly required by law, each Member, in its capacity as a Member of the Company, shall have no liability in excess of (i) the amount of its capital contributions to the Company, (ii) its share of any assets and undistributed profits of the Company, (iii) its obligation to make other payments expressly provided for it this Agreement, and (iv) the amount of any distributions wrongfully distributed to it. 10. Exculpation. (a) No Covered Person shall be liable to the Company, the Members or any other person or entity who has an interest in the Company for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith in connection with the formation of the Company on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person's gross negligence or willful misconduct. (b) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any person or entity as to matters the Covered Person reasonably believes are within such other person's or entity's professional or expert competence, including information opinions, reports or statements as to the value and amount of the assets, liabilities, profits, losses or any other facts pertinent to the existence and amount of assets from which distributions to the Members might be properly paid. -6- 11. Indemnification. To the full extent permitted by applicable law, each Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section 11 shall be provided out of and to the extent of Company assets only, and the Members shall have no personal liability on account thereof. 12. Expenses. To the fullest extent permitted by applicable law, expenses (including legal fees) incurred by a Covered Person in defending any claim, demand, action suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in Section 11 hereof. 13. Insurance. The Company may purchase and maintain insurance to the extent and in such amounts as the Manager(s) shall, in their sole discretion, deem reasonable, on behalf of Covered Persons and such other persons as the Manager(s) shall determine, against any liability that may be asserted against or expenses that may be incurred by any such person in connection with the -7- activities of the Company or such indemnities, regardless of whether the Company would have the power to indemnify such person against such liability under the provisions of this Agreement. The Manager(s) and the Company may enter into indemnity contracts with Covered Persons and such other persons as the Manager(s) shall determine and adopt written procedures pursuant to which arrangements are made for the advancement of expenses and the funding of obligations under Section 12 hereof and containing such other procedures regarding indemnification as are appropriate. 14. Assignments. The Members may sell, assign, transfer, convey or otherwise dispose of all or any part of their limited liability company interests. 15. Resignation. The Members shall have the right to resign and the effect of which resignation shall be to cause the dissolution of the Company as set forth in Section 23 hereof. Upon such resignation, the resigning Member shall be liable to the Company and to the remaining Members of the Company for his ratable share of the Company's debts and obligations which such resigning Member personally guaranteed. Such resigning Member shall settle such liabilities with the Company upon resignation and before any release is given such resigning Member by the Company or the remaining Members. 16. Admission of Additional Member. One (1) or more additional Members of the Company may be admitted to the Company with the unanimous written consent of the Members. 17. Capital Contributions. (a) The undersigned, as Members, may from time to time make capital contributions to the Company. (b) The Members may make additional capital contributions for the payment of the Company's expenses at the request of the Manager(s). -8- (c) It is agreed by the Members that each Member's percentage ownership interest in the Company shall be 50% as indicated above and shall be evidenced specifically by Membership Interest Certificate No. 1 issued to Toll NJX-I, Corp. and by Membership Interest Certificate No. 2 issued to Toll NJX-II, Corp., each such Certificate substantially in the form of the Membership Interest Certificate attached hereto as Exhibit B. (d) The Members' interests in the Company shall for all purposes be personal property. 18. Allocation of Profits and Losses. Except as otherwise provided by Section 19(b), all profits and losses of the Company shall be allocated to the Members in accordance with their respective membership percentage interests. 19. Distributions. (a) Distributions of any cash, shares or other property shall be made to the Members at the times and in the aggregate amounts determined by the Members, except as provided in Section 19(b). (b) Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to any Member on account of its interest in the Company if such distribution would violate the Act or other applicable law. 20. Management. (a) In accordance with the Act, management of the Company shall be solely vested in the Manager(s), as named in this Agreement, or otherwise provided for by designation pursuant to Section 8 hereof. (b) The Manager(s) may hold meetings to conduct the business of the Company. A Manager may participate in such meetings by conference telephone. One of the Manager(s) of the Company shall constitute a quorum for purposes of taking action by and on behalf of the Company. The Manager(s) shall have the power to do any and all acts necessary, convenient or incidental to or for the furtherance of the purposes described herein, including all powers, statutory or otherwise, possessed by a member of a limited liability company under the laws of the State of Delaware. -9- (c) The Manager(s) shall serve as such until resignation, death or a judicial adjudication of incompetence, or until removed by the Members pursuant to Section 8 (b) hereof. (d) The Manager(s) may, in their sole discretion, appoint officers to run the day-today operations of the Company, subject to the supervision of the Manager(s). The officers of the Company, if deemed necessary by the Manager(s), shall include a President, a Treasurer and a Secretary and such other officers as the Manager(s) may from time to time consider appropriate. Such officers, upon appointment, shall be immediately authorized to exercise such duties as customarily pertain to such offices as determined by the Manager(s). Any officer may be removed at any time at the sole discretion of the Manager(s) and any vacancy occurring in any office of the Company shall be filled by the Manager(s). (e) The Manager(s), or their delegates, are authorized to undertake such acts at, or in advance of, or after the First Meeting of the Manager(s) as are necessary to initiate and undertake the conduct of business of the Company; provided, however, that the Manager(s) shall ratify, confirm and approve at the First Meeting of the Manager(s) of the Company or at such subsequent meeting as appropriate all such acts undertaken by, and through, the Manager(s)' delegate in advance of such meeting. 21. Other Business. The Members and any person or entity affiliated with any Member may engage in or possess an interest in other business ventures (unconnected with the Company) of every kind and description, independently or with others. The Company shall have no rights in or to such independent ventures or the income or profits there from by virtue of this Agreement. -10- 22. Reserved. 23. Taxation. (a) The Company, as a domestic eligible entity with more than one owner, shall make an election to be classified as a partnership for U.S. federal income tax purposes. Such election shall be made pursuant to Treas. Reg. Sec. 301.7701-3 on Internal Revenue Service Form 8832 properly executed and filed with the IRS. (b) The Company shall execute or otherwise cause to be executed that certain consent to subject itself to taxation in the jurisdiction of the State of New Jersey pursuant to regulations that the Director of the Division of Revenue of the State of New Jersey shall promulgate. (c) The Company may in necessary and appropriate circumstances elect to step up the basis in its assets pursuant to Section 754(a) of Internal Revenue Code of 1986 as amended. 24. Dissolution. (a) The Company shall dissolve, and its affairs shall be wound up, upon the first to occur of the following: (i) the unanimous written consent of the Members to dissolve the Company, (ii) upon the occurrence of any event that results in a Member ceasing to be a Member of the Company under the Act (including, without limitation, the death, retirement, resignation, expulsion, bankruptcy or dissolution of a Member or the occurrence of any other event which terminates the continued membership of a Member in the Company) or (iii) the entry of a decree of judicial dissolution under the Act. (b) In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner) and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in the Act. -11- 25. Termination. The Company shall terminate when all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Members in the manner provided for in this Agreement and the Certificate of Formation shall have been canceled in the manner required by the Act. 26. Claims of the Members. The Members shall look solely to the Company's assets for the return of its capital contributions, and if the assets of the Company remaining after payment of or due provision for all debts, liabilities and obligations of the Company are insufficient to return such capital contributions, the Members shall have no recourse against the Company. 27. Separability of Provisions. Each provision of this Agreement shall be considered separable and if for any reason any provision or provisions herein are determined to be invalid, unenforceable or illegal under any existing or future law, such invalidity, unenforceability or illegality shall not impair the operation of or affect those portions of this Agreement, that are valid, enforceable and legal. 28. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original of this Agreement. 29. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior understandings or agreements between the parties. -12- 30. Governing Law. This Agreement shall be governed by, and construed under, the laws of the State of Delaware (without regard to conflict of laws principles), all rights and remedies being governed by said laws. 31. Amendments. This Agreement may not be modified, altered, supplemented or amended except pursuant to a written agreement executed and delivered by the Members and all the Manager(s). IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Agreement as of the date provided above. TOLL DE X. L.L.C.: - ------------------ By: Thomas C. Martin Authorized Representative Thomas C. Martin - ---------------------------- TOLL NJX-I, CORP., member 1105 N. Market Street Suite 1026 Wilmington DE 19899-1026 By: Thomas C. Martin Incorporator Thomas C. Martin --------------------------------- TOLL NJX-II, CORP., member 1105 N. Market Street Suite 1026 Wilmington DE 19899-1026 By: Thomas C. Martin Incorporator Thomas C. Martin --------------------------------- -13- EXHIBIT A TO LIMITED LIABILITY COMPANY AGREEMENT OF TOLL DE X, LLC Certificate of Formation [See attached] -14- EXHIBIT B TO LIMITED LIABILITY COMPANY AGREEMENT OF TOLL DE X, LLC Form of Membership Interest Certificate [See attached] -15- EX-3.81 77 ex3-81.txt EXHIBIT 3.81 Exhibit 3.81 TOLL PHILMONT CORPORATION BY-LAWS ARTICLE I - OFFICES 1.1 Registered Office: The registered office shall be in the City of Wilmington, County of New Castle, State of Delaware. 1.2 Other Offices: The corporation may also have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the corporation may require. ARTICLE II - MEETINGS OF STOCKHOLDERS 2.1 Place of Meetings: All meetings of the stockholders for the election of directors shall be held in the City of Horsham, State of Pennsylvania, at such place as may be fixed from time to time by the Board of Directors, or at such other place either within or without the State of Delaware as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting. Meetings of stockholders for any other purpose may be held at such time and place, within or without the State of Delaware, as shall be stated in the notice of the meeting or in a duly executed waiver of notice thereof. 2.2 Date of Annual Meeting: Annual meetings of stockholders, commencing with the year 1989, shall be held on the third Friday of September if not a legal holiday, and if a legal holiday, then on the next secular day following, at 10:00 o'clock a.m., or at such other date and time as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting, at which they shall elect by a plurality vote a Board of Directors, and transact such other business as may properly be brought before the meeting. 2.3 Notice of Annual Meeting: Written notice of the annual meeting stating the place, date and hour of the meeting shall be given to each stockholder entitled to vote at such meeting not less than ten nor more than sixty days before the date of the meeting. 2.4 Stockholders List: The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholders, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. 2.5 Special Meetings: Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the certificate of incorporation, may be called by the president and shall be called by the president or secretary at the request in writing of a majority of the board of directors, or at the request in writing of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled to vote. Such request shall state the purpose or purposes of the proposed meeting. 2.6 Notice of Special Meetings: Written notice of a special meeting stating the place, date and hour of the meeting and the purpose or purposes for which the meeting is called, shall be given not less than ten nor more than sixty days before the date of the meeting, to each stockholder entitled to vote at such meeting. 2.7 Business Transacted at Special Meeting: Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the notice. 2.8 Quorum: The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum shall not be present or represented at any meeting of the stockholders, the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. If the adjournment is for more than thirty days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. 2.9 Vote Required: When a quorum is present at any meeting, the vote of the holders of a majority of the stock having voting power present in person or represented by proxy shall decide any question brought before such meeting, unless the question is one upon which by express provision of the statutes or of the certificate of incorporation, a different vote is required in which case such express provision shall govern and control the decision of such question. 2.10 Voting: Unless otherwise provided in the certificate of incorporation each stockholder shall at every meeting of the stockholders be entitled to one vote in person or by proxy for each share of the capital stock having voting power held by such stockholder, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. At all elections of the directors of the corporation each stockholder having voting power shall be entitled to exercise the right to cumulative voting, but only if so provided in the certificate of incorporation. 2.11 Action Without Meeting: Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of the corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. -2- ARTICLE III - DIRECTORS 3.1 Number of Directors: The number of directors which shall constitute the whole board shall be three. The directors shall be elected at the annual meeting of the stockholders, except as provided in Section 2.2 of these By-Laws, and each director elected shall hold office until his successor is elected and qualified. Directors need not be stockholders. 3.2 Vacancies: Vacancies and newly created directorships resulting from any increase in the authorized number of directors may be filled by a majority of the directors then in office, though less than a quorum, or by a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced. If there are no directors in office, then an election of directors may be held in the manner provided by statute. If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least ten percent of the total number of the shares at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office. 3.3 Powers of Directors: The business of the corporation shall be managed by or under the direction of its board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or by the certificate of incorporation or by these by-laws directed or required to be exercised or done by the stockholders. 3.4 Place of Meetings: The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware. 3.5 First Meeting: The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the newly elected directors in order legally to constitute the meeting, provided a quorum shall be present. In the event of the failure of the stockholders to fix the time or place of such first meeting of the newly elected board of directors, or in the event such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall be specified in a notice given as hereinafter provided for special meetings of the board of directors or as shall be specified in a written waiver signed by all of the directors. 3.6 Regular Meetings: Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board. 3.7 Special Meetings: Special meetings of the board may be called by the president on one days' notice to each director, either personally or by mail or by telegram; special meetings shall be called by the president or secretary in like manner and on like notice on the written request of two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director. 3.8 Quorum; Vote Necessary: At all meetings of the board, two directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present. -3- 3.9 Action Without Meeting: Unless otherwise restricted by the certificate of incorporation or these by-laws, any action required or permitted to be taken at any meeting of the board of directors or of any committee thereof may be taken without a meeting, if all members of the board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the board or committee. 3.10 Telephonic Communications: Unless otherwise restricted by the certificate of incorporation or these by-laws, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting. 3.11 Committees of Directors: The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided in the resolution of the board of directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending the certificate of incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution or the certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the board of directors. 3.12 Minute of Committees: Each committee shall keep regular minutes of its meetings and report the same to the board of directors when required. 3.13 Compensation of Directors: Unless otherwise restricted by the certificate of incorporation or these by-laws, the board of directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the board of directors and may be paid a fixed sum for attendance at each meeting of the board of directors or a stated salary as director. No such payment shall preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings. 3.14 Removal of Directors: Unless otherwise restricted by the certificate of incorporation or by law, any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of shares entitled to vote at an election of directors. -4- ARTICLE IV - NOTICES 4.1 Form: Whenever, under the provisions of the statutes or of the certificate of incorporation or of these by-laws, notice is required to be given to any director or stockholder, it shall not be construed to mean personal notice, but such notice may be given in writing, by mail, addressed to such director or stockholder, at his address as it appears on the records of the corporation, with postage thereon prepaid, and such notice shall be deemed to be given at the time when the same shall be deposited in the United States mail. Notice to directors may also be given by telegram. 4.2 Waiver: Whenever any notice is required to be given under the provisions of the statutes or of the certificate of incorporation or of these by-laws, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. ARTICLE V - OFFICERS 5.1 Officers Required: The officers of the corporation shall be chosen by the board of directors and shall be a president, a vice-president, a secretary and a treasurer. The board of directors may also choose additional vice-presidents, and one or more assistant secretaries and assistant, treasurers. Any number of offices may be held by the same person, unless the certificate of incorporation or these by-laws otherwise provide. 5.2 Election by Directors: The board of directors at its first meeting after each annual meeting of stockholders shall choose a president, one or more vice-presidents, a secretary and a treasurer. 5.3 Other Officers: The board of directors may appoint such other officers and agents as it shall deem necessary who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. 5.4 Salaries: The salaries of all officers and agents of the corporation shall be fixed by the board of directors. 5.5 Term; Removal; Vacancy: The officers of the corporation shall hold office until their successors are chosen and qualify. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the board of directors. Any vacancy occurring in any office of the corporation shall be filled by the board of directors. 5.6 President's General Duties: The president shall be the chief executive officer of the corporation, shall preside at all meetings of the stockholders and the board of directors, shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. 5.7 President's Execution of Contracts: He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. 5.8 Vice-President's Duties: In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice-presidents in the order designated by the directors, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. The vice-presidents shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. -5- 5.9 Secretary's Duties: The secretary shall attend all meetings of the board of directors and all meetings of the stockholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall have custody of the corporate seal of the corporation and he, or an assistant secretary, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested by his signature or by the signature of such assistant secretary. The board of directors may give general authority to any other officer to affix the seal of the corporation and to attest the affixing by his signature. 5.10 Assistant Secretary's Duties: The assistant secretary, or if there be more than one, the assistant secretaries in the order determined by the board of directors (or if there be no such determination, then in the order of their election) shall, in the absence of the secretary or in the event of his inability or refusal to act, perform the, duties and exercise the powers of the secretary and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. 5.11 Treasurer's General Duties: The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all monies and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. 5.12 Treasurer to Disburse Funds: He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. 5.13 Treasurer's Bond: If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. 5.14 Assistant Treasurer's Duties: The assistant treasurer, or if there shall be more than one, the assistant treasurers in the order determined by the board of directors (or if there be no such determination, then in the order of their election), shall, in the absence of the treasurer or in the event of his inability or refusal to act, perform the duties and exercise the powers of the treasurer and shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. -6- ARTICLE VI - 6.1 Certificate of Stock: Every holder of stock in the corporation shall be entitled to have a certificate, signed by, or in the name of the corporation by, the chairman or vice-chairman of the board of directors, or the president or a vice-president and the treasurer or an assistant treasurer, or the secretary or an assistant secretary of the corporation, certifying the number of shares owned by him in the corporation. Certificates may be issued for partly paid shares and in such case upon the face or back of the certificates issued to represent any such partly paid shares, the total amount of the consideration to be paid therefor, and the amount paid thereon shall be specified. If the corporation shall be authorized to issue more than one class of stock, or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided in Section 202 of the General Corporation Law of Delaware, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate-which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights or each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights. 6.2 Signatures: Any of or all the signatures on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issue. 6.3 Lost Certificates: The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost, stolen or destroyed. 6.4 Transfer of Stock: Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. 6.5 Fixing Record Date: In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty nor less than ten days before the date of such meeting, nor more than sixty days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the board of directors may fix a new record date for the adjourned meeting. -7- 6.6 Registered Stockholders: The corporation shall be entitled to recognize the exclusive right of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and to hold liable for calls and assessments a person registered on its books as the owner of shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of Delaware. ARTICLE VII - GENERAL PROVISIONS 7.1 Dividends: Dividends upon the capital stock of the corporation, subject to the provisions of the certificate of incorporation, if any, may be declared by the board of directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock, subject to the provisions of the certificate of incorporation. 7.2 Reserves: Before payment of any dividend, there may be set aside out of any funds of the corporation available for dividends such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the directors shall think conducive to the interest of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. 7.3 Annual Statement: The board of directors shall present at each annual meeting, and at any special meeting of the stockholders when called, for by vote of the stockholders, a full and clear statement of the business and condition of the corporation. 7.4 Checks: All checks or demands for money and notes of the corporation shall be signed by such officer or officers or such other person or persons as the board of directors may from time to time designate. 7.5 Fiscal Year: The fiscal year of the corporation shall be fixed by resolution of the board of directors. 7.6 Seal: The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Delaware." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. ARTICLE VIII - INDEMNIFICATION 8.1 Actions By Third Parties: The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. -8- 8.2 Actions By or In the Right of the Corporation: The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action of suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. 8.3 Expenses of Successful Defense: To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in sections 8.1 and 8.2 of these by-laws, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith. 8.4 Determination That Indemnification Is Proper: Any indemnification under Sections 8.1 and 8.2 of these by-laws, (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections 8.1 and 8.2 of these by-laws. Such determination shall be made (1) by the board of directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the stockholders. 8.5 Advances: Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding as authorized by the board of directors in the specific case upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the corporation as authorized in this section. 8.6 Provisions Not Exclusive: The indemnification provided by this Article VIII shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any by-law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. 8.7 Insurance: The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article VIII. -9- 8.8 Constituent Corporation: For purposes of this Article VIII, references to "the corporation" shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify the directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article VIII with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. 8.9 Other Enterprises; Fines; Services: For purposes of this Article VIII, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interest of the corporation" as referred to in this Article VIII. 8.10 Continuation of Indemnification and Advancement of Expenses: The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VIII shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. ARTICLE IX - AMENDMENTS 9.1 Amendments by Stockholders or Directors: These by-laws may be altered, amended or repealed or new by-laws may be adopted by the stockholders or by the board of directors, when such power is conferred upon the board of directors by the certificate of incorporation at any regular meeting of the stockholders or of the board of directors or at any special meeting of the stockholders or of the board of directors if notice of such alteration, amendment, repeal or adoption of new by-laws be contained in the notice of such special meeting. If the power to adopt, amend or repeal by-laws is conferred upon the board of directors by the certificate of incorporation it shall not divest or limit the power of the stockholders to adopt, amend or repeal by-laws. -10- EX-3.82 78 ex3-82.txt EXHIBIT 3.82 Exhibit 3.82 ARTICLES OF INCORPORATION OF FRENCHMAN'S RESERVE COUNTRY CLUB, INC. (A Not-For-Profit Corporation) In compliance with Section 617.1006 of the Florida Statutes and the laws of the State of Florida, and for the purpose of forming a not-for-profit corporation, the undersigned does hereby acknowledge that: ARTICLE I NAME OF CORPORATION The name of the corporation is Frenchman's Reserve Country Club, Inc. (hereinafter referred to as the "Club"). Its principal office is located at 3370 Grande Corniche, Palm Beach Gardens, Florida 33410 or at such other place as may be designated, from time to time, by the Board of Directors. ARTICLE II DURATION The period of duration of the Club is perpetual. ARTICLE III PURPOSE AND POWERS The sole purpose of the Club is to own and operate a private golf, tennis, swimming, exercise and social club for the social, pleasure, recreation and other nonprofitable purposes of its members, immediate family members, guests and other users permitted from time to time. The Club is organized exclusively for social, pleasure, recreation and other nonprofitable purposes. The Club shall be empowered to acquire, rent, lease, let, hold, own, buy, convey, mortgage, bond, sell or assign property, real, personal or mixed, and to borrow money, whether secured or unsecured, and to do and perform all such other acts and things and engage in any lawful act or activity as may be allowed by the laws of the State of Florida with respect to not-for-profit corporations, as those laws now exist or as they may hereafter provide and to have and exercise all powers necessary or convenient to effect any or all of the purposes for which the Club is organized. The Club is not a homeowners association under Chapter 720 of the Florida Statutes; accordingly, the provisions of Chapter 720 of the Florida Statutes do not apply to the Club. ARTICLE IV PROHIBITION AGAINST DISTRIBUTION OF INCOME The Club is one that does not permit pecuniary gain or profit. After the date of the transfer of the management and control of the Club to the members of the Club, as set forth in the agreement referred to in Article IX below, no part of any net earnings of the Club shall inure to the benefit of any member of the Club, member of the Board of Directors, officer of the Club, any private shareholder or any other private individual, and as such they will have no interest in or title to any of the property or assets of the Club. Nothing herein shall prohibit the Club from reimbursing the members of the Board of Directors and officers of the Club for all expenses reasonably incurred in performing services rendered to the Club. ARTICLE V CAPITAL STOCK The Club shall have no capital stock and shall be composed of members rather than shareholders as further described in the By-Laws of the Club. ARTICLE VI QUALIFICATIONS OF MEMBERSHIP The classifications, qualifications, characteristics, rights, privileges, limitations and obligations of membership and the manner of admission shall be as set forth in and regulated by the By-Laws of the Club. ARTICLE VII VOTING RIGHTS Members of the Club shall have such voting rights as are set forth in the By-Laws of the Club. ARTICLE VIII LIABILITY FOR DEBTS Members of the Club, members of the Board of Directors and officers of the Club shall not be liable for the debts of the Club. ARTICLE IX BOARD OF DIRECTORS Until the date of the transfer of management and control of the Club to the members of the Club, as provided in that certain Subscription Agreement between the Club and Binks Estates Limited Partnership, a Florida limited partnership (the "Company"), the Company or any designee of the Company shall designate all members of the Board of Directors. After the date of the transfer of management and control of the Club to the members of the Club as provided above, the equity members of the Club shall be entitled to elect the members of the Board of Directors as provided in the By-Laws of the Club. ARTICLE X INDEMNIFICATION The Club shall indemnify and hold harmless each person who shall serve at any time hereafter as a member of the Board of Directors, the Advisory Board of Directors or as an officer of the Club from and against any and all claims and liabilities to which such person shall become subject by reason of his or her having been, or hereafter being, a member of the Board of Directors, the Advisory Board of Directors or an officer of the Club, or by reason of any action alleged to have been taken or omitted by him or her as such member of the Board of Directors, the Advisory Board of Directors or officer of the Club, and shall reimburse each such person for all legal and other expenses reasonably incurred by him or her in connection with any such claim or liability to the fullest extent permitted by applicable Florida law. However, no such person shall be indemnified against, or be reimbursed for, any expense incurred in connection with any claim or liability arising out of his or her willful misconduct. -2- ARTICLE XI DISSOLUTION In the event of dissolution or final liquidation of the Club after date of the transfer of management and control of the Club to the members of the Club, all of the property and assets of the Club, after payment of its debts, shall be distributed, as permitted by applicable Florida law and a court having jurisdiction, among the holders of the outstanding dues paying equity memberships of the Club in proportion to the value of their equity memberships as fixed by the Club at that time. ARTICLE XII TRANSFER OF MEMBERSHIP A membership may be transferred only through the Club in accordance with the procedure set forth in the By-Laws of the Club. ARTICLE XIII INCORPORATOR The name of the incorporator is Robert P. Fordham, Sr. and the street address of the incorporator is 16100 One Mile Road, Palm Beach County, Delray Beach, Florida 33446. ARTICLE XIV REGISTERED OFFICE AND REGISTERED AGENT The street address of the registered office for the Club is 16100 One Mile Road, Palm Beach County, Delray Beach, Florida 33446, and the name of its registered agent at that address is Robert P. Fordham, Sr. IN WITNESS WHEREOF, the Incorporator has executed these Articles of Incorporation this 13th day of November, 2001. Robert P. Fordham, Sr. ------------------------------------ Robert P. Fordham, Sr., Incorporator -3- ACCEPTANCE OF REGISTERED AGENT FOR FRENCHMAN'S RESERVE COUNTRY CLUB, INC. Having been named as registered agent and to accept service of process for the above stated corporation at the place designated in this certificate, I hereby accept the appointment as registered agent and agree to act in this capacity. I further agree to comply with the provisions of all statutes relating to the proper and complete performance of my duties, and I am familiar with and accept the obligations of my position as registered agent. Dated this 13th day of November, 2001. Robert P. Fordham, Sr. ---------------------- Robert P. Fordham, Sr. STATE OF FLORIDA ) ): SS COUNTY OF DADE ) The foregoing instrument was acknowledged before me this 13th day of November, 2001 by Robert P. Fordham, Sr., who is personally known t me or who has produced personally [illegible language] as identification. My commission expires: Noreen Ritter ------------------ NOTARY PUBLIC, State of Florida Print Name: Noreen Ritter [NOTARY SEAL] EX-3.83 79 ex3-83.txt EXHIBIT 3.83 Exhibit 3.83 FRENCHMAN'S RESERVE COUNTRY CLUB BY-LAWS ARTICLE I PURPOSE AND DURATION OF CLUB The nature and purpose of Frenchman's Reserve Country Club, Inc. (hereinafter referred to as the "Club") is to own and operate a private golf, tennis, swimming, exercise and social oriented club for the recreation, pleasure and benefit of its members and their immediate family members and guests. The Club and the Company (as defined below) shall offer equity memberships and non-equity memberships pursuant to a membership plan and its exhibits (the "Membership Plan") which may be amended from time to time in accordance with its terms. The period of duration of the Club is perpetual. The Club is not a homeowners association under Chapter 720 of the Florida Statutes; accordingly, the provisions of Chapter 720 of the Florida Statutes do not apply to the Club. ARTICLE II CLUB EMBLEM The emblem of the Club shall be of a style and design to be approved by the Board of Directors. ARTICLE III MEMBERS MEETINGS 1. Annual Meeting An annual meeting of the Equity Members shall be held for the purposes of receiving reports of officers and others, to elect Directors and for such other business as may be properly brought before the meeting. 2. Date And Place Of Annual Meeting The first annual meeting of the Equity Members shall be held within one (1) year after the date of the turnover of management and control of the facilities provided at Frenchman's Reserve Country Club (hereinafter referred to as the "Turnover Date") to the members of the Club by Binks Estates Limited Partnership, a Florida limited partnership (hereinafter referred to as the "Company") as further described in the Subscription Agreement dated November, 2001 entered into by and between the Club and the Company (hereinafter referred to as the "Subscription Agreement"). Each annual meeting shall be held at the time and place designated by the Board of Directors. 3. Special Meeting Special meetings of the Equity Members may be called by the President, a majority of the members of the Board of Directors or, if after the Turnover Date, by the written request of at least twenty-five percent (25%) of the votes associated with the outstanding Equity Memberships. A request for a special meeting shall be submitted to the President who shall call a special meeting within thirty (30) days of the date of receipt of the request. Notices of any special meeting must contain a statement of the purpose(s) for which the special meeting is called and no other business may be transacted at that meeting. 4. Notices The Secretary shall give at least ten (10) days, but not more than sixty (60) days, prior notice, by mail, prepaid, to all Equity Members, stating the place, day and hour of the meeting, and in the case of a special meeting, the purpose or purposes for which the special meeting is called. Notice of any meeting shall be posted on the official bulletin board at the clubhouse on the date of its mailing to the Equity Members. 5. Quorum The presence, either in person or by proxy, of Equity Members having twenty percent (20%) of the votes then entitled to be voted shall constitute a quorum at any meeting of the Equity Members. 6. Voting Percentage A majority of the votes cast, either in person or by proxy, is necessary for passage of any motion, except as otherwise expressly provided herein. 7. No Action Without Meetings Action may be taken by the Equity Members only at a properly called and noticed annual or special meeting of the Equity Members. Action may not be taken by the written consent of the Equity Members in lieu of such annual or special meeting. 8. Fixing Of Record Date For the purpose of determining the Equity Members entitled to notice of or to vote at any meeting of the Equity Members, or in order to make a determination of the Equity Members for any other proper purpose, the Board of Directors of the Club may fix in advance a date as the record date for any such determination of the Equity Members, such date in any case to be no more than sixty (60) days and not less than ten (10) days, before the date of such meeting. If no record date is fixed for the determination of the Equity Members entitled to notice of, or to vote at, a meeting of the Equity Members, the date on which notice of the meeting is mailed shall be record date or such determination of the Equity Members. When determination of the Equity Members entitled to vote at any meeting of the Equity Members has been made, such determination shall apply to any adjournment of the meeting. -2- ARTICLE IV BOARD OF DIRECTORS 1. Number And Qualifications The government and administration of the affairs and the property of the Club shall be vested in a Board of Directors. Prior to the Turnover Date, all members of the Board of Directors of the Club shall be designated by the Company. Members of the Board of Directors appointed by the Company prior to the Turnover Date are not required to be members of the Club. Subsequent to the Turnover Date, the Board of Directors shall consist of nine (9) members unless otherwise determined by the Equity Members from time to time. Subsequent to the Turnover Date, all members of the Board of Directors must be Equity Members. Only Equity Members in good standing may be nominated or appear on any ballot as a candidate for election to the Board of Directors of the Club after the Turnover Date. 2. Elections (a) There shall be no cumulative voting and no preemptive rights. (b) Voting shall either be in person or by proxy. (c) The number of candidates necessary to fill the vacancies on the Board of Directors receiving the highest number of votes at the annual meeting of the Equity Members for each designated term shall be declared elected. (d) Until the Turnover Date, the Company will designate all the members of the Board of Directors. Subsequent to the Turnover Date, the Equity Members will elect the members of the Board of Directors at the annual meeting of the Equity Members. 3. Term Immediately prior to the Turnover Date, the President of the Club shall call a special meeting of the Equity Members for the purpose of electing nine (9) Equity Members to serve as the Advisory Board of Governors (as hereinafter defined) until the Turnover Date and to serve as the Board of Directors of the Club commencing on the Turnover Date. Of the nine (9) Equity Members who become the Board of Directors at that time, the three (3) Equity Members receiving the highest number of votes shall be elected to serve for three (3) years commencing on the Turnover Date, the three (3) Equity Members receiving the next highest number of votes shall be elected to serve for two (2) years commencing on the Turnover Date and the three (3) Equity Members receiving the next highest number of votes shall be elected to serve for one (1) year commencing on the Turnover Date. Each year following the Turnover Date, the Equity Members will elect three (3) Equity Members to the Board of Directors who will serve for a term of three (3) years. -3- ARTICLE V MEETINGS OF BOARD OF DIRECTORS 1. Annual Meeting Each year the Board of Directors shall hold its annual meeting to elect officers and to consider any other matters that may be properly brought before the meeting. After the Turnover Date, the annual meeting of the Board of Directors shall be held within ten (10) days after the annual meeting of the Equity Members. 2. Quorum A majority of all of the members of the Board of Directors shall constitute a quorum at any meeting for the transaction of business. 3. Regular Meetings After the Turnover Date, the Board of Directors shall have a minimum of six (6) regular meetings in each year at such times as the Board of Directors shall determine. Except as otherwise expressly provided herein, a majority of the votes cast at any meeting of the Board of Directors where a quorum is present is necessary for passage of any motion. 4. Special Meetings Special meetings of the Board of Directors may be called by or at the request of the President or any two Directors. The person or persons authorized to call special meetings of the Board of Directors may fix any place as the place for holding any special meeting of the Board of Directors called by them. 5. Notice Notice of any regular or special meeting of the Board of Directors shall be given at least five (5) days previous thereto by written notice to each Director at his or her address as shown by the records of the Club, except that no special meeting of Directors may remove a Director unless written notice of the proposed removal is delivered to all Directors at least twenty (20) days prior to such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail in a sealed envelope so addressed, with postage thereon prepaid. Notice of any special meeting of the Board of Directors may be waived in writing signed by the person or persons entitled to notice either before or after the time of the meeting. The attendance of a Director at any meeting shall constitute a waiver of notice of such meeting, except where a Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting, unless specifically required by law or these By-Laws. -4- 6. Telephonic Meetings Members of the Board of Directors may participate in any meeting by means of a conference telephone or similar communications equipment. All persons participating in the meeting must be able to hear each other at the same time. Participation by such means will constitute presence in person at the meeting. ARTICLE VI POWERS OF THE BOARD OF DIRECTORS 1. Management Of The Club The Board of Directors shall exercise all powers of the Club and do all acts and things necessary to carry out the purposes of the Club. 2. Duties And Powers The Board of Directors shall: (a) Elect the officers of the Club; (b) Appoint committees and assign duties; (c) Fill vacancies on the Board of Directors due to death, resignation, inability to perform duties, or otherwise, until the next election of Directors by the Equity Members except for those Directors to be appointed by the Company; (d) Appoint managers and other employees and delegate such authority as is considered necessary for the proper operation and management of the Club; (e) Adopt, alter, amend or repeal the Rules and Regulations governing use of the Club Facilities by members, immediate family members and their guests; (f) Establish the amount of the membership contribution for each classification of membership and its terms of payment, and the amount of dues, fees, dining minimums, assessments and other charges, except as otherwise provided in the Subscription Agreement; (g) Have the power to replace any Director who shall fail to attend fifty percent (50%) of the regular meetings of the Board of Directors in any one (1) membership year; (h) Have the power to expend funds to the extent of the amount in the Club's treasury or owing to the Club; to make contracts with third parties, including, but not limited to, Frenchman's Creek Master Property Owners Association, Inc.; to borrow money and incur indebtedness on behalf of the Club; and, to cause promissory notes, bonds, mortgages, deeds of trust or other evidences of indebtedness to be executed and issued; -5- (i) Have the power to exchange privileges to use the Club Facilities with members of other clubs; and (j) All such other acts and things as are permitted by the laws of the State of Florida with respect to not-for-profit corporations, as those laws now exist or as they may hereafter provide. 3. Issuance Of Memberships The Board of Directors shall have authority to issue, cancel and transfer memberships and shall have certificates of membership prepared in form and content consistent with the provisions of the Articles of Incorporation and these By-Laws of the Club. 4. Compensation No Director shall receive a salary or any other compensation whatsoever, but shall be entitled to reimbursement for all expenses reasonably incurred in performing any duties pursuant to these By-Laws. 5. Interpretation Of By-Laws The Board of Directors shall have the corporate power to generally do everything permitted by non-for-profit corporations by law, statute, its Articles of Incorporation and these By-Laws, and to determine the interpretation or construction of these By-Laws, or any parts thereof, which may be in conflict or of doubtful meaning, and its decision shall be final and conclusive. The Club is not a homeowners association under Chapter 720 of the Florida Statutes; accordingly, the provisions of Chapter 720 of the Florida Statutes do not apply to the Club. 6. Action Without Meetings Any action which may be taken by the Board of Directors, or any committee thereof, may be taken without a meeting if consent in writing setting forth the action taken, signed by all of the Directors entitled to vote, or all of the members of the committee, as the case may be, is filed in the minutes of the proceedings of the Board of Directors or the committee. A consent shall have the effect of a unanimous vote. ARTICLE VII OFFICERS The Board of Directors at each annual meeting shall elect, to serve for a term of one (1) year and until their successors shall be elected, a President, Vice President, Treasurer and Secretary, and such other officers as the Board of Directors may from time to time determine appropriate. Commencing with the Turnover Date, each officer must be a member of the Board of Directors of the Club. The officers shall not be liable for the debts of the Club. -6- ARTICLE VIII DUTIES OF OFFICERS 1. President The President shall preside at all meetings of the Equity Members and the Directors and enforce observance of the provisions of these By-Laws and all Rules and Regulations of the Club. The President may call special meetings of the Board of Directors, shall be an ex-officio member of all committees and is empowered to execute all papers and documents requiring execution in the name of the Club. 2. Vice President The Vice President shall assist the President in his/her duties, and in the absence or disability of the President, the Vice President shall perform and carry out all duties and responsibilities of the President. 3. Secretary The Secretary shall keep, or cause to be kept, records and minutes of all meetings of the Board of Directors and the membership, and the Secretary shall be responsible for giving all required notices of meetings. The Secretary shall have custody of the Seal of the Club and all membership records shall be kept under the Secretary's supervision. 4. Treasurer The Treasurer shall be Chairman of the Finance Committee. The Treasurer shall cause to be collected, held and disbursed, under the direction of the Board of Directors, all monies of the Club, and it shall be the Treasurer's duty to collect monies due the Club from the issuance of memberships, dues, fees, dining minimums, assessments and charges of members of the Club, and all amounts due from others. The Treasurer shall keep or cause to be kept, at the Club, regular books of account and all financial records of the Club, and shall prepare budgets and financial statements, when and in the form requested by the Board of Directors. The Treasurer shall deposit or cause to be deposited all monies of the Club in an account or accounts in the Club's name, in the bank or banks designated by the Board of Directors, and shall give a surety bond for faithful performance in the amount directed by the Board of Directors, which surety bond premium shall be paid by the Club. Any other person or persons having access to monies of the Club or its bank accounts shall be similarly bonded. 5. Other Officers The Board of Directors may fill vacancies in any office or new office created at any meeting of the Board of Directors. 6. Duties Of Officers Any officer may be given additional assignments and duties by the Board of Directors. -7- 7. Removal From Office Any officer may be removed from office, with or without cause, by a two-thirds (2/3) vote of the members of the Board of Directors. 8. General Manager A General Manager shall be employed by the Club and his/her salary shall be fixed by the Board of Directors. The General Manager shall be the operating head of all departments. All employees of the Club, except as otherwise specified herein, shall be employed, discharged, or otherwise controlled by the General Manager in keeping with the organizational chart and salary ranges approved by the Board of Directors. The General Manager shall establish all charges for food, beverage and services, in and about the clubhouse, subject to the approval of the Board of Directors. The General Manager is responsible for the proper management of all aspects of the Club's activities so as to assure maximum membership satisfaction; a sound financial operation compatible with the best interests of the members and their guests and Club employees; the maintenance and improvement of the quality of the Club's services; and the security and protection of the Club's assets and facilities. The General Manager reports to the Board of Directors and administers all policies established Board of Directors. The General Manager administers and manages all Club operations, except as stated herein, and shall devote his/her time and abilities exclusively to the operations of the Club and its facilities within the framework of the general policy promulgated by the Board of Directors. The duties of the General Manager include the following: (a) Provide the overall administration of the Club pursuant to the policies adopted by the Board of Directors and within the general provisions of these By-Laws, house rules, etc. (b) Responsible for the hiring, terminating and supervising of all Club personnel and establishing specific personnel policies, hourly wages, compensation benefits programs, job descriptions and personnel procedures in coordination with standing committees and broad guidance and general approval of the Board of Directors, and consistent with the rules and these By-Laws. Remuneration of salaried employees and independent contractors shall be reviewed normally on an annual basis by an ad hoc committee appointed by the President and chaired by the chairman of the Finance Committee. Recommended changes shall be submitted to the Board of Directors for approval. (c) Coordinate the various activities of the Club and achieve the appropriate cooperation and coordination of the various operations and departments of the Club. (d) Communicate with Equity Members, committees, the Board of Directors and the Club personnel as necessary to accomplish the goals and objectives of the Club. (e) Attend meetings of the Board of Directors and the various committees with respect to which he/she shall be designated an ex-officio member. The General Manager shall arrange for proper minutes to be maintained for meetings of the Board of Directors, standing committees and ad hoc committees as appropriate. -8- (f) Although the General Manager may delegate some authority to the Golf Course Superintendent and other sports professionals, the General Manager shall remain responsible for all operations of the Club. (g) The Golf Course Superintendent shall report to the General Manager on all administrative matters including the following: accounting and financial aspects including payroll, purchasing procedure on approved budgeted items, both capital and operational, personnel procedures, acquisitions of necessary licenses and permits, club policy matters, course preparation and care, as well as course layout and all other physical aspects of the golf course and grounds and reporting requirements imposed by various regulatory agencies. The General Manager may delegate to the Golf Course Superintendent responsibility for hiring (and layoff) of his/her crew, salaries and wages as budgeted, and work schedules. (h) The sports professionals shall report to the General Manager on all administrative matters including but not limited to the following: implementation of individual contract provisions, accounting and financial aspects, including payroll, accounting for charges to members billed through the Club, maintenance and repair of Club space and property allotted to their operations and purchasing and procedure on approved budget items, both capital and operations. (i) The General Manager shall use sound fiscal methods in order to achieve the budget objective approved by the Board of Directors in the annual operating budget. The General Manager shall prepare the annual budget in conjunction with appropriate standing committees. (j) The General Manager shall discharge such duties as may be assigned to him/her by the Board of Directors or the President. ARTICLE IX COMMITTEES 1. Advisory Board Of Governors Prior to the Turnover Date, an Advisory Board of Governors will be established to serve as a liaison between management of the Club Facilities and the members at the Club (the "Advisory Board of Governors"). The Company will designate all of the members of the Advisory Board of Governors and all of the members of the Advisory Board of Governors must be Equity Members at Frenchman's Reserve Country Club. The Advisory Board of Governors shall have no duty or power to negotiate or otherwise act on behalf of the members and shall serve only in an advisory capacity until the Turnover Date except as expressly provided otherwise. In general, the role and responsibility of the Advisory Board of Governors include the following: -9- o To advise on any modification to the Plan for the Offering of Memberships which is materially adverse to the privileges of the Equity Members, o To advise on the use of the Club Facilities by non-members, o To advise on modifications to the Rules and Regulations, o To advise on questions of conduct, mode of dress and other related disciplinary matters, o To advise on the needs and interests of the membership, o To assist management of the Club Facilities in the establishment of Club committees and the responsibilities of each Club committee, o To advise management of the Club Facilities in the organization of member events and programs at Frenchman's Reserve Country Club, and o To participate in and attend Club events and programs for the membership. Management of the Club Facilities will meet with the Advisory Board of Governors regularly to discuss the operation of the Club Facilities. The members of Frenchman's Reserve Country Club are encouraged to utilize the Advisory Board of Governors by voicing their suggestions and concerns through the Advisory Board of Governors. Not more than sixty (60) days prior to the Turnover Date the members of the Advisory Board of Governors appointed by the Company shall resign, and the Equity Members shall elect nine (9) Equity Members to serve as the Advisory Board of Governors until the Turnover Date. On the Turnover Date, these nine (9) Equity Members shall become the Board of Directors of the Club. The Advisory Board of Governors will terminate on the Turnover Date. 2. Executive Committee The Executive Committee shall consist of the President as Chairman, the Vice President, the Secretary, the Treasurer and, in addition, one (1) member, of the Board of Directors. The Executive Committee shall have, to the extent not restricted by law, the powers of the Board of Directors during the interval between meetings of the Board of Directors. A quorum shall be a majority of the members of the Executive Committee. Actions and resolutions of the Executive Committee shall require unanimous approval of the members present. 3. Nominating Committee (a) At a meeting of the Board of Directors held not more than ninety (90) days and not less than sixty (60) days prior to the first election of the Board of Directors by the Equity Members prior to the Turnover Date and at each annual meeting of the Equity Members after the Turnover Date, the Board of Directors shall appoint a Nominating Committee. Except for the first election of the Board of Directors by the Equity Members immediately prior to the Turnover Date, the Nominating Committee shall consist of five (5) Equity Members, three (3) of whom shall be members of the Board of Directors. Members of the Nominating Committee shall serve for a term of one (1) year or until their successors are appointed and qualified. Unless specifically requested by a majority of the Board of Directors, the Nominating Committee shall not nominate candidates to fill any vacancies occurring by reason of death, resignation or otherwise, for any unexpired term. -10- (b) The Nominating Committee shall recommend to the Board of Directors, at least thirty (30) days prior to the Equity Member's annual meeting, the names of the Equity Members selected by a majority vote of the Nominating Committee to be submitted to the Equity Members at any annual meeting at which an election to the Board of Directors is held. (c) Ten percent (10%) or more of the total number of Equity Members entitled to vote who are not members of the Nominating Committee or the Board of Directors may also nominate candidates for the Board of Directors by petition signed by these Equity Members and filed with the Secretary of the Club at least thirty (30) days prior to the Equity Members' annual meeting. The names of these nominees, after having been certified by the Secretary or any other officer that they are qualified for election and have been nominated in accordance with the provisions of these By-Laws, shall be posted on the official bulletin board at the clubhouse and shall be included on any proxy mailing to members of the Club. 4. Standing Committees Each year after the Turnover Date, the President, subject to the approval of the Board of Directors, shall designate the chairman (who shall be a Director) and the members of each of the following committees: Membership, Finance, House, Golf, Tennis, Long-Range Planning, Grievance, and Legal and By-Laws. Prior to the Turnover Date, any of these committees may be organized in the sole discretion of the Board of Directors. (a) The Membership Committee shall investigate all applications for membership other than those memberships to be sold by the Company and shall report thereon to the Board of Directors with its recommendation as to approval of each application. The Board of Directors shall make the final determination whether to approve or disapprove an application. (b) The Finance Committee shall in general supervise, direct and control all matters pertaining to the Club's finances including, but not limited to, the placing of insurance, the filing of tax returns, the payment of taxes, the preparation of the annual operating budget, the preparation of the current reports for the Board of Directors on the Club's financial condition and the issuance to Equity Members of a condensed quarterly operating statement. The Finance Committee shall have the power, with the approval of the Board of Directors, to direct the General Manager to employ, at the expense of the Club, such clerical aid and assistance as may be necessary to handle the accounts. The account books and vouchers shall at all times be open to the inspection of any member of the Board of Directors. (c) Each of the following committees, subject to the approval of the Board of Directors, shall formulate programs in coordination with the General Manager and submit them with recommendations to the Board of Directors for approval. The General Manager shall have control of the execution of the programs and recommendations approved by the Board of Directors. Each committee shall act only as a consultant and advisor to the Board of Directors and may not act on behalf of the Club or bind it to any actions. -11- (i) House Committee The House Committee shall advise the Board of Directors on matters concerning the food and beverage operations of the Club, the social activities and entertainment of members, immediate family members and their guests. The House Committee shall advise the Board of Directors on matters concerning the maintenance and repair of all buildings, both interior and exterior, the supervision of all building construction and the maintenance, repair and supervision of all water and electrical lines and the facilities and equipment used in connection therewith, except those directly related to and concerning the maintenance or repair of the golf course. The trees, lawn, garden and shrubbery area of the Club's grounds which are not within the scope of the Golf Committee and the maintenance, repair and construction of wells, water tanks, pumps, fences and parking lots shall come under the jurisdiction of the House Committee. (ii) Golf Committee The Golf Committee shall advise the Board of Directors on matters concerning the employment of a Golf Professional and the scope of the operation of the professional, the promulgation of playing rules for members, immediate family members and their guests, the programming of golfing events for members, immediate family members and their guests and the maintenance of members' handicaps. United States Golf Association rules and regulations shall govern all golf play except where superseded by local rules. The Golf Committee shall also advise the Board of Directors on matters concerning the employment of a Greens Superintendent and the scope of the Greens Superintendent's operations and the maintenance of the golf course, roads, facilities and equipment used in connection therewith. No live trees shall be removed nor shall any alteration be made in the golf course except with the prior approval of the Board of Directors. (iii) Tennis Committee The Tennis Committee shall advise the Board of Directors on matters concerning the possible employment of a Tennis Professional, the scope of operations of the professional, the promulgation of playing rules for members, immediate family members and their guests and the programming of tennis events for members, immediate family members and their guests. The Tennis Committee shall advise the Board of Directors on the condition of, and make recommendations concerning the tennis courts and related equipment and facilities. (iv) Long-Range Planning Committee The Long-Range Planning Committee shall develop a long-range master plan for capital improvements for the Club including replacements and expansions of facilities; recommend to the Board of Directors a course or courses of action in pursuit of the long-range master plan including assignment of priorities within the plan; and perform other duties as may be otherwise specified by the Board of Directors. -12- (v) Grievance Committee The Grievance Committee shall consist of five (5) members, three (3) of whom shall be members of the Board of Directors. All written complaints relative to any member's conduct shall be first referred to the Grievance Committee. The Grievance Committee shall perform investigations as it deems necessary and shall present its recommendation to the Board of Directors in executive session. If the Grievance Committee's recommendation of a formal charge is approved by the Board of Directors, the committee shall draft and submit to the Board of Directors a letter of complaint. The Grievance Committee shall have no power of suspension or expulsion, but may have such powers of censure as may be directed by the Board of Directors. (vi) Legal and By-Laws Committee The Legal and By-Laws Committee shall be charged with the publication of the Rules and Regulations and any other regulations and By-Laws of the Club and, will advise and make recommendations to the Board of Directors concerning all matters of a legal nature pertaining to the Club and the Club Facilities. 5. Ad Hoc Committees The President, subject to the approval of the Board of Directors, may, from time to time, (i) appoint ad hoc committees, with the powers and composition as the President shall determine, (ii) determine the powers and composition of the committees and the term of committee chairman and members, and (iii) replace committee chairmen or members at any time, without cause. 6. Powers of Committees The several committees shall act only as advisory committees to the Board of Directors, and the individual members thereof shall have no power or authority. The chairman of each committee may appoint from the members of the committee such subcommittees as he or she deems desirable. All sub-committees shall report directly to the committee as a whole, which shall approve, amend or disapprove the report of the subcommittee. 7. Terms of Committee Chairmen and Committee Members Each committee chairman and each member of a committee shall serve until their replacement is designated as provided in Section 5 of this Article. ARTICLE X EQUITY MEMBERSHIPS 1. Number Of Equity Memberships The Club shall issue three classifications of Equity Membership known as Full Memberships, Sports Memberships and Social Memberships (collectively, the "Equity Memberships"). A person who acquires an Equity Membership is sometimes hereinafter referred to as an "Equity Member" or collectively as "Equity Members." Each Equity Membership represents an equity ownership interest in the Club. Each person who owns a residence or homesite in Frenchman's Reserve must maintain at least a Social Membership at the Club at all times a residence or homesite in Frenchman's Reserve is owned. -13- The Club reserves the right, but has no obligation, to issue and to make available other classifications of membership, including but not limited to, an exercise-oriented membership. However, if any of these additional classifications of membership have access to the golf facilities, then such access to the golf facilities shall be more restrictive than the access to the golf facilities provided to the Full Memberships and Sports Memberships. If additional classifications of membership are made available, the Club will establish the number of memberships available, the use privileges of the additional membership classifications and the fees to be paid for these additional classifications of membership. In order to provide continued enjoyment of the Club Facilities to all members, the maximum number of Full Memberships is limited to three hundred forty-nine (349). Although there is no limit on the number of Sports Memberships and Social Memberships, either the Company or the Club may limit the number of Sports Memberships and/or Social Memberships from time to time. 2. Eligibility For Equity Membership Full Memberships and Sports Memberships are being offered to initial retail purchasers of residences or homesites in Frenchman's Reserve from the Company and/or its affiliates who are approved for membership. Any classification of Equity Membership may also be offered to persons designated by the Company or the Club who do not own a residence or homesite in Frenchman's Reserve who are approved for membership. Each prospective member must submit an Application for Equity Membership, be approved for membership and pay the required membership contribution prior to obtaining a membership. All property owners in Frenchman's Reserve are required to be at least a Social Member at Frenchman's Reserve Country Club. Each purchaser of a residence or homesite in Frenchman's Reserve must submit a Social Member Information Profile (if only a Social Membership is desired) at the time of executing a purchase agreement to purchase a residence or homesite in Frenchman's Reserve and will have until thirty (30) days after executing the purchase agreement to purchase a residence or homesite in Frenchman's Reserve to upgrade and submit an Application for Equity Membership (if a Sports Membership or Full Membership is desired). Upon closing on the purchase of a residence or homesite in Frenchman's Reserve, the purchaser must acquire a Social Membership at the Club and pay any required membership contribution and maintain at least a Social Membership at the Club at all times while a residence or homesite is owned in Frenchman's Reserve. As a Social Member, the purchaser shall have the privileges described herein and shall pay the dues, fees, dining minimums, assessments and other charges established by the Club from time to time. Furthermore, the owner of a residence or homesite in Frenchman's Reserve shall not be permitted to resign or otherwise terminate the Social Membership and shall be required to pay such dues, fees, dining minimums, assessments and other charges associated with the Social Membership until the closing of the sale or other transfer of their residence or homesite in Frenchman's Reserve to another owner. The Club shall have the right to file a lien against a Social Member's residence or homesite in Frenchman's Reserve for non-payment of dues, fees, dining minimums, assessments and other charges established by the Club. -14- Initial retail purchasers of previously unsold residences or homesites in Frenchman's Reserve from the Company and/or its affiliates will have an opportunity to upgrade from the Social Membership and apply for an available Full Membership or Sports Membership for each residence or homesite purchased in Frenchman's Reserve until thirty days after executing the purchase agreement to purchase their residence or homesite in Frenchman's Reserve. Only one Equity Membership may be acquired for each residence or homesite. The number of memberships available in a particular classification of Equity Membership may be limited. The membership contribution to be paid for an Equity Membership will be the membership contribution charged on the date that the purchaser submits the Application for Equity Membership and pays the required portion of the membership contribution to the Director of Membership. The Company has retained the absolute right to reserve Full Memberships and Sports Memberships for sale to future initial retail purchasers of residences or homesites in Frenchman's Reserve from the Company and/or its affiliates. The Company may also reserve Equity Memberships for sale to any other party designated by the Company in its discretion. Reserved memberships are not considered as available memberships and neither the Company nor the Club may be compelled to issue a reserved membership. Full Memberships and Sports Memberships not acquired by the initial retail purchasers of residences or homesites in Frenchman's Reserve from the Company and/or its affiliates on or before thirty days after executing the purchase agreement to purchase a residence or homesite in Frenchman's Reserve shall be reserved by the Company for future sale or may be offered for sale by the Company as available memberships to any person designated by the Company, including but not limited to, persons who do not own a residence or homesite in Frenchman's Reserve. Initial retail purchasers of residences or homesites in Frenchman's Reserve from the Company and/or its affiliates who do not acquire an available Full Membership or Sports Membership on or before thirty days after executing the purchase agreement to purchase their residence or homesite in Frenchman's Reserve, and the subsequent purchasers of residences or homesites from persons who are not Full Members or Sports Members, may upgrade to an available Full Membership or Sports Membership through the regular membership upgrade process described herein. Therefore, following thirty days after executing the purchase agreement to purchase a residence or homesite in Frenchman's Reserve, there can be no guarantee or assurance that a Full Membership or Sports Membership will ever subsequently be available and neither the initial retail purchaser nor any subsequent purchaser of the residence or homesite in Frenchman's Reserve, will have any continuing opportunity to obtain a Full Membership or Sports Membership. IF AN INITIAL RETAIL PURCHASER OF A RESIDENCE OR HOMESITE IN FRENCHMAN'S RESERVE FROM THE COMPANY AND/OR ITS AFFILIATES DOES NOT ACQUIRE A FULL MEMBERSHIP OR SPORTS MEMBERSHIP ON OR BEFORE THIRTY DAYS AFTER EXECUTING THE PURCHASE AGREEMENT TO PURCHASE THEIR RESIDENCE OR HOMESITE IN FRENCHMAN'S RESERVE, IT IS HIGHLY UNLIKELY THAT SUCH FULL MEMBERSHIP OR SPORTS MEMBERSHIP WILL BE AVAILABLE AT A LATER DATE. -15- There is no assurance that an Equity Membership in the desired classification will be available at the time of application. If an Equity Membership in the desired classification is not available at the time of application or upgrade, the Club will maintain a waiting list consisting of applicants desiring to upgrade who have submitted an Application for Equity Membership on a first-come, first-served basis. Sports Members shall have priority over Social Members to acquire available Full Memberships. Notwithstanding anything to the contrary herein, persons who own a residence or homesite in Frenchman's Reserve who are on the Club's waiting list for an available membership shall have priority over persons who do not own a residence or homesite in Frenchman's Reserve to acquire any classification of Equity Membership that becomes available. In the event the desired classification of membership is not available at the time of application, the Company or the Club may defer the payment of the required membership contribution until the desired membership becomes available and may require such person to acquire another classification of membership at the Club until the desired membership classification becomes available. The initial retail purchaser of a residence or homesite in Frenchman's Reserve from the Company and/or its affiliates who has either submitted a Social Member Information Profile or Application for Equity Membership for an available Full Membership or Sports Membership within thirty days after executing a purchase agreement to acquire the residence or homesite may request to activate their membership use privileges prior to actually closing on the purchase of the residence or homesite. The Company and the Club, in their discretion, may permit, upon approval of the member and payment of the required portion of the membership contribution, dues, fees, dining minimums and other charges, the purchaser to activate the membership privileges and use the Club Facilities prior to actually closing on the purchase of the residence or homesite in Frenchman's Reserve. However, the continuation of membership privileges at Frenchman's Reserve Country Club is conditional upon the closing of the purchase of the residence or homesite in Frenchman's Reserve. In the event the purchaser does not close on the purchase of the residence or homesite in Frenchman's Reserve, then the Company and/or the Club may recall the membership and terminate membership privileges, in which event that portion of the membership contribution previously paid by the member and a prorata portion of any unused dues and fees paid in advance will be refunded. 3. Use Privileges Of Equity Membership Each Equity Member shall have the privileges and may use the Club Facilities as provided by the classification of membership selected by the member and all membership privileges are subject to these By-Laws and the Rules and Regulations established by the Club. Upon approval by the Club, payment of the applicable membership contribution, dues, fees, dining minimums, assessments, and other charges and compliance with the Rules and Regulations, Equity Members obtain the following use privileges. Full Membership. A Full Membership allows the member to use the golf, tennis, swimming, exercise and clubhouse facilities provided at Frenchman's Reserve Country Club and to attend club-sponsored events held at the Club. Full Members shall not be charged green fees or court fees for use of the golf and tennis facilities, but shall pay the applicable golf cart fees or annual trail fees. Full Members shall have such advance sign-up privileges to reserve golf starting times and tennis court times as may be established by the Club. -16- Sports Membership. A Sports Membership allows the member to use the golf (as described in this section), tennis, swimming, exercise and clubhouse facilities provided at Frenchman's Reserve Country Club and to attend club sponsored events held at the Club. Sports Members may use the golf facilities (including the practice range and putting green) from May 1 through October 31 without the payment of green fees. Sports Members may only play golf up to six times from November 1 through April 30 and must pay the required green fees. From November 1 through April 30, Sports Members may only use the practice range and putting green when the member is actually playing a round of golf. Sports Members shall always have a lesser advance sign-up privilege to reserve golf starting times than Full Members and shall pay the required golf cart fees or annual trail fees for use of the golf facilities. Sports Members shall have the same advance sign-up privilege to reserve tennis court times as Full Members, and shall not pay court fees for use of the tennis facilities. Social Membership. A Social Membership allows the member to use the swimming, exercise and dining facilities provided at the clubhouse at Frenchman's Reserve Country Club and to attend club-sponsored social events held at the Club. Social Members may not use the golf facilities or tennis facilities and may not participate in the privately-owned golf cart program at the Club. All property owners in Frenchman's Reserve are required to be at least a Social Member at Frenchman's Reserve Country Club. In order to provide for the orderly administration of the Club, the Club reserves the right, from time to time, to promulgate and modify rules governing access, sign-up privileges and starting times with respect to the golf, tennis and other recreational facilities provided at the Club in order to optimize the use of the Club Facilities. In order to better control golf play during peak playing times on the golf course, the Club may designate certain times on the golf course as "primary playing times." During times designated by the Club as "primary playing times", only one golf starting time may be reserved per membership. Memberships at Frenchman's Reserve Country Club shall be issued in the name of the individual applying for membership in the Application for Equity Membership. An Equity Membership allows the individual member and immediate family members (or the designee of a company-held membership and immediate family members) to use the facilities in accordance with the classification of membership selected and upon payment of the required dues, fees, dining minimums, assessments and other charges. The immediate family of a member or designee includes the spouse of the member or designee who is living in the member's or designee's home, and unmarried children who are under the age of twenty-three and either living in the member's or designee's home or attending school on a full-time basis. The Club reserves the right to restrict access to the golf and tennis facilities by immediate family members who are children during peak periods of play. -17- 4. Procedure For Upgrading An Equity Membership Because of the limited number of Full Memberships and the reservation of memberships by the Company, it is unlikely that a Full Membership will be available for an Equity Member desiring to upgrade. However, if a higher classification of membership becomes available, an Equity Member may upgrade to such higher classification of membership if permitted by the Company and the Club. An upgrading member shall pay the difference between the actual membership contribution originally paid, if any, for the classification of Equity Membership owned by the upgrading member and the membership contribution being charged for the higher classification of Equity Membership at the time the member desires to upgrade. In order to downgrade a Full Membership or a Sports Membership, the Full Member or Sports Member must first resign his or her current membership. Only after the current membership is resigned will the Club issue a lower classification of membership, if available at that time, to the member upon full payment of the required membership contribution. Notice to Upgrade: Sports Members and Social Members must provide written notice informing the Club of their desire to upgrade and will then be placed on a waiting list maintained by the Club for an available membership in the desired classification. The member may not withdraw the decision to upgrade without obtaining the Club's prior written consent. Waiting List: Upon receipt of the notice to upgrade from the member and approval by the Company and the Club, the Club will place the member's name on the waiting list for the desired classification of membership. The only Equity Memberships which are available in an upgrade situation are those memberships that become available as a result of the resignation of a Full Membership or Sports Membership which is not being transferred to the subsequent purchaser of their residence or homesite in Frenchman's Reserve as further described herein. All other Equity Memberships are reserved by the Company for sale to initial retail purchasers of residences or homesites in Frenchman's Reserve from the Company and/or its affiliates and are not considered available for upgrades. Purchase of a Higher Classification of Membership: If a membership becomes available in the desired classification of membership, the Club will notify in writing the next individual on the waiting list according to the priority set forth herein. The upgrading member shall pay the amount required for upgrading to the higher classification of membership within fifteen (15) days after the date of the Club's notice. At that time, the member assumes responsibility for all dues, fees, dining minimums, assessments and other charges associated with the higher classification of membership. Resignation of the Lower Classification of Membership: At the time of upgrade, the lower classification of membership shall be considered terminated and unissued and may be resold by the Company. The member will not be responsible for dues, fees, dining minimums, assessments or any other charges accruing in the lower classification of membership after the date of resignation and will not receive a refund of any amount when the lower classification of membership is reissued by the Company. -18- 5. Memberships May Be Held In The Name Of A Company, Partnership, Trust Or Other Form Of Multiple Ownership The Club may allow from time to time an Equity Membership to be held in the name of a company, corporation, limited liability company, partnership, trust or other form of multiple ownership (collectively, the "company"). If permitted by the Club, the company, as the actual member and owner of the membership, shall designate one person as the designee of the membership use privileges. Immediate family members of the designee may also use the facilities. Either the company or the designee of the membership use privileges must own a residence or homesite in Frenchman's Reserve. The designee of the membership use privileges must be an officer, director, partner, owner or employee of the company (or a trustee, donor or principal beneficiary of the trust), must submit an application and be approved. The company shall be responsible for the payment of the required membership contribution which may be higher than the membership contribution charged for a membership held by an individual and both the company and the designee of the membership use privileges shall be jointly and severally liable for the payment of all dues, fees, dining minimums and other charges incurred by the designee, immediate family members and their guests. The designee shall have the same use privileges and shall pay the same dues, fees, dining minimums and other charges as any other member in the same classification of membership. The designee of the membership use privileges may not be changed by the company, unless otherwise approved by the Club in writing and in advance and upon such terms and conditions as may be established by the Club from time to time. The Club may limit the number of companies that acquire a membership in a particular classification from time to time. 6. Membership Contribution Persons acquiring an Equity Membership at Frenchman's Reserve Country Club shall pay the membership contribution set forth in the Application for Equity Membership. Until the initial sale of all Equity Memberships permitted to be issued at the Club, the Company will establish the required membership contribution and the manner of payment of the membership contribution for all Equity Memberships. In addition, the membership contribution for resigned Equity Memberships, which are available for reissuance by the Club because of the resignation of an Equity Membership, shall be equal to the membership contribution then currently established by the Company for a previously unissued Equity Membership. After the initial sale of all Equity Memberships permitted to be issued at the Club, the Board of Directors of the Club will establish the required membership contribution and the manner of payment of the membership contribution for all Equity Memberships. The failure to pay all amounts of the membership contribution when due will be cause for suspension of the privileges of membership at the Club without refund of any membership contribution or any other dues, fees, dining minimums, assessments and other charges previously paid. -19- 7. Voting Equity Membership allows the member to vote on all matters to be voted upon by the Equity Members of the Club. However, Equity Members will not be permitted to vote on any Club matters until immediately prior to the Turnover Date unless otherwise specifically provided in the Plan Documents (as defined in the Subscription Agreement). Unless otherwise specifically provided herein, Full Membership is entitled to four (4) votes per membership, Sports Membership is entitled to two (2) votes per membership and Social Membership is entitled to one (1) vote per membership. However, only those Equity Members who are current on all dues, fees, dining minimums, assessments, charges and other obligations to the Club and the Company and are in good standing on the record date shall have any voting privileges. 8. Application For Membership (a) All applicants acquiring a Full Membership or Sports Membership being initially sold by the Company must be approved by the Company. All applicants acquiring a resigned Full Membership or Sports Membership being reissued by the Club must be approved by the Club. (b) An initial purchaser of a residence or homesite in Frenchman's Reserve from the Company and/or its affiliates who does not desire to upgrade to a Full Membership or Sports Membership must submit to the Director of Membership at Frenchman's Reserve Country Club a fully completed and signed Social Member Information Profile and the required membership contribution then due and those persons who desire to acquire a Full Membership or Sports Membership must submit to the Director of Membership at the Club a fully completed and signed Application for Equity Membership and the required membership contribution then due. The Application for Equity Membership must be completed in full and must be accompanied by the membership contribution then due as set forth in the Application for Equity Membership. Upon receipt of the Application for Equity Membership and the applicable membership contribution, a determination will be made whether the applicant has satisfied the relevant conditions of membership. All applicants will be evaluated on the basis of their interest in Frenchman's Reserve Country Club, their financial responsibility, and their compatibility with other members at the Club. (c) If approved for membership at the Club, the member agrees to be bound by the terms and conditions of these By-Laws and the Plan Documents, as amended from time to time and irrevocably agrees to fully substitute the membership privileges acquired pursuant to the Plan Documents for any present or prior rights in or to use the Club Facilities. 9. Membership Certificates (a) Every Equity Member who has paid the required membership contribution in full shall receive a membership certificate. Each membership certificate shall be in a form approved by the Board of Directors and shall be subscribed by the President and Secretary and under the seal of the Club. (b) Membership certificates are not redeemable or transferable except as specifically provided by these By-Laws and then only through the Treasurer of the Club. Whenever any person shall cease to be an Equity Member, whether by death, resignation, recall, expulsion or other provisions of these By-Laws, such cessation shall operate to authorize the Treasurer of the Club to effectuate the redemption, cancellation or transfer of the Equity Membership in accordance with and in the manner prescribed by these By-Laws. -20- 10. Resignation-Transferability Of Memberships (a) Equity Memberships are not transferable or assignable except as provided in this Section 10 or Section 11 hereof. Equity Members may not sell, transfer or otherwise assign their memberships except to the Club. Equity Memberships held by those persons who own a residence or homesite in Frenchman's Reserve shall automatically be resigned once such member no longer owns a residence or homesite in Frenchman's Reserve. (b) Full Members and Sports Members who desire to resign their membership privileges must give the Club written notice of their intention to resign membership privileges. The resignation of membership privileges must be on a form provided by the Club, which may be obtained from the Membership Office, and should be submitted to the Director of Membership. Memberships that have been resigned will only be reissued by the Club in accordance with the procedures set forth in the Plan Documents. Any attempt to transfer or reassign a membership at Frenchman's Reserve Country Club, either voluntarily, involuntarily or by operation of law, which is not in accordance with the Plan Documents shall be null and void and no person or entity may obtain a membership except as provided therein. A Full Member or Sports Member who owns a residence or homesite in Frenchman's Reserve may resign their Full Membership or Sports Membership and receive a partial refund as further described below, provided however, that such owner must always remain at least a Social Member at Frenchman's Reserve Country Club and pay all of the required dues, fees, dining minimums, assessments and other charges associated with the Social Membership until the closing of the sale or other transfer of their residence or homesite in Frenchman's Reserve to another owner. (c) Social Members who own a residence or homesite in Frenchman's Reserve may not resign or otherwise terminate their Social Membership and are required to maintain the Social Membership in good standing at all times and to pay to the Club all required dues, fees, dining minimums, assessments and other charges associated with the Social Membership until the closing of the sale or other transfer of the member's residence or homesite in Frenchman's Reserve to another owner. Therefore, Social Memberships at the Club are not transferable and terminate upon the closing of the sale or other transfer of the residence or homesite in Frenchman's Reserve to another owner or on such earlier date as otherwise set forth in the Plan Documents. (d) The Club shall maintain two resigned membership lists. One resigned membership list will be maintained for resigned Full Memberships and the other resigned membership list will be maintained for resigned Sports Memberships. Upon the resignation of membership privileges, the resigned Full Membership or Sports Membership will be placed on the appropriate resigned membership list in the order of resignation on a first-come, first-served basis. In order to be placed on a resigned membership list, the resigned member must have paid the required membership contribution and all dues, fees, dining minimums, assessments and other charges in full. Resigned members who have been placed on a resigned membership list must continue to pay the required dues, fees, dining minimums, assessments and other charges as they become due and failure to do so may result in being removed from the resigned membership list or suspension of the privileges of membership. Once placed on the resigned membership list, the resigned member will not be permitted to rescind the resignation of membership privileges and the resigned membership must be reissued by the Club at the time the membership has rotated to the top of the resigned membership list as described below. -21- (e) Until the initial issuance of all of the Full Memberships permitted to be issued at Frenchman's Reserve Country Club, every fourth Full Membership issued will be the first resigned Full Membership on the resigned membership list maintained by the Club for Full Memberships, provided a resigned Full Membership is on the resigned membership list at that time. The other three Full Memberships issued will be issued from the unissued Full Memberships. After the initial issuance of all of the Full Memberships permitted to be issued at Frenchman's Reserve Country Club, then every Full Membership issued will be the next resigned Full Membership on the resigned membership list maintained by the Club for Full Memberships. (f) Until the initial issuance of all of the Sports Memberships permitted to be issued at Frenchman's Reserve Country Club, every fourth Sports Membership issued will be the first resigned Sports Membership on the resigned membership list maintained by the Club for Sports Memberships, provided a resigned Sports Membership is on the resigned membership list at that time. The other three Sports Memberships issued will be issued from the unissued Sports Memberships. If the Company and the Club are not offering Sports Memberships for initial issuance, then every Sports Membership issued will be the next resigned Sports Membership on the resigned membership list maintained by the Club for Sports Memberships. (g) As an exception to the general rule for the reissuance of Full Memberships and Sports Memberships described above, Full Members and Sports Members who own a residence or homesite in Frenchman's Reserve shall have the opportunity for the thirty-day period immediately following the closing of the sale of their residence or homesite in Frenchman's Reserve to arrange for the Club to reissue their membership to the purchaser of their residence or homesite in Frenchman's Reserve. Full Members and Sports Members shall have this opportunity even though all of the memberships in their classification of Equity Membership have not been issued and even though a resigned membership list for their classification of membership or a waiting list of persons desiring to obtain their classification of membership has been established. In order for the subsequent purchaser of the residence or homesite in Frenchman's Reserve to be eligible to apply for the resigned member's Full Membership or Sports Membership, the resigned member must have paid the membership contribution and all of the dues, fees, dining minimums, assessments and other charges in full at the time of transfer. The purchaser of the resigned member's residence or homesite in Frenchman's Reserve must submit an Application for Equity Membership, be approved for membership and pay the membership contribution charged at that time. The reissuance of a Full Membership or Sports Membership to a subsequent purchaser of a resigned member's residence or homesite in Frenchman's Reserve, as described herein, is excluded from and is not included in determining when every fourth membership or every membership has been issued. Since property owners in Frenchman's Reserve must acquire at least a Social Membership, the Club will reissue a Social Member's membership to the subsequent owner of their property upon approval and payment of the required membership contribution charged at that time. -22- If a Full Member or Sports Member resigns from the Club and is not selling his or her residence or homesite in Frenchman's Reserve or does not arrange for the purchaser of his or her residence or homesite in Frenchman's Reserve to acquire his or her Full Membership or Sports Membership, then the membership shall be placed on the appropriate resigned membership list described above for reissuance by the Club and there is no guarantee that the Club will reissue the membership or that the resigned member will be able to recover any portion of the membership contribution paid for their membership. (h) The Club shall refund to the Equity Member a pro-rata portion of any unused dues, fees, dining minimums and other charges paid in advance beginning with the first full month after the Equity Membership is reissued by the Club to a new member. (i) Equity Members may take their memberships with them to another residence or homesite they own in Frenchman's Reserve. If a member wants to take the Equity Membership to a residence or homesite which is being sold by a Full Member or Sports Member, the prior written approval of both members to the transfer must be delivered to the Club on such forms as may be provided by the Club from time to time. (j) Upon the reissuance of a resigned member's Full Membership or Sports Membership (excluding the transfer of a membership to a surviving spouse or an heir upon the death of an Equity Member or the transfer of a membership to a spouse upon the legal separation or divorce of a member), the Club shall pay to the resigned Full Member or Sports Member a transfer payment equal to one hundred percent of the actual membership contribution previously paid to the Company or the Club by the resigned member for their classification of Equity Membership, without interest. The transfer payment shall be paid to the resigned member within thirty days after the resigned member's membership is reissued by the Club to a successor member who has been approved for membership and paid the required membership contribution in full to the Club and the resigned member has surrendered their membership certificate to the Club. However, if the Full Member or Sports Member owns a residence or homesite in Frenchman's Reserve and is simply resigning their Full Membership or Sports Membership and not selling their residence or homesite in Frenchman's Reserve, then the transfer payment paid to such resigned Full Member or Sports Member shall be reduced by the amount of the membership contribution charged for a Social Membership at the time the resigned member originally acquired their Full Membership or Sports Membership. This reduction in the amount of the transfer payment is necessary since all property owners in Frenchman's Reserve must maintain at least a Social Membership at all times. In this event, such Social Member shall receive another refund from the Club in the amount and in the manner described in the next paragraph upon the subsequent sale or other transfer of their residence or homesite in Frenchman's Reserve to a new owner. A Social Member, who owns a residence or homesite in Frenchman's Reserve, shall be paid a transfer payment by the Club equal to one hundred percent of the actual membership contribution previously paid to the Company or the Club by the member for the Social Membership, without interest. This transfer payment shall be paid to the Social Member within thirty days after the Social Membership is reissued by the Club to the subsequent owner of the member's residence or homesite in Frenchman's Reserve who has paid the required membership contribution in full to the Club. However, no transfer payment will be paid upon the continuation of a Social Membership by the surviving spouse or an heir upon the death of a Social Member or the transfer of a Social Membership to a spouse upon the legal separation or divorce of a Social Member. -23- (k) In order for a resigned Equity Member to be paid the transfer payment described above, the required membership contribution and all dues, fees, dining minimums, assessments and other charges must be paid in full. The Club will deduct from the amount to be paid to a resigned member any amount that the resigned member owes to the Company or to the Club. (l) The difference between the membership contribution paid by a new member and the transfer payment paid to a resigned member shall be paid to the Company if the resigned membership is reissued prior to the Turnover Date and shall be retained by the Club if the resigned membership is reissued after the Turnover Date. (m) The Company reserves the right to change the amount of the transfer payment and the terms of payment of the transfer payment for unissued memberships in the Club, including resigned memberships reissued by the Club. Any such change will not affect, in any way, the rights of members of the Club who have obtained a membership prior to the time the change takes effect. The Club shall have this right after the initial issuance of all of the Equity Memberships permitted to be issued at the Club. (n) The Club is not obligated to reissue a resigned Equity Membership or repay any portion of membership contribution under any circumstances other than those described above. However, the Club may repay a member's membership contribution or any portion thereof in such hardship situations deemed appropriate by the Club, in its discretion. (o) Full Members and Sports Members who have resigned membership privileges shall be obligated to continue to pay dues, dining minimums, assessments and other charges associated with their resigned membership until their membership is reissued by the Club. Social Members who own a residence or homesite in Frenchman's Reserve must continue to pay the required dues, fees, dining minimums, assessments and other charges associated with their Social Membership until the sale or transfer of their residence or homesite to another owner. A resigned member may use the Club Facilities until their membership is reissued by the Club as long as the required dues, fees, dining minimums, assessments and other charges continue to be paid. 11. Transfer Upon Death Or Divorce (a) Upon the death of an Equity Member who owns a residence or homesite in Frenchman's Reserve, the membership will automatically pass to the member's surviving spouse, if any, provided the surviving spouse is the owner of the residence or homesite in Frenchman's Reserve, without the payment of any additional membership contribution. If a deceased member is not survived by a spouse or the surviving spouse is not the owner of the deceased member's residence or homesite in Frenchman's Reserve, then the heir of the deceased member's residence or homesite in Frenchman's Reserve may continue with the deceased member's membership without the payment of any additional membership contribution, subject only to the approval of the Club and the payment by the heir of all outstanding amounts owed to the Club (including all dues, fees, dining minimums, assessments and other charges associated with the deceased member's membership for the intervening time between the date of the member's death and the date of the application by the heir). The continuation of a deceased member's membership by a surviving spouse or an heir of the deceased member's residence or homesite does not require a transfer payment by the Club and the opportunity to be paid the transfer payment upon the subsequent reissuance of the deceased member's membership by the Club as further described herein shall be transferred to the surviving spouse or heir that continues with the membership. -24- Upon the death of a member at Frenchman's Reserve Country Club who does not own a residence or homesite in Frenchman's Reserve, the membership privileges shall be transferred to the member's surviving spouse, without the payment of any additional membership contribution. If the deceased member is not survived by a spouse or the surviving spouse does not desire to continue membership privileges, then the membership of the deceased member shall be resigned and placed on the appropriate resigned membership list and reissued by the Club on the same basis as any other resigned membership. In this event, the obligation to pay dues, fees, dining minimums, assessments and other charges associated with the deceased member's membership shall terminate upon the death of the member. (b) In the event an Equity Member is legally separated or divorced, title to the membership, including all rights and benefits given to the holder thereof, shall continue and vest in the spouse awarded the residence or homesite in Frenchman's Reserve. In the event the Equity Member does not own a residence or homesite in Frenchman's Reserve, then title to the membership, including all rights and benefits given to the holder thereof, shall continue and vest in the spouse awarded the membership in a written separation agreement or final divorce decree. Until written notice has been provided to the Club, each spouse shall be jointly and severally responsible for the payment of all dues, fees, dining minimums, assessments and other charges associated with such membership. The Club will not be involved in any dispute and reserves the right to suspend all membership privileges in the event of disagreement over which spouse retains the membership privileges. The Club shall not pay any transfer payment upon the legal separation or divorce of a member. 12. Privileges Of Tenants Equity Members have the opportunity to designate tenants who lease their residence in Frenchman's Reserve with a lease term of at least ninety (90) days as the beneficial user of their membership privileges in the Club. This opportunity is subject to the Rules and Regulations established by the Club from time to time, including the limitation that a member may not designate more than two tenants as the beneficial user of their membership during any membership year. The tenant must submit an application and be approved prior to use of any of the Club Facilities. Applications submitted by tenants shall be evaluated on the same basis as any other application submitted by a member who does not own a residence or homesite in Frenchman's Reserve. A tenant who is designated as the beneficial user of the member's membership is allowed, upon payment of all required use charges and fees (including but not limited to, green fees, golf cart fees, tennis court fees and other personal charges incurred at the Club) to the same privileges to use the Club Facilities as the lessor member. In addition, the member who owns the residence in Frenchman's Reserve and the tenant must comply with all requirements of the Frenchman's Creek Master Property Owners Association, Inc. and the Declaration of Restrictions and Covenants for Frenchman's Reserve. -25- During the time a member has designated the tenant of his or her residence in Frenchman's Reserve as the beneficial user of their membership privileges, the member shall have no privileges to use the Club Facilities by virtue of the membership at the Club, except the dining facilities provided at the Club Facilities. The member shall continue to pay the required dues, fees, dining minimums, assessments and other charges associated with his or her membership. Members are responsible for all charges incurred by their tenant which remain unpaid after the customary billing and collection procedure of the Club and for the deportment of each tenant. The Club reserves the right to establish other rules relating to use of the Club Facilities by tenants from time to time. ARTICLE XI OTHER MEMBERSHIP/ LICENSE PRIVILEGES 1. Invitational Licenses The Club may issue recallable non-equity, non-transferable annual or seasonal licenses known as "Invitational Licenses." The privileges of Invitational License holders will be established by the Board of Directors of the Club from time to time and will be described in a separate Invitational License Plan or Application for Annual License. Invitational License holders are not entitled to vote on any Club matters and do not have any equity or ownership interest in the Club or the Club Facilities. Initially, the Club will offer a limited number of Invitational Golf Licenses on an annual basis and possibly on a seasonal basis. However, the maximum number of Invitational Annual Golf Licenses at the Club shall be the difference between three hundred forty-nine (349) and the actual number of dues-paying Full Memberships issued at Frenchman's Reserve Country Club on the first day of each membership year. 2. Use Of Other Club Facilities The Company and the Club reserve the right, but have no obligation, to enter into reciprocal use arrangements with other clubs, including but not limited to, other clubs owned, controlled or managed by the Company, the Club or their affiliates, which would allow members at Frenchman's Reserve Country Club to use the facilities at other clubs and the members at other clubs to use the facilities provided at Frenchman's Reserve Country Club. The terms of such use and the fees to be paid for the reciprocal use privileges will be established by the Company or the Club from time to time. The reciprocal use privileges may extend and continue after the Turnover Date and may be terminated at any time in the discretion of the Company. -26- 3. Honorary Memberships A limited number of Honorary Memberships may be issued to persons designated by the Club or the Company from time to time. These memberships are in addition to all other memberships to be issued at Frenchman's Reserve Country Club and shall be available on terms and conditions and allow such privileges as shall be established by the Club and the Company. Honorary Memberships may be changed at any time by either the Club or the Company (depending on which entity designated the user as an Honorary Member initially) and a new user designated to use the membership privileges from time to time. However, the Company may designate up to five Honorary Memberships prior to the Turnover Date that shall be permanent lifetime memberships with full privileges for those persons designated by the Company and their immediate families. These five (5) Honorary Memberships shall not pay dues. ARTICLE XII GUEST PRIVILEGES Guests of members may be extended guest privileges subject to applicable guest fees, charges and the Rules and Regulations established from time to time by the Board of Directors. Guest privileges may be denied, withdrawn or revoked at any time for reasons considered sufficient by the Board of Directors. All guests shall be either houseguests or day guests. A houseguest is defined as a guest temporarily residing in a member's residence in Frenchman's Reserve. All other guests of a member shall be considered day guests. Day guests must be accompanied by the member at all times when using the Club Facilities, unless otherwise permitted by the Club from time to time. Day guests will be charged guest fees established by the Board of Directors for their use of the Club Facilities. Houseguests are permitted to use the Club Facilities unaccompanied by the member. In addition to all use fees as established by the Board of Directors, houseguests may be charged a temporary houseguest membership fee for each one week period. ARTICLE XIII DUES, FEES AND CHARGES The Club's membership year will constitute the twelve-month period commencing November l and ending on October 31, unless otherwise established by the Club. The Board of Directors of the Club will determine the amount of dues, fees, dining minimums and other charges to be paid by each member from time to time. The amount of dues, fees and other charges payable by each member will depend upon the classification of membership selected. Members will also be obligated to pay all applicable sales taxes and/or admission taxes imposed by the State of Florida on dues, fees, dining minimums, assessments and other charges established by the Club. The payment of dues, fees, charges, dining minimums, state taxes, service charges and other personal charges that the Club may establish from time to time is required to obtain and maintain membership privileges at Frenchmen's Reserve Country Club and is not considered either an operating assessment or capital assessment. The dues may be established at any level deemed appropriate by the Board of Directors of the Club, provided however, that the dues charged to Social Members and that portion of the dues charged to Full Members and Sports Members attributed to the social component of their membership shall not exceed each member's prorata share of all operating expenses incurred (whether direct, indirect or apportioned by the Club) in connection with the normal course of conducting and operating all of the Club Facilities and all of the services, except those relating directly to the eighteen-hole golf course, golf practice facilities and tennis facilities, provided at the Club, including, but not limited to, salaries, wages, employee benefits and payroll expenses (including payroll taxes, profit sharing arrangements and insurance), marketing, advertising and promotional expenses, housekeeping, laundry, cleaning and rental charges for uniforms and linen, replacement of all inventories, replacement of broken, damaged or lost silver, chinaware, glassware, cooking utensils and other similar items, office supplies, postage, printing, routine office expenses and accounting services, costs of entertainment including vocalists, bands, etc., insurance premiums and property taxes, auditing, accounting costs, computer fees and legal fees, costs incurred for utilities, including all electric, gas and water costs, lease payments on any items of furniture, fixtures and equipment and all other such expenses. -27- The Club is also obligated to pay assessments to the Frenchman's Creek Master Property Owners Association, Inc. pursuant to the Declaration of Master Covenants for Frenchman's Reserve Country Club recorded in the Public Records of Palm Beach County. The obligation to pay dues is not dependent on the availability of all the facilities or the frequency of use. Repair and maintenance of the facilities and/or other occurrences may make it necessary for the Club to change hours of use or restrict the use of the facilities or to close certain facilities temporarily. The Club will not reduce or suspend dues during the time when the facilities, in whole or in part, are not available. Dues shall be due and payable in advance, on or before the first day of each membership year, unless otherwise established by the Club. The current dues for use of the Club Facilities are set forth on the Schedule of Dues, Fees and Charges. The amount of dues for subsequent years is subject to change. Monthly statements reflecting all fees and charges incurred by the member and all payments received by the Club from the member will be closed on the last day of each month and will normally be mailed to the members of the Club within five (5) days. All statements are due and payable upon receipt and in no event later than the twentieth day of the month in which the statement was mailed. A late charge and/or interest will be added to all outstanding balances in accordance with the Rules and Regulations if the statement is not paid by the twentieth day of the month. In addition, the Club reserves the right to place any member whose account is not paid in full by the twentieth day of the month on a cash-only basis for any or all services and merchandise otherwise provided for credit at any time. The failure of any member of the Club to timely pay all fees and other charges by the twentieth day of the month and the failure to pay dues and all amounts of the membership contribution when due shall constitute grounds for suspension of the privileges of membership at the Club. In the event a person who owns a residence or homesite in Frenchman's Reserve fails to pay the required dues, fees, dining minimums, assessments and other charges, then the Club may suspend the privileges of membership or take any other disciplinary action relating to his or her membership in the Club. Upon suspension of the privileges of a membership held by a person who owns a residence or homesite in Frenchman's Reserve, the dues obligation of the Social Membership shall continue to accrue until the closing of the sale or other transfer of such individual's residence or homesite in Frenchman's Reserve to another owner. In the event the privileges of a membership are suspended, the member will no longer have any membership privileges to use the Club Facilities and will not be paid a transfer payment or be entitled to a refund of any portion of the membership contribution previously paid. -28- The Club shall also have the right to file a lien against a Social Member's residence or homesite in Frenchman's Reserve for non-payment of dues, fees, dining minimums, assessments and other charges established by the Club. This security interest may be perfected by filing a UCC financing statement with the appropriate public registries. The lien for unpaid dues, fees, dining minimums, assessments and other charges shall be subordinate to a bona fide first mortgage held by a mortgagee on any residence or homesite in Frenchman's Reserve, if the mortgage is recorded in the Public Records of Palm Beach County prior to the claim of lien by the Club. The claim of lien shall not be affected by any sale or transfer of a residence or homesite, except in the event of a sale or transfer of a residence or homesite pursuant to a foreclosure (or deed in lieu of foreclosure) of a bona fide first mortgage, in which event, the acquirer of title, its successors and assigns, shall not be liable for such sums secured by a claim of lien encumbering the residence or homesite or chargeable to the former owner of the residence or homesite which became due prior to such sale or transfer. Any sale or transfer pursuant to a foreclosure shall not relieve the member from liability for, nor the residence or homesite from the lien of any dues, fees, dining minimums, assessments and other charges made thereafter. Nothing herein shall be construed as releasing the member liable for any delinquent dues, fees, dining minimums, assessments and other charges from the payment thereof, or the enforcement of collection by means other than foreclosure. In the event of a default in the payment of any dues, fees, dining minimums, assessments and other charges, the Club may accelerate the dues, fees, dining minimums, assessments and other charges for the next ensuing twelve-month period, and for twelve months from each subsequent delinquency. The Club may, at any time, bring an action at law against the member personally obligated to pay the dues, fees, dining minimums, assessments and other charges, and/or foreclose the lien against the residence or homesite in Frenchman's Reserve, or both. There shall be added to the claim of lien all costs expended in preserving the priority of the lien and all costs and expenses of collection, including attorneys' fees and paraprofessional fees, at all levels of proceedings, including appeals, collection and bankruptcy. The Club shall have all of the remedies provided herein and in the Rules and Regulations and any others provided by law and such remedies shall be collective and the bringing of an action shall not constitute an election or exclude the bringing of any other action. Liens for unpaid dues, fees, dining minimums, assessments and other charges shall be prior to the liens of the Frenchman's Creek Master Property Owners Association, Inc. Each member shall be legally and financially responsible for his or her acts or omissions as well as those of the member's immediate family, guests and tenants. Full Members, Sports Members and Social Members who do not desire to use their membership privileges during any particular membership year may arrange through the Club for the exchange of their membership privileges with those of another member of the Club upon obtaining the approval of the Club, the payment of an exchange fee charged from time to time by the Club and the exchanging members' payment of their respective dues. The right to exchange membership privileges shall be on a membership year basis and shall not affect the exchanging members' rights to their underlying memberships or obligations for such memberships. Members shall be responsible for payment of all fees, dining minimums, assessments and other charges, except dues, based on the classification of their underlying membership. -29- ARTICLE XIV DELINQUENCIES 1. Statement An itemized statement of any dues, fees, dining minimums, assessments and other charges shall be mailed monthly to each member. Any member failing to pay his or her indebtedness to the Club by the twentieth day of the month shall be subject to action as is determined appropriate by the Board of Directors. The failure of any member to pay dues within the prescribed period shall constitute grounds for suspension of the privileges of his or her membership. 2. Liens No member shall be permitted to create, incur, assume or suffer to exist upon the member's membership any liens or security interests whatsoever except to the extent the lien or security interest represents a purchase money lien and security interest incurred as a result of acquiring the membership and is approved in advance by the Club. In the event of foreclosure of the purchase money lien or security interest incurred as a result of acquiring the membership, the party foreclosing on the membership must give the Club written notice of the pending foreclosure, and the Club shall have the right to repurchase the membership before the foreclosure on the same basis as if the member had resigned membership privileges in the Club. ARTICLE XV DISCIPLINE Any member, immediate family member or guest of the member whose conduct shall be deemed by the appropriate committee to be improper or likely to endanger the welfare, safety, harmony or good reputation of the Club or its members, may be reprimanded, fined or suspended from the Club by action of the Board of Directors. The Board of Directors shall be the sole judge of what constitutes improper conduct or conduct likely to endanger the welfare, safety, harmony or good reputation of the Club or its members. 1. Board Action A member shall be notified of any proposed disciplinary action and shall be given an opportunity to be heard by the Board of Directors to show cause why the member should not be disciplined in accordance with this Article. If the member desires to be heard, the member must provide a written request for a hearing to the General Manager within seven (7) days after the date of the Club's notice to the member of the proposed action. Upon receipt of the written request for a hearing, the Board of Directors shall set a time and date for such hearing, which shall in no event be less than five (5) days after such request. Depending on the severity of the violation in the discretion of the Board of Directors, the membership/use privileges of the offending member, designee or immediate family member may be suspended pending a final resolution. -30- 2. Suspension The Board of Directors may suspend a member and/or any immediate family member or guest of the member from some or all of the privileges of the Club for a period of up to one (1) year if the appropriate committee of the Club and the Board of Directors determine that the member's conduct was improper or likely to endanger the welfare, safety, harmony or good reputation of the Club or its members. Dues and other obligations shall accrue during such suspension and must be paid in full when due. 3. Resignation-Request By Board Of Directors The Board of Directors may, by a two-thirds (2/3) vote of the Directors present, request the resignation of any member of the Club for cause deemed sufficient by the Board of Directors. ARTICLE XVI CORPORATE SEAL The Corporate Seal of the Club shall be circular in form and shall have inscribed thereon the name of the corporation and the words "seal", "Florida", "Not-For-Profit Corporation" and the year of incorporation. The corporate seal shall be in the possession of the Secretary of the Club and be affixed by the Secretary to all documents relating to the official acts of the Club, as authorized by the Board of Directors. ARTICLE XVII MISCELLANEOUS 1. Fiscal Year The fiscal year of the Club shall commence on the first day of November and conclude on the last day of October. 2. Assessments There will be no assessments for operating deficits prior to the Turnover Date. The term "operating deficits" shall mean that amount by which all operating cash expenses incurred by the Club (whether direct, indirect or apportioned) in connection with the normal course of conducting and operating all of the Club Facilities and providing all of the services at the Club determined in accordance with generally accepted accounting principles, applied consistently from year to year (excluding depreciation expense and amortization expense) shall exceed all cash revenue received by the Club including all interest earned (excluding all membership contributions received from the issuance of memberships) determined in accordance with generally accepted accounting principles, applied consistently from year to year. However, the Board of Directors of the Club may find it necessary to make assessments, in addition to dues, to cover any operating deficits that occur after the Turnover Date. Any assessments imposed by the Board of Directors of the Club after the Turnover Date to cover operating deficits shall be prorated among all outstanding dues-paying Equity Memberships based on the annual dues charged to each such Equity Member during the year in which the operating deficit occurs. -31- Prior to the Turnover Date, there will be no assessments for capital expenditures to the Club Facilities unless such capital assessment is approved by the Company, a majority of the members of the Board of Directors of the Club, a majority of the members of the Advisory Board of Governors and sixty percent (60%) of all of the members in each classification of Equity Membership that would be required to pay such capital assessment. After the Turnover Date, there will be no assessments for capital expenditures to the Club Facilities unless such capital assessment is approved by a majority of the members of the Board of Directors of the Club and sixty percent (60%) of all of the members in each classification of Equity Membership that would be required to pay such capital assessment. All proposed assessments for capital expenditures to the golf facilities or tennis facilities shall be paid equally by all Full Members and Sports Members. Social Members shall not pay any assessment for capital expenditures to the golf and tennis facilities provided at the Club. All other assessments for capital expenditures shall be paid equally by all Equity Members. The Club will make no capital or operating assessment nor charge any dues, fees, dining minimums, assessments or other charges on any Equity Membership during the period while the Equity Membership is held for sale by the Company, including but not limited to, those resigned Equity Memberships which the Company purchases from the Club. Invitational Licenses will not be assessed for capital assessments or operating assessments. Failure to pay any assessment shall subject an Equity Member to the same penalties as failure to pay any other indebtedness to the Club. 3. Conflict Between By-Laws And Articles Of Incorporation In the event of conflict between the terms of these By-Laws and Articles of Incorporation, the Articles of Incorporation shall prevail. 4. Dissolution Of Club In the event of dissolution or final liquidation of the Club after the Turnover Date, all of the property and assets of the Club, after payment of its debts, shall be distributed, as permitted by applicable Florida law and a court having jurisdiction, among the holders of the outstanding dues-paying Equity Memberships of the Club in proportion to the value of their Equity Memberships as fixed by the Club at that time. 5. Indemnification By The Club The Club shall indemnify and hold harmless each person who shall serve at any time hereafter as a member of the Board of Directors, the Advisory Board of Governors or as an officer of the Club from and against any and all claims and liabilities to which such person shall become subject by reason of his or her having been, or hereafter being, a member of the Board of Directors, the Advisory Board of Governors or an officer of the Club, or by reason of any action alleged to have been taken or omitted by him or her as such member of the Board of Directors, the Advisory Board of Governors or officer of the Club, and shall reimburse each such person for all legal and other expenses reasonably incurred by him or her in connection with any such claim or liability to the fullest extent permitted by applicable Florida law. However, no such person shall be indemnified against, or be reimbursed for, any expense incurred in connection with any claim or liability arising out of his or her willful misconduct. -32- ARTICLE XVIII AMENDMENTS 1. By Board Of Directors Prior to the Turnover Date, these By-Laws may be amended by a majority of all of the members of the Board of Directors of the Club, provided that the amendment or alteration is approved by the Company and is set forth in the notice of the meeting at which the matter is to be acted upon and provided that the amendment is not materially adverse to the rights of the Equity Members of the Club, in the discretion of the Company. A majority of the votes associated with the outstanding Equity Memberships that would be affected by the proposed amendment must approve any amendment to these By-Laws prior to the Turnover Date which is materially adverse to the rights of the Equity Members. 2. By Equity Members Subject to the restrictions set forth in Section 3 below, these By-Laws may be altered, amended, or repealed or new By-Laws may be adopted except as otherwise provided herein, only by: (a) a majority vote of all of the members of the Board of Directors, and (b) a majority of the votes cast by the Equity Members in person or by proxy at any duly called and constituted annual or special meeting of the Equity Members of the Club at which a quorum of the Equity Members is present either in person or by proxy. The proposed amendment must be set forth in the notice of the meeting. 3. Restrictions On Amendments Prior to the initial sale of all Equity Memberships permitted to be issued at the Club, neither the Club nor the Equity Members may change, modify or delete the provisions of these By-Laws and the Plan Documents without the prior written consent of the Company. After the initial issuance of all Equity Memberships permitted to be issued at the Club, the following provisions may only be changed, modified or deleted if such change is approved by a majority of all of the members of the Board of Directors of the Club and seventy-five percent (75%) of all of the members in each classification of Equity Membership that would be affected by such change or modification: (a) the total number of Equity Memberships or the number of members allowed in any particular classification of membership as described in the Plan Documents as of the Turnover Date, (b) the restrictions or limitations on assessments on Equity Members as described in the Plan Documents as of the Turnover Date, (c) the eligibility to acquire an Equity Membership as described in the Plan Documents as of the Turnover Date, (d) the rights of tenants to use the Club Facilities as described in the Plan Documents as of the Turnover Date, and (e) this Section 3, Article XVIII of the By-Laws of the Club as of the Turnover Date. EX-3.84 80 ex3-84.txt EXHIBIT 3.84 Exhibit 3.84 AMENDED AND RESTATED ARTICLES OF INCORPORATION OF MIZNER COUNTRY CLUB, INC. (A Not-For-Profit Corporation) Pursuant to Section 617.1007 of the Florida Statutes, Mizner Country Club, Inc., a Florida not-for-profit corporation (the "Corporation"), certifies that: FIRST: The name of the corporation is MIZNER COUNTRY CLUB, INC. The original Articles of Incorporation were filed with the Secretary of State of the State of Florida on November 12, 1997. SECOND: There are no members of the Corporation. The Board of Directors of the Corporation duly adopted the following Amended and Restated Articles of Incorporation by Unanimous Written Consent dated January 31, 2000. THIRD: The Articles of Incorporation of the Corporation are amended and restated to read in their entirety as follows: ARTICLE I NAME OF CORPORATION The name of the corporation is Mizner County Club, Inc. (hereinafter referred to as the "Club"). Its principal office is located at 16450 One Mile (Lyons) Road, Delray Beach, Florida 33446 or at such other place as may be designated, from time to time, by the Board of Directors. ARTICLE II DURATION The period of duration of the Club is perpetual. ARTICLE III PURPOSE AND POWERS The sole purpose of the Club is to own and operate a private golf, tennis, swimming and social club for the social, pleasure, recreation and other nonprofitable purposes of its members, immediate family members, guests and other users permitted from time to time. The Club is organized exclusively for social, pleasure, recreation and other nonprofitable purposes. The Club shall be empowered to acquire, rent, lease, let, hold, own, buy, convey, mortgage, bond, sell or assign property, real, personal or mixed, and to borrow money, whether secured or unsecured, and to do and perform all such other acts and things and engage in any lawful act or activity as may be allowed by the laws of the State of Florida with respect to not-for-profit corporations, as those laws now exist or as they may hereafter provide and to have and exercise all powers necessary or convenient to effect any or all of the purposes for which the Club is organized. ARTICLE IV PROHIBITION AGAINST DISTRIBUTION OF INCOME The Club is one which does not permit pecuniary gain or profit. After the date of the transfer of the management and control of the Club to the members of the Club, as set forth in the agreement referred to in Article IX below, no part of any net earnings of the Club shall inure to the benefit of any member of the Club, member of the Board of Directors, officer of the Club, any private shareholder or any other private individual, and as such they will have no interest in or title to any of the property or assets of the Club. Nothing herein shall prohibit the Club from reimbursing the members of the Board of Directors and officers of the Club for all expenses reasonably incurred in performing services rendered to the Club. ARTICLE V CAPITAL STOCK The Club shall have no capital stock and shall be composed of members rather than shareholders as further described in the By-Laws of the Club. ARTICLE VI QUALIFICATIONS OF MEMBERSHIP The classifications, qualifications, characteristics, rights, privileges, limitations and obligations of membership and the manner of admission shall be as set forth in and regulated by the By-Laws of the Club. ARTICLE VII VOTING RIGHTS Members of the Club shall have such voting rights as are set forth in the By-Laws of the Club. ARTICLE VIII LIABILITY FOR DEBTS Members of the Club, members of the Board of Directors and officers of the Club shall not be liable for the debts of the Club. ARTICLE IX BOARD OF DIRECTORS Until the date of the transfer of management and control of the Club to the members of the Club, as provided inn that certain subscription agreement between the Club and TBI/Palm Beach Limited Partnership, a Florida limited partnership (the "Company"), the Company or any designee of the Company shall designate all members of the Board of Directors. After the date of the transfer of management and control of the Club to the members of the Club as provided above, the members of the Club shall be entitled to elect the members of the Board of Directors as provided in the By-Laws of the Club. -2- ARTICLE X INDEMNIFICATION The Club shall indemnify and hold harmless each person who shall serve at any time hereafter as a member of the Board of Directors or as an officer of the Club from and against any and all claims and liabilities to which such person shall become subject by reason of his or her having been, or hereafter being, a member of the Board of Directors or an officer of the Club, or by reason of any action alleged to have been taken or omitted by hire or her as such member of the Board of Directors or officer of the Club, and shall reimburse each such person for all legal and other expenses reasonably incurred by him or her in connection with any such claim or liability to the fullest extent permitted by applicable Florida law. ARTICLE XI DISSOLUTION In the event of dissolution or final liquidation of the Club, all of the property and assets of the Club, after payment of its debts, shall be distributed, as permitted by applicable Florida law and a court having jurisdiction among the holders of the equity memberships of the Club in proportion to the value of their equity memberships at that time. ARTICLE XII TRANSFER OF MEMBERSHIP A membership may be transferred only through the Club in accordance with the procedure set forth in the By-Laws of the Club. A member who has been expelled from the Club shall surrender his or her membership certificate to the Club in accordance with the procedure set forth in the By-Laws of the Club. ARTICLE XIII REGISTERED OFFICE AND REGISTERED AGENT The street address of the registered office for the Club is 1200 South Pine Island Road, City of Plantation, Florida 33324, and the name of its registered agent at that address is CT Corporation System. IN WITNESS WHEREOF, the President of the Corporation has executed these Amended and Restated Articles of Incorporation this 21st day of January, 2000. Dan Grosswald ------------------------ Dan Grosswald, President -3- EX-3.85 81 ex3-85.txt EXHIBIT 3.85 Exhibit 3.85 MIZNER COUNTRY CLUB BY-LAWS ARTICLE I PURPOSE AND DURATION OF CLUB The nature and purpose of Mizner Country Club, Inc. (hereinafter referred to as the "Club") is to own and operate a private golf, tennis, swimming, exercise and social oriented club for the recreation, pleasure and benefit of its members and their immediate family members and guests. The Club shall offer equity memberships and non-equity memberships pursuant to a membership plan and its exhibits (the "Membership Plan") which may be amended from time to time in accordance with its terms. The period of duration of the Club is perpetual. ARTICLE II CLUB EMBLEM The emblem of the Club shall be of a style and design to be approved by the Board of Directors. ARTICLE III MEMBERS MEETINGS 1. Annual Meeting An annual meeting of the Equity Members shall be held for the purposes of receiving reports of officers and others, to elect Directors and for such other business as may be properly brought before the meeting. 2. Date And Place Of Annual Meeting The first annual meeting of the Equity Members shall be held within one (1) year after the date of the turnover of management and control of the facilities provided at Mizner Country Club (hereinafter referred to as the "Turnover Date") to the members of the Club by TBI/Palm Beach Limited Partnership, a Florida limited partnership (hereinafter referred to as the "Company") as further described in the Subscription Agreement dated January, 2000 entered into by and between the Club and the Company (hereinafter referred to as the "Subscription Agreement"). Each annual meeting shall be held at the time and place designated by the Board of Directors. 3. Special Meeting Special meetings of the Equity Members may be called by the President, a majority of the members of the Board of Directors or, if after the Turnover Date, by the written request of at least twenty-five percent (25%) of the votes associated with the outstanding Equity Memberships. A request for a special meeting shall be submitted to the President who shall call a special meeting within thirty (30) days of the date of receipt of the request. Notices of any special meeting must contain a statement of the purpose(s) for which the special meeting is called and no other business may be transacted at that meeting. 4. Notices The Secretary shall give at least ten (10) days, but not more than sixty (60) days, prior notice, by mail, prepaid, to all Equity Members, stating the place, day and hour of the meeting, and in the case of a special meeting, the purpose or purposes for which the special meeting is called. Notice of any meeting shall be posted on the official bulletin board at the clubhouse on the date of its mailing to the Equity Members. 5. Quorum The presence, either in person or by proxy, of Equity Members having thirty percent (30%) of the votes then entitled to be voted shall constitute a quorum at any meeting of the Equity Members. 6. Voting Percentage A majority of the votes cast, either in person or by proxy, is necessary for passage of any motion, except as otherwise expressly provided herein. 7. No Action Without Meetings Action may be taken by the Equity Members only at a properly called and noticed annual or special meeting of the Equity Members. Action may not be taken by the written consent of the Equity Members in lieu of such annual or special meeting. 8. Fixing Of Record Date For the purpose of determining the Equity Members entitled to notice of or to vote at any meeting of the Equity Members, or in order to make a determination of the Equity Members for any other proper purpose, the Board of Directors of the Club may fix in advance a date as the record date for any such determination of the Equity Members, such date in any case to be no more than sixty (60) days and not less than ten (10) days, before the date of such meeting. If no record date is fixed for the determination of the Equity Members entitled to notice of, or to vote at, a meeting of the Equity Members, the date on which notice of the meeting is mailed shall be the record date for such determination of the Equity Members. When determination of the Equity Members entitled to vote at any meeting of the Equity Members has been made, such determination shall apply to any adjournment of the meeting. ARTICLE IV BOARD Of DIRECTORS 1. Number And Qualifications The government and administration of the affairs and the property of the Club shall be vested in a Board of Directors. Prior to the Turnover Date, all members of the Board of Directors of the Club shall be designated by the Company. Members of the Board of Directors appointed by the Company prior to the Turnover Date are not required to be members of the Club. Subsequent to the Turnover Date, the Board of Directors shall consist of nine (9) members unless otherwise determined by the Equity Members from time to time. Subsequent to the Turnover Date, all members of the Board of Directors must be Equity Members. -2- Only Equity Members in good standing may be nominated or appear on any ballot as a candidate for election to the Board of Directors of the Club after the Turnover Date. 2. Elections a. There shall be no cumulative voting and no preemptive rights, b. Voting shall either be in person or by proxy. c. The number of candidates necessary to fill the vacancies on the Board of Directors receiving the highest number of votes at the annual meeting of the Equity Members for each designated term shall be declared elected. d. Until the Turnover Date, the Company will designate all the members of the Board of Directors. Subsequent to the Turnover Date, the Equity Members will elect the members of the Board of Directors at the annual meeting of the Equity Members. 3. Term Immediately prior to the Turnover Date, the Club shall call a special meeting of the Equity Members for the purpose of electing nine (9) Equity Members to serve as the Advisory Board of Governors (as hereinafter defined) until the Turnover Date and to serve as the initial Board of Directors of the Club commencing on the Turnover Date. Of the nine Equity Members who become the Board of Directors, the three Equity Members receiving the highest number of votes shall be elected to serve for three years commencing on the Turnover Date, the three Equity Members receiving the next highest number of votes shall be elected to serve for two years commencing on the Turnover Date and the three Equity Members receiving the next highest number of votes shall be elected to serve for one year commencing on the Turnover Date. Each year following the Turnover Date, the Equity Members will elect three (3) Equity Members to the Board of Directors who will serve for a term of three (3) years. ARTICLE V MEETINGS OF BOARD OF DIRECTORS 1. Annual Meeting Each year the Board of Directors shall hold its annual meeting to elect officers and to consider any other matters that may be properly brought before the meeting. After the Turnover Date, the annual meeting of the Board of Directors shall be held within ten (10) days after the annual meeting of the Equity Members. 2. Quorum A majority of all of the members of the Board of Directors shall constitute a quorum at any meeting for the transaction of business. -3- 3. Regular Meetings After the Turnover Date, the Board of Directors shall have a minimum of six (6) regular meetings in each year at such times as the Board of Directors shall determine. Except as otherwise expressly provided herein, a majority of the votes cast at any meeting of the Board of Directors where a quorum is present is necessary for passage of any motion. 4. Special Meetings Special meetings of the Board of Directors may be called by or at the request of the President or any two Directors. The person or persons authorized to call special meetings of the Board of Directors may fix any place as the place for holding any special meeting of the Board of Directors called by them. 5. Notice Notice of any regular or special meeting of the Board of Directors shall be given at least two (2) days previous thereto by written notice to each Director at his or her address as shown by the records of the Club, except that no special meeting of Directors may remove a Director unless written notice of the proposed removal is delivered to all Directors at least twenty (20) days prior to such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail in a sealed envelope so addressed, with postage thereon prepaid. Notice of any special meeting of the Board of Directors may be waived in writing signed by the person or persons entitled to notice either before or after the time of the meeting. The attendance of a Director at any meeting shall constitute a waiver of notice of such meeting, except where a Director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Directors need be specified in the notice or waiver of notice of such meeting, unless specifically required by law or these Bylaws. 6. Telephonic Meetings Members of the Board of Directors may participate in any meeting by means of a conference telephone or similar communications equipment. All persons participating in the meeting must be able to hear each other at the same time. Participation by such means will constitute presence in person at the meeting. ARTICLE VI POWERS OF THE BOARD OF DIRECTORS 1. Management Of The Club The Board of Directors shall exercise all powers of the Club and do all acts and things necessary to carry out the purposes of the Club. 2. Duties And Powers The Board of Directors shall: -4- a. Elect the officers of the Club; b. Appoint committees and assign duties; c. Fill vacancies on the Board of Directors due to death, resignation, inability to perform duties, or otherwise, until the next election of Directors by the Equity Members except for those Directors to be appointed by the Company; d. Appoint managers and other employees and delegate such authority as is considered necessary for the proper operation and management of the Club; e. Adopt, alter, amend or repeal the Rules and Regulations governing use of the Club Facilities by members, immediate family members and their guests; f. Establish the amount of the membership contribution for each classification of membership and its terms of payment, and the amount of dues, fees and other charges, except as otherwise provided in the Subscription Agreement; g. Have the power to replace any Director who shall fail to attend fifty percent (50%) of the regular meetings of the Board of Directors in any one (1) membership year; h. Have the power to expend funds to the extent of the amount in the Club's treasury or owing to the Club; to make contracts with third parties, including, but not limited to, Mizner Country Club Master Association, Inc.; to borrow money and incur indebtedness on behalf of the Club; and, to cause promissory notes, bonds, mortgages, deeds of trust or other evidences of indebtedness to be executed and issued; i. Have the power to exchange privileges to use the Club Facilities with members of other clubs; and j. All such other acts and things as are permitted by the laws of the State of Florida with respect to not-for-profit corporations, as those laws now exist or as they may hereafter provide. 3. Issuance Of Memberships The Board of Directors shall have authority to issue, cancel and transfer memberships and shall have certificates of membership prepared in form and content consistent with the provisions of the Articles of Incorporation and these By-Laws of the Club. 4. Compensation No Director shall receive a salary or any other compensation whatsoever, but shall be entitled to reimbursement for all expenses reasonably incurred in performing any duties pursuant to these By-Laws. 5. Interpretation Of By-Laws The Board of Directors shall have the corporate power to generally do everything permitted by non-for-profit corporations by law, statute, its Articles of Incorporation and these By-Laws, and to determine the interpretation or construction of these By-Laws, or any parts thereof, which may be in conflict or of doubtful meaning, and its decision shall be final and conclusive. -5- 6. Action Without Meetings Any action which may be taken by the Board of Directors, or any committee thereof, may be taken without a meeting if consent in writing setting forth the action taken, signed by all of the Directors entitled to vote, or all of the members of the committee, as the case may be, is filed in the minutes of the proceedings of the Board of Directors or the committee. A consent shall have the effect of a unanimous vote. ARTICLE VII OFFICERS The Board of Directors at each annual meeting shall elect, to serve for a term of one (1) year and until their successors shall be elected, a President, Vice President, Treasurer and Secretary, and such other officers as the Board of Directors may from time to time determine appropriate. The officers shall not be liable for the debts of the Club. ARTICLE VIII DUTIES OF OFFICERS 1. President The President shall preside at all meetings of the Equity Members and the Directors and enforce observance of the provisions of these By-Laws and all Rules and Regulations of the Club. The President may call special meetings of the Board of Directors, shall be an ex-officio member of all committees and is empowered to execute all papers and documents requiring execution in the name of the Club. 2. Vice President The Vice President shall assist the President in his/her duties, and in the absence or disability of the President, the Vice President shall perform and carry out all duties and responsibilities of the President. 3. Secretary The Secretary shall keep, or cause to be kept, records and minutes of all meetings of the Board of Directors and the membership, and the Secretary shall be responsible for giving all required notices of meetings. The Secretary shall have custody of the Seal of the Club and all membership records shall be kept under the Secretary's supervision. 4. Treasurer The Treasurer shall be Chairman of the Finance Committee. The Treasurer shall cause to be collected, held and disbursed, under the direction of the Board of Directors, all monies of the Club, and it shall be the Treasurer's duty to collect monies due the Club from the issuance of memberships, dues, fees and charges of members of the Club, and all amounts due from others. The Treasurer shall keep or cause to be kept, at the Club, regular books of account and all financial records of the Club, and shall prepare budgets and financial statements, when and in the form requested by the Board of Directors. The Treasurer shall deposit or cause to be deposited all monies of the Club in an account or accounts in the Club's name, in the bank or banks designated by the Board of Directors, and shall give a surety bond for faithful performance in the amount directed by the Board of Directors, which surety bond premium shall be paid by the Club. Any other person or persons having access to monies of the Club or its bank accounts shall be similarly bonded. -6- 5. Other Officers The Board of Directors may fill vacancies in any office or new office created at any meeting of the Board of Directors. 6. Duties Of Officers Any officer may be given additional assignments and duties by the Board of Directors. 7. Removal From Office Any officer may be removed from office, with or without cause, by a two-thirds (2/3) vote of the members of the Board of Directors. 8. General Manager A General Manager shall be employed by the Club and his/her salary shall be fixed by the Board of Directors. The General Manager shall be the operating head of all departments. All employees of the Club, except as otherwise specified herein, shall be employed, discharged, or otherwise controlled by the General Manager in keeping with the organizational chart and salary ranges approved by the Board of Directors. The General Manager shall establish all charges for food, beverage and services, in and about the clubhouse, subject to the approval of the Board of Directors. The General Manager is responsible for the proper management of all aspects of the Club's activities so as to assure maximum membership satisfaction; a sound financial operation compatible with the best interests of the members and their guests and Club employees; the maintenance and improvement of the quality of the Club's services; and the security and protection of the Club's assets and facilities. The General Manager reports to the Board of Directors and administers all policies established by the Board of Directors. The General Manager administers and manages all Club operations, except as stated herein, and shall devote his/her time and abilities exclusively to the operations of the Club and its facilities within the framework of the general policy promulgated by the Board of Directors. The duties of the General Manager include the following: (a) Provide the overall administration of the Club pursuant to the policies adopted by the Board of Directors and within the general provisions of these By-Laws, house rules, etc. (b) Responsible for the hiring, terminating and supervising of all Club personnel and establishing specific personnel policies, hourly wages, compensation benefits programs, job descriptions and personnel procedures in coordination with standing committees and broad guidance and general approval of the Board of Directors, and consistent with the rules and By-Laws. Remuneration of salaried employees and independent contractors shall be reviewed normally on an annual basis by an ad hoe committee appointed by the President and chaired by the chairman of the Finance Committee. Recommended changes shall be submitted to the Board of Directors for approval. -7- (c) Coordinate the various activities of the Club and shall achieve the appropriate cooperation and coordination of the various operations and departments of the Club. (d) Communicate with Equity Members, committees, the Board of Directors and the Club personnel as necessary to accomplish the goals and objectives of the Club. (e) Attend meetings of the Board of Directors and the various committees with respect to which he/she shall be designated an ex-officio member. The General Manager shall arrange for proper minutes to be maintained for meetings of the Board of Directors, standing committees and ad hoc committees as appropriate. (f) Although the General Manager may delegate some authority to the Golf Course Superintendent and other sports professionals, the General Manager shall remain responsible for all operations of the Club. (g) The Golf Course Superintendent shall report to the General Manager on all administrative matters including the following: accounting and financial aspects including payroll, purchasing procedure on approved budgeted items, both capital and operational, personnel procedures, acquisitions of necessary licenses and permits, club policy matters; course preparation and care, as well as course layout and all other physical aspects of the golf course and grounds and reporting requirements imposed by various regulatory agencies. The General Manager may delegate to the Golf Course Superintendent responsibility for hiring (and layoff) of his/her crew, salaries and wages as budgeted, and work schedules. (h) The sports professionals shall report to the General Manager on all administrative matters including but not limited to the following: implementation of individual contract provisions, accounting and financial aspects, including payroll, accounting for charges to members billed through the Club, maintenance and repair of Club space and property allotted to their operations and purchasing and procedure on approved budget items, both capital and operations. (i) The General Manager shall use sound fiscal methods in order to achieve the budget objective approved by the Board of Directors in the annual operating budget. The General Manager shall prepare the annual budget in conjunction with appropriate standing committees. (j) The General Manager shall discharge such duties as may be assigned to him by the Board of Directors or the President. ARTICLE IX COMMITTEES 1. Advisory Board Of Governors following: Prior to the Turnover Date, an Advisory Board of Governors will be established to serve as a liaison between management of the Club Facilities and the members at the Club (the "Advisory Board of Governors"). The Company will designate all 'of the members of the Advisory Board of Governors and all of the members of the Advisory Board of Governors must be Equity Members at Mizner Country Club. The Advisory Board of Governors shall have no duty or power to negotiate or otherwise act on behalf of the members and shall serve only in an advisory capacity until the Turnover Date except as expressly provided otherwise. -8- In general, the role and responsibility of the Advisory Board of Governors include the following: o To advise on any modification to the Plan for the Offering of Memberships which is materially adverse to the privileges of the Equity Members, o To advise on the use of the Club Facilities by non-members, o To advise on modifications to the Rules and Regulations, o To advise on questions of conduct, mode of dress and other related disciplinary matters, o To advise on the needs and interests of the membership, o To assist management of the Club Facilities in the establishment of Club committees and the responsibilities of each Club committee, o To advise management of the Club Facilities in the organization of member events and programs at Mizner Country Club, and o To participate in and attend Club events and programs for the membership. Management of the Club Facilities will meet with the Advisory Board of Governors regularly to discuss the operation of the Club Facilities. The members of Mizner Country Club are encouraged to utilize the Advisory Board of Governors by voicing their suggestions and concerns through the Advisory Board of Governors. Not more than sixty (60) days prior to the Turnover Date the members of the Advisory Board of Governors appointed by the Company shall resign, and the Equity Members shall elect nine (9) Equity Members to serve as the Advisory Board of Governors until the Turnover Date. On the Turnover Date, these nine (9) Equity Members shall become the Board of Directors of the Club. The Advisory Board of Governors will terminate on the Turnover Date. 2. Executive Committee The Executive Committee shall consist of the President as Chairman, the Vice President, the Secretary, the Treasurer and, in addition, one (1) member of the Board of Directors. The Executive Committee shall have, to the extent not restricted by law, the powers of the Board of Directors during the interval between meetings of the Board of Directors. A quorum shall be a majority of the members of the Executive Committee. Actions and resolutions of the Executive Committee shall require unanimous approval of the members present. 3. Nominating Committee a. At a meeting of the Board of Directors held not more than ninety (90) days and not less than sixty (60) days prior to the first election of the Board of Directors by the Equity Members and each annual meeting of the Equity Members after the Turnover Date, the Board of Directors shall appoint a Nominating Committee consisting of five (5) Equity Members, three (3) of whom shall be members of the Board of Directors. Members of the Nominating Committee shall serve for a term of one (1) year or until their successors are appointed and qualified. Unless specifically requested by a majority of the Board of Directors, the Nominating Committee shall not nominate candidates to fill any vacancies occurring by reason of death, resignation or otherwise, for any unexpired term. -9- b. The Nominating Committee shall recommend, at least thirty (30) days prior to the Equity Member's annual meeting, the names of the Equity Members selected by a majority vote of the. Nominating Committee to be submitted to the Equity Members at any annual meeting at which an election to the Board of Directors is held. c. Ten percent (10%) or more of the total number of Equity Members entitled to vote who are not members of the Nominating Committee or the Board of Directors may also nominate candidates for the Board of Directors by petition signed by these Equity Members and filed with the Secretary of the Club at least thirty (30) days prior to the Equity Members' annual meeting. The names of these nominees, after having been certified by the Secretary or any other officer that they are qualified for election and have been nominated in accordance with the provisions of these By-Laws, shall be posted on the official bulletin board at the clubhouse and shall be included on any proxy mailing to members of the Club. 4. Standing Committees Each year after the Turnover Date, the President, subject to the approval of the Board of Directors, shall designate the chairman (who shall be a Director) and the members of each of the following committees: Membership, Finance, House, Golf, Tennis, Long-Range Planning, Grievance, and Legal and By-Laws. Prior to the Turnover Date, any of these committees may be organized in the sole discretion of the Board of Directors. a. The Membership Committee shall investigate all applications for membership other than those memberships to be sold by the Company and shall report thereon to the Board of Directors with its recommendation as to approval of each application. The Board of Directors shall make the final determination whether to approve or disapprove an application. b. The Finance Committee shall in general supervise, direct and control all matters pertaining to the Club's finances including, but not limited to, the placing of insurance, the filing of tax returns, the payment of taxes, the preparation of the annual operating budget, the preparation of the current reports for the Board of Directors on the Club's financial condition and the issuance to Equity Members of a condensed quarterly operating statement. The Finance Committee shall have the power, with the approval of the Board of Directors, to direct the General Manager to employ, at the expense of the Club, 'such clerical aid and assistance as may be necessary to handle the accounts. The account books and vouchers shall at all times be open to the inspection of any member of the Board of Directors. c. Each of the following committees, subject to the approval of the Board of Directors, shall formulate programs in coordination with the General Manager and submit them with recommendations to the Board of Directors for approval. The General Manager shall have control of the execution of the programs and recommendations approved by the Board of Directors. Each committee shall act only as a consultant and advisor to the Board of Directors and may not act on behalf of the Club or bind it to any actions. -10- (i) House Committee The House Committee shall advise the Board of Directors on matters concerning the food and beverage operations of the Club, the social activities and entertainment of members, immediate family members and their guests. The House Committee shall advise the Board of Directors on matters concerning the maintenance and repair of all buildings, both interior and exterior, the supervision of all building construction and the maintenance, repair and supervision of all water and electrical lines and the facilities and equipment used in connection therewith, except those directly related to and concerning the maintenance or repair of the golf course. The trees, lawn, garden and shrubbery area of the Club's grounds which are not within the scope of the Golf Committee and the maintenance, repair and construction of wells, water tanks, pumps, fences and parking lots shall come under the jurisdiction of the House Committee. (ii) Golf Committee The Golf Committee shall advise the Board of Directors on matters concerning the employment of a Golf Professional and the scope of the operation of the professional, the promulgation of playing rules for members, immediate family members and their guests, the programming of golfing events for members, immediate family members and their guests and the maintenance of members' handicaps. United States Golf Association rules and regulations shall govern all golf play except where superseded by local rules. The Golf Committee shall also advise the Board of Directors on matters concerning the employment of a Greens Superintendent and the scope of the Greens Superintendent's operations and the maintenance of the golf course, roads, facilities and equipment used in connection therewith. No live trees shall be removed nor shall any alteration be made in the golf course except with the prior approval of the Board of Directors. (iii) Tennis Committee The Tennis Committee shall advise the Board of Directors on matters concerning the possible employment of a Tennis Professional, the scope of operations of the professional, the promulgation of playing rules for members, immediate family members and their guests and the programming of tennis events for members, immediate family members and their guests. The Tennis Committee shall advise the Board of Directors on the condition of, and make recommendations concerning the tennis courts and related equipment and facilities. (iv) Long-Range Planning Committee The Long-Range Planning Committee shall develop a long-range master plan for capital improvements for the Club including replacements and expansions of facilities; to recommend to the Board of Directors a course or courses of action in pursuit of the long-range master plan including assignment of priorities within the plan; and to perform other duties as may be otherwise specified by the Board of Directors. (v) Grievance Committee The Grievance Committee shall consist of five (5) members, three (3) of whom shall be members of the Board of Directors. All written complaints relative to any member's conduct shall be first referred to the Grievance Committee. The Grievance Committee shall perform investigations as it deems necessary and shall present its recommendation to the Board of Directors in executive session. If the Grievance Committee's recommendation of a formal charge is approved by the Board of Directors, the committee shall draft and submit to the Board of Directors a letter of complaint. The Grievance Committee shall have no power of suspension or expulsion, but may have such powers of censure as may be directed by the Board of Directors. -11- (vi) Legal and By-Laws Committee The Legal and By-Laws Committee shall be charged with the publication and interpretation of the Rules and Regulations and any other regulations and By-Laws of the Club and, generally, with all matters of a legal nature pertaining to the Club. 5. Ad Hoc Committees The President, subject to the approval of the Board of Directors, may, from time to time, (i) appoint ad hoc committees, with the powers and composition as the President shall determine, (ii) determine the powers and composition of the committees and the term of committee chairman and members, and (iii) replace committee chairmen or members at any time, without cause. 6. Powers of Committees The several committees shall act only as advisory committees, and the individual members thereof shall have no power or authority. The chairman of each committee may appoint from the members of the committee such sub-committees as he or she deems desirable. All subcommittees shall report directly to the committee as a whole, which shall approve, amend or disapprove the report of the sub-committee. 7. Terms of Committee Chairmen and Committee Members Each committee chairman and each member of a committee shall serve until their replacement is designated as provided in Section 5 of this Article. ARTICLE X EQUITY MEMBERSHIPS 1. Number Of Equity Memberships The Club shall issue three classifications of Equity Membership known as Full Memberships, Sports Memberships and Social Memberships (collectively, the "Equity Memberships"). A person who acquires an Equity Membership is sometimes hereinafter referred to as an "Equity Member". Each Equity Membership represents an equity ownership interest in the Club. Each person who owns a residence or homesite in Mizner must maintain at least a Social Membership at the Club at all times while a residence or homesite in Mizner is owned. The Club reserves the right to issue and make available other classifications of membership, including but not limited to, an exercise-oriented membership. However, if any of these additional classifications of membership have access to the golf facilities, then such access to the golf facilities shall be more restrictive than the access to the golf facilities provided to the Sports Memberships. If additional classifications of membership are made available, the Club will establish the number of memberships available, the use privileges of the additional membership classifications and the fees to be paid for these additional classifications of membership. -12- In order to provide continued enjoyment of the Club Facilities to all members, the maximum number of full Memberships is limited to three hundred eighty-seven (387). In the event the Company or the Club add additional golf facilities to Mizner Country Club, the maximum number of Full Memberships shall be increased by one hundred ninety additional Full Memberships for each additional nine holes of golf. Although there is no limit on the number of Sports Memberships and Social Memberships, either the Company or the Club may limit the number of Sports Memberships and/or Social Memberships from time to time. 2. Eligibility For Equity Membership Full Memberships, Sports Memberships and Social Memberships are being offered to initial retail purchasers of residences or homesites in Mizner who are approved for membership. Equity Memberships may also be offered to persons designated by the Company or the Club who do not own a residence or homesite in Mizner who are approved for membership. Each prospective member must submit an Application for Equity Membership, be approved for membership and pay the required membership contribution prior to obtaining a membership. All property owners in Mizner are required to be at least a Social Member at Mizner Country Club. Each purchaser of a residence or homesite in Mizner must submit an Application for Equity Membership within fifteen (15) days after executing the purchase agreement to purchase a residence or homesite in Mizner. Upon closing on the purchase of a residence or homesite in Mizner, the purchaser must acquire at least a Social Membership at the Club and pay the required membership contribution and maintain at least a Social Membership at the Club at all times while a residence or homesite is owned in Mizner. As a Social Member, the purchaser shall have the privileges described herein and shall pay the dues, assessments and other use fees established by the Club. Furthermore, the purchaser shall not be permitted to resign the Social Membership and shall be required to pay such dues, assessments and other fees associated with the Social Membership until the closing of the sale or other transfer of their residence or homesite in Mizner to another owner. Initial retail purchasers of previously unsold residences or homesites in Mizner will have an opportunity to upgrade to an available Full Membership or Sports Membership for each residence or homesite purchased in Mizner until the closing of the purchase of their residence or homesite in Mizner. Only one Equity Membership may be acquired for each residence or homesite. The number of memberships available in a particular classification of Equity Membership may be limited. The membership contribution to be paid for an Equity Membership will be the membership contribution charged on the date the purchaser submits the Application for Equity Membership and the required membership contribution to the Director of Membership. -13- The Company has retained the absolute right to reserve Full Memberships and Sports Memberships for sale to future initial retail purchasers of residences or homesites in Mizner. The Company may also reserve Equity Memberships for sale to any other party designated by the Company in its sole discretion. Reserved memberships are not considered as available memberships and neither the Company nor the Club may be compelled to issue a reserved membership. Full Memberships and Sports Memberships not acquired by the initial retail purchasers of residences or homesites in Mizner on or before the closing of their purchase shall be reserved by the Company for future sale or offered for sale by the Company as available memberships to any person designated by the Company, including persons who do not own a residence or homesite in Mizner. Initial retail purchasers of residences or homesites in Mizner who do not acquire a Full Membership or Sports Membership on or before the closing of the purchase of their residence or homesite in Mizner, and the subsequent purchasers of residences or homesites from persons who are not Full Members or Sports Members, may upgrade to a Full Membership or Sports Membership through the regular membership upgrade process only if the desired classification of membership is subsequently available and not reserved for sale. Therefore, after the closing on the purchase of a residence or homesite in Mizner, there can be no guarantee or assurance that a Full Membership or Sports Membership will ever subsequently be available and neither the initial retail purchaser nor any subsequent purchaser of the residence or homesite in Mizner will have any continuing opportunity to obtain a Full Membership or Sports Membership. IF AN INITIAL RETAIL PURCHASER OF A RESIDENCE OR HOMESITE IN MIZNER DOES NOT ACQUIRE A FULL MEMBERSHIP OR SPORTS MEMBERSHIP ON OR BEFORE THE CLOSING OF THE PURCHASE OF THEIR RESIDENCE OR HOMESITE IN MIZNER, IT IS HIGHLY UNLIKELY THAT SUCH FULL MEMBERSHIP OR SPORTS MEMBERSHIP WILL BE AVAILABLE AT A LATER DATE. There is no assurance that an Equity Membership in the desired classification will be available at the time of application. If an Equity Membership in the desired classification is not available at the time of application, the Club will maintain a waiting list consisting of applicants desiring to upgrade who have submitted an Application for Equity Membership on a first-come, first-served basis. Persons who own a residence or homesite in Mizner who are on the Club's waiting list for an available membership shall have priority over persons who do not own a residence or homesite in Mizner to acquire any available Equity Membership. In the event the desired classification of membership is not available at the time of application, the Company or the Club may defer the payment of the required membership contribution until the desired membership becomes available and may require such person to acquire another classification of membership at the Club until the desired membership classification becomes available. The initial retail purchaser of a residence or homesite in Mizner may apply for membership at the time of executing a purchase agreement to acquire the residence or homesite. The Company and the Club, in their sole discretion, may permit, upon approval of the member and payment of the required membership contribution, dues, fees and other charges, the purchaser to activate the membership privileges and use the Club Facilities prior to actually closing on the purchase of the residence or homesite in Mizner. However, the continuation of membership privileges at Mizner Country Club is conditional upon the closing of the purchase of the property in Mizner. In the event the purchaser does not close on the property, then the Company and/or the Club may recall the membership and terminate membership privileges, in which event the membership contribution and a prorata portion of any dues and fees paid in advance will be refunded. -14- 3. Use Privileges Of Equity Membership Each Equity Member shall have the privileges and may use the Club Facilities as provided by the classification of membership selected by the member and all membership privileges are subject to these By-Laws and the Rules and Regulations established by the Club. Upon approval by the Club, payment of the applicable membership contribution, dues, fees and other charges and compliance with the Rules and Regulations, Equity Members obtain the following use privileges. Full Membership. A Full Membership allows the member to use the golf, tennis, swimming, exercise and clubhouse facilities provided at Mizner Country Club and to attend club-sponsored events held at the Club. Full Members shall not be charged green fees or court fees for use of the golf and tennis facilities, but shall pay the applicable golf cart fees or annual trail fees. Full Members shall have such advance sign-up privileges to reserve golf starting times and tennis court times as may be established by the Club. Sports Membership. A Sports Membership allows the member to use the golf, tennis, swimming, exercise and clubhouse facilities provided at Mizner Country Club and to attend club sponsored events held at the Club. Sports Members may use the golf facilities (including the practice range and putting green) from May 1 through October 31 without the payment of green fees. Sports Members may only play golf up to six times from November 1 through April 30 and must pay the required green fees. From November 1 through April 30, Sports Members may only use the practice range and putting green when the member is actually playing a round of golf. Sports Members shall always have a lesser advance sign-up privilege to reserve golf starting times than Full Members and shall pay the required golf cart fees or annual trail fees for use of the golf facilities. Sports Members shall have the same advance sign-up privilege to reserve tennis court times as Full Members, and shall not pay court fees for use of the tennis facilities. Social Membership. A Social Membership allows the member to use the swimming, exercise and dining facilities provided at the clubhouse at Mizner Country Club and to attend club-sponsored social events held at the Club. Social Members may not use the golf facilities or tennis facilities and may not participate in the privately-owned golf cart program at the Club. All property owners in Mizner are required to be at least a Social Member at Mizner Country Club. In order to provide for the orderly administration of the Club and the utmost playing pleasure for all members, the Club reserves the right, from time to time, to establish different classifications of membership and to promulgate and modify rules governing access, sign-up privileges and starting times with respect to the golf, tennis and other recreational facilities provided at the Club in order to optimize the use of the Club Facilities. In order to better control golf play during peak playing times on the golf course, the Club may designate certain times on the golf course as "primary playing times". During times designated by the Club as "primary playing times", only one golf starting time may be reserved per membership. -15- Memberships at Mizner Country Club shall be issued in the name of the individuals) applying for membership in the Application for Equity Membership. An Equity Membership allows the member and immediate family members (or the designee of a company-held membership) to use the facilities in accordance with the classification of membership selected and upon payment of the required dues. The immediate family of a member or designee includes the spouse of the member or designee who is living in the member's or designee's home, and unmarried children who are under the age of twenty-three and either living in the member's or designee's home or attending school on a full-time basis. The Club reserves the right to restrict access to the golf and tennis facilities by children of the immediate family during peak periods of play. 4. Procedure For Upgrading An Equity Membership Because of the limited number of memberships and the reservation of memberships by the Company, it is unlikely that a higher classification of membership will be available for an Equity Member desiring to upgrade. However, if a higher classification of membership becomes available, an Equity Member may upgrade to such higher classification of membership if permitted by the Club. An upgrading member shall pay the difference between the membership contribution originally paid for the classification of Equity Membership owned by the upgrading member and the membership contribution being charged for the higher classification of Equity Membership at the time the member desires to upgrade. Sports Members shall have priority over Social Members to acquire available Full Memberships. Notwithstanding anything to the contrary herein, persons who own a residence or homesite in Mizner who are on the Club's waiting list shall have priority over persons who do not own a residence or homesite in Mizner to acquire any classification of Equity Membership which becomes available. The downgrade of a Full Membership or Sports Membership is not permitted. Notice to Upgrade: Sports Members and Social Members must provide written notice informing the Club of their desire to upgrade. The member may not withdraw the decision to upgrade without obtaining the Club's prior written consent. Waiting List: Upon receipt of the notice to upgrade from the member and approval by the Club, the Club will place the member's name on the waiting list for the desired classification of membership. The only Equity Memberships which are available in an upgrade situation are those memberships that become available as a result of the resignation of a Full Membership or Sports Membership whose membership is not being transferred to the subsequent purchaser of their residence or homesite as further described herein. All other Equity Memberships are reserved by the Company for sale to initial retail purchasers of residences or homesites in Mizner and are not considered available for upgrades. Purchase of a Higher Classification of Membership: If a membership becomes available in the desired classification of membership, the Club will notify in writing the next individual on the waiting list according to the priority set forth above. The upgrading member shall pay the amount required for upgrading to the higher classification of membership within fifteen (15) days of the date of the Club's notice. At that time, the member assumes responsibility for all dues, fees, charges and assessments associated with the higher classification of membership. -16- Resignation of the Lower Classification of Membership: At the time of upgrade, the lower classification of membership, if an Equity Membership, shall be considered terminated and unissued and may be resold by the Company. The member will not be responsible for dues, fees or any other charges accruing in the lower classification of membership after the date of resignation and will not receive a refund of any amount when the lower classification of membership is reissued by the Company. 5. Memberships May Be Held In The Name Of A Company, Partnership Or Other Form Of Multiple Ownership The Company and the Club may permit an Equity Membership to be held in the name of a company, corporation, partnership, trust or other form of multiple ownership (collectively, the "company"). If permitted, the company shall designate one person as the designee of the membership use privileges. Immediate family members of the designee may also use the facilities. The designee of the membership use privileges must be an officer, director, partner, owner or employee of the company (or a trustee, donor or principal beneficiary of the trust), must submit an application and be approved. The company shall be responsible for the payment of the required membership contribution which may be higher than the membership contribution charged for a membership held by an individual and both the company and the designee of the membership privileges shall be jointly and severally liable for the payment of all dues, fees, assessments and other charges incurred by the designee, immediate family members and their guests. The designee shall have the same use privileges and shall pay the same dues, fees and other charges as any other member in the same classification of membership. The company may change the designee of the membership use privileges at any time during the membership year upon approval of the new designee and the payment of the applicable change of designee fee to the Club. Upon the change of the designee, the prior designee must return all issued use privilege cards to the Club and the new designee must submit an application and be approved by the Club. The Club reserves the right to establish additional rules regarding a membership held by a company, including the criteria for designating a person to use the membership privileges and the number of times the designee of the membership privileges may be changed during any membership year. The Club may limit the number of companies that acquire a membership in a particular classification from time to time. 6. Membership Contribution Persons acquiring an Equity Membership at Mizner Country Club shall pay the membership contribution set forth in the Application for Equity Membership. Until the initial sale of all Equity Memberships permitted to be issued at the Club, the Company will establish the required membership contribution and the manner of payment of the membership contribution for all Equity Memberships. In addition, the membership contribution for resigned Equity Memberships, which arc available for reissuance by the Club because of the resignation of an Equity Membership, shall be equal to the membership contribution then currently established by the Company for a previously unissued Equity Membership. After the initial sale of all Equity Memberships permitted to be issued at the Club, the Board of Directors of the Club will establish the required membership contribution and the manner of payment of the membership contribution for all Equity Memberships. -17- The failure to pay all amounts of the membership contribution when due will be cause for termination of membership privileges at the Club without refund of any membership contribution or any other dues and fees previously paid. 7. Voting Equity Membership allows the member to vote on all matters to be voted upon by the Equity Members of the Club. However, Equity Members will not be permitted to vote on any Club matters until immediately prior to the Turnover Date unless otherwise specifically provided in the Plan Documents. Unless otherwise specifically provided herein, Full Membership is entitled to four (4) votes per membership, Sports Membership is entitled to two (2) votes per membership and Social Membership is entitled to one (1) vote per membership. However, only those Equity Members who are current on all dues, fees, charges and other obligations to the Club and the Company and are in good standing on the record date shall have any voting privileges. 8. Application For Membership a. All applicants acquiring an Equity Membership being initially sold by the Company must be approved by the Company. All applicants acquiring a resigned Equity Membership being reissued by the Club must be approved by the Club. b. An applicant for an Equity Membership at the Club must submit an Application for Equity Membership. The Application for Equity Membership must be completed in full and must be accompanied by the membership contribution due as set forth in the Application for Equity Membership. Upon receipt of the Application for Equity Membership and the applicable membership contribution, a determination will be made whether the applicant has satisfied the relevant conditions of membership. The evaluation will be conducted with the intent and purpose of securing the optimum number of members with compatible social, vocational and professional attainment from all segments of the community. All applicants will be evaluated on the basis of their interest in Mizner Country Club, their financial responsibility, and their compatibility with other members at the Club. c. If approved for membership at the Club, the member agrees to be bound by the terms and conditions of these By-Laws and the Plan Documents (as defined in the Subscription Agreement), as amended from time to time and irrevocably agrees to fully substitute the membership privileges acquired pursuant to the Plan Documents for any present or prior rights in or to use the Club Facilities. d. Comments from Equity Members with respect to prospective members shall be privileged communications, and only the Membership Committee and the Board of Directors shall have access to such communications. 9. Membership Certificates a. Every Equity Member who has paid the required membership contribution in full shall receive a membership certificate. Each membership certificate shall be in a form approved by the Board of Directors and shall be subscribed by the President and Secretary and under the seal of the Club. -18- b. Membership certificates are not redeemable or transferable except as specifically provided by these By-Laws and then only through the Treasurer of the Club. Whenever any person shall cease to be an Equity Member, whether by death, resignation, recall, expulsion or other provisions of these By-Laws, such cessation shall operate to authorize the Treasurer of the Club to effectuate the redemption, cancellation or transfer of the Equity Membership in accordance with and in the manner prescribed by these By-Laws. 10. Resignation-Transferability Of Memberships a. Equity Memberships are not transferable or assignable except as provided in this Section 10 or Section 11 hereof. b. Full Members and Sports Members who desire to resign their membership privileges must give the Club written notice of their intention to resign membership privileges. Memberships which have been resigned will only be reissued by the Club in accordance with the procedures set forth in the Plan Documents. Any attempt to transfer or reassign a membership at Mizner Country Club, either voluntarily, involuntarily or by operation of law, which is not in accordance with the Plan Documents shall be null and void and no person or entity may obtain a membership except as provided therein. A Full Member or Sports Member who owns a residence or homesite in Mizner may resign the Full Membership or Sports Membership and receive a partial refund as further described below, provided that such owner shall always remain at least a Social Member at Mizner Country Club and pay all of the required dues, fees, assessments and other charges associated with the Social Membership until the closing of the sale or other transfer of their residence or homesite in Mizner to a new owner. c. Social Members who own a residence or homesite in Mizner may not resign their Social Membership and are required to maintain the Social Membership in good standing at all times and to pay to the Club all required dues, fees, assessments, personal charges and all other fees associated with the Social Membership until the closing of the sale or other transfer of the member's residence or homesite in Mizner to a subsequent owner. Therefore, Social Memberships at the Club are not transferable and terminate upon the closing of the sale or other transfer of the residence or homesite in Mizner to a new owner or on such earlier date as otherwise set forth in the Plan Documents. d. The Club shall maintain two resigned membership lists. One resigned membership list will be maintained for resigned full Memberships and the other resigned membership list will be maintained for resigned Sports Memberships. Upon the resignation of membership privileges by the Club, the resigned Full Membership or Sports Membership will be placed on the appropriate resigned membership list in the order of resignation on a first-come, first-served basis. In order to be placed on a resigned membership list, the resigned member must have paid the required membership contribution and all dues, fees and other charges in full. Once placed on the resigned membership list, the resigned member will not be permitted to rescind the resignation of membership privileges and the resigned membership must be reissued by the Club at the time the membership has rotated to the top of the resigned membership list as described below. e. Until the initial issuance of all of the full Memberships permitted to be issued at Mizner Country Club, every fourth Full Membership issued will be the first resigned Full Membership on the resigned membership list maintained by the Club for Full Memberships, provided a resigned Full Membership is on the resigned membership list at that time. The other three Full Memberships issued will be issued from the unissued Full Memberships. After the initial issuance of all of the Full Memberships permitted to be issued at Mizner Country Club, then every Full Membership issued will be the next resigned Full Membership on the resigned membership list maintained by the Club for Full Memberships. -19- f. Until the initial issuance of all of the Sports Memberships permitted to be issued at Mizner Country Club, every fourth Sports Membership issued will be the first resigned Sports Membership on the resigned membership list maintained by the Club for Sports Memberships, provided a resigned Sports Membership is on the resigned membership list at that time. The other three Sports Memberships issued will be issued from the unissued Sports Memberships. If the Company or the Club is not offering Sports Memberships for initial issuance, then every Sports Membership issued will be the next resigned Sports Membership on the resigned membership list maintained by the Club for Sports Memberships. g. As an exception to the general rule for the reissuance of memberships described above, Full Members and Sports Members who own a residence or homesite in Mizner shall have the opportunity for the thirty-day period immediately following the closing of the sale of their residence or homesite in Mizner to arrange for the Club to reissue their membership to the purchaser of their residence or homesite in Mizner. Full Members and Sports Members shall have this opportunity even though all of the memberships in their classification of Equity Membership have not been issued and even though a resigned membership list or a waiting list of persons desiring to obtain their classification of membership has been established. In order for the subsequent purchaser of the residence or homesite in Mizner to be eligible to apply for the resigned member's Full Membership or Sports Membership, the resigned member must have paid the membership contribution and all of the dues, fees, assessments and other charges in full at the time of transfer. The purchaser of the resigned member's residence or homesite in Mizner must submit an Application for Equity Membership, be approved for membership and pay the membership contribution charged at that time. The reissuance of a Full Membership or Sports Membership to a subsequent purchaser of a resigned member's residence or homesite in Mizner is excluded from and is not included in determining when every fourth. membership has been issued. Since property owners in Mizner must acquire at least a Social Membership, the Club will reissue a Social Member's membership to the subsequent owner of their property upon approval and payment of the required membership contribution charged at that time. If a Full Member or Sports Member resigns from the Club and is not selling their residence or homesite in Mizner or does not arrange for the purchaser of his or her residence or homesite in Mizner to acquire their Full Membership or Sports Membership, their membership shall be placed on the appropriate resigned membership list described above for reissuance by the Club and there is no guarantee that the Club will reissue the membership or that the resigned member will be able to recover any portion of the membership contribution paid for their membership. h. The Club shall refund to the Equity Member a pro-rata portion of any unused dues, fees and other charges paid in advance beginning with the first full month after the Equity Membership is reissued by the Club to a new member. i. Equity Members may take their memberships with them to another residence or homesite they own in Mizner. If a member wants to take the Equity Membership to a residence or homesite which is being sold by another Equity Member, the prior written approval of both members to the transfer must be delivered to the Club on such forms as may be provided by the Club from time to time. -20- j. Upon the reissuance of a resigned member's Full Membership or Sports Membership (excluding the transfer of a membership to a surviving spouse or an heir upon the death of an Equity Member or the transfer of a membership to a spouse upon the legal separation or divorce of a member), the Club shall pay to the resigned Full Member or Sports Member a transfer payment equal to the actual membership contribution previously paid by the resigned member for their classification of Equity Membership. The transfer payment shall be paid to the resigned member within thirty days after the resigned member's membership is reissued by the Club to a successor member who has been approved for membership and paid the membership contribution in full to the Club. However, if the Full Member or Sports Member owns a residence or homesite in Mizner and is simply resigning their Full Membership or Sports Membership and not selling their residence or homesite in Mizner, then the transfer payment paid to such resigned Full Member or Sports Member shall be reduced by the amount of the membership contribution charged for a Social Membership at the time the resigned member originally acquired their Full Membership or Sports Membership. This reduction in the amount of the transfer payment is necessary since all property owners in Mizner must maintain at least a Social Membership at all times. In this event, such Social Member shall receive another refund from the Club in the amount and in the manner described in the next paragraph upon the subsequent sale of their residence or homesite in Mizner. A Social Member, who owns a residence or homesite in Mizner, shall be paid a transfer payment by the Club equal to the actual membership contribution previously paid by the member for the Social Membership. This transfer payment shall be paid to the Social Member within thirty days after the Social Membership is reissued by the Club to the subsequent owner of the member's residence or homesite in Mizner who has been approved for membership and paid the membership contribution in full to the Club. However, no transfer payment will be paid upon the continuation of a membership by a surviving spouse or an heir upon the death of a Social Member or the transfer of a membership to a spouse upon the legal separation or divorce of a Social Member. k. In order for a resigned Equity Member to be paid the transfer payment described above, the required membership contribution and all dues, fees, charges and assessments must be paid in full. The Club will deduct from the amount to be paid to a resigned member any amount which the resigned member owes to the Company or to the Club. l. The difference between the membership contribution paid by a new member and the transfer payment paid to a resigned member shall be paid to the Company if the resigned membership is reissued prior to the Turnover Date and shall be retained by the Club if the resigned membership is reissued after the Turnover Date. m. The Company reserves the right to change the amount of the transfer payment and the terms of payment of the transfer payment for unissued memberships in the Club, including resigned memberships reissued by the Club. Any such change will not affect, in any way, the rights of members of the Club who have obtained a membership prior to the time the change takes effect. The Club shall have this right after the initial issuance of all of the Equity Memberships permitted to be issued at the Club. -21- n. The Club is not obligated to reissue a resigned Equity Membership or repay any portion of membership contribution under any circumstances other than those described above. However, the Club may repay a member's membership contribution or any portion thereof in such hardship situations deemed appropriate by the Club, in its sole discretion. o. Full Members and Sports Members who have resigned membership privileges shall be obligated to continue to pay dues, fees, charges, dining minimums and assessments associated with their resigned membership until their membership is reissued by the Club. Social Members who own a residence or homesite in Mizner must continue to pay the required dues, fees, charges, dining minimums and assessments associated with their Social Membership until the sale or transfer of their residence or homesite to another owner. A resigned member may use the Club Facilities until their membership is reissued by the Club as long as the required dues, fees, charges, dining minimums and assessments continue to be paid. 11. Transfer Upon Death Or Divorce a. Upon the death of an Equity Member who owns a residence or homesite in Mizner, the membership will automatically pass to the member's surviving spouse, if any, provided the surviving spouse is the owner of the residence or homesite in Mizner without the payment of any additional membership contribution. If a deceased member is not survived by a spouse or the surviving spouse is not the owner of the deceased member's residence or homesite in Mizner, then the heir of the deceased member's residence or homesite in Mizner may continue with the deceased member's membership without the payment of any additional membership contribution, subject only to the approval of the Club and the payment by the heir of all outstanding amounts owed to the Club (including all dues, fees, charges and assessments associated with the deceased member's membership for the intervening time between the date of the member's death and the date of the application by the heir). The continuation of a deceased member's membership by a surviving spouse or an heir of the deceased member's residence or homesite does not require a transfer payment by the Club and the opportunity to be paid the transfer payment upon the subsequent reissuance of the membership by the Club as further described herein shall be transferred to the surviving spouse or heir that continues with the membership. b. In the event an Equity Member is legally separated or divorced, title to the membership, including all rights and benefits given to the holder thereof, shall continue and vest in the spouse awarded the residence or homesite in Mizner. In the event the Equity Member does not own a residence or homesite in Mizner, then title to the membership, including all rights and benefits given to the holder thereof, shall continue and vest in the spouse awarded the membership in a written separation agreement or final divorce decree. Both of the divorced or legally separated persons must give written notice to the Club designating the person who is entitled to continue with the rights and privileges of Equity Membership immediately after the divorce or legal separation is declared final. Until written notice has been provided to the Club, each spouse shall be jointly and severally responsible for the payment of all dues, fees, charges and assessments associated with such membership. The Club will not be involved in any dispute and reserves the right to suspend all membership privileges in the event of disagreement over which spouse retains the membership privileges. The Club shall not pay any transfer payment upon the legal separation or divorce of a member. -22- 12. Privileges Of Tenants Equity Members have the opportunity to designate their tenants who lease their residence in Mizner for two months or more as the beneficial user of their membership in the Club. This privilege is subject to the Rules and Regulations established by the Club from time to time, including the limitation that a member may not lease his or her residence more than twice during any membership year. A tenant who is designated as the beneficial user of the member's membership is allowed, upon payment of all required use charges and fees (including but not limited to, green fees, golf cart fees, tennis court fees and other personal charges incurred at the Club) to the same privileges to use the Club Facilities as the lessor member, provided the tenant has been approved by the Club prior to the tenant's use of the Club Facilities. During the time a member has designated a tenant of his or her residence in Mizner as the beneficial user of their membership, the member shall have no privileges to use the Club facilities by virtue of the membership at the Club. The member shall continue to pay the required dues associated with the membership. A membership must be acquired for each residence for which the member desires the tenant to be able to use the Club Facilities. Members are responsible for all charges incurred by their tenant which remain unpaid after the customary billing and collection procedure of .the Club and for the deportment of each tenant. The Club reserves the right to establish other rules relating to use of the Club Facilities by tenants from time to time. ARTICLE XI OTHER MEMBERSHIP PRIVILEGES 1. Invitational Memberships In order to promote the sale of residences and homesites in Mizner and to introduce the Club to prospective members, the Club may issue recallable non-equity, non-transferable annual or seasonal memberships known as-"Invitational Memberships". The rights and privileges of Invitational Members will be established by the Board of Directors of the Club from time to time and will be described in a separate Invitational Membership Plan or Application for Annual Membership. Invitational Members are not entitled to vote on any Club matters and do not have any equity or ownership interest in the Club or the Club Facilities. Initially, the Club will offer a limited number of Invitational Golf Memberships on an annual basis and possibly on a seasonal basis. However, the maximum number of Invitational Annual Golf Memberships at the Club shall be the difference between three hundred eighty-seven (387) and the actual number of Full Memberships issued at Mizner Country Club on the first day of each membership year. 2. Use Of Other Club Facilities The Company and the Club reserve the right to enter into reciprocal use arrangements with other clubs, including but not limited to, other clubs owned, controlled or managed by the Company, Club or their affiliates, which would allow members at Mizner Country Club to use the facilities at other clubs and the members at other clubs to use the facilities provided at Mizner Country Club. The terms of such use and the fees to be paid for the reciprocal use privileges will be established by the Company or the Club from time to time. The reciprocal use privileges may extend and continue after the Turnover Date and may be terminated at any time in the sole discretion of the Company. -23- 3. Honorary Memberships A limited number of Honorary Memberships may be issued to persons designated by the Club or the Company from time to time. These memberships are in addition to all other memberships to be issued at Mizner Country Club and shall be available on terms and conditions and allow such privileges as shall be established by the Club and the Company. Honorary Memberships may be changed at any time by either the Club or the Company (depending on which entity designated the user as an Honorary Member initially) and a new user designated to use the membership privileges from time to time. However, the Company may designate up to five Honorary Memberships prior to the Turnover Date that shall be permanent lifetime memberships for those persons designated by the Company and their immediate families. ARTICLE XII GUEST PRIVILEGES Guests of members may be extended guest privileges subject to applicable guest fees, charges and the Rules and Regulations established from time to time by the Board of Directors. Guest privileges may be denied, withdrawn or revoked at any time for reasons considered sufficient by the Board of Directors. All guests shall be either houseguests or day guests. A houseguest is defined as a guest temporarily residing in a member's residence in Mizner. All other guests of a member shall be considered day guests. Day guests must be accompanied by the member at all times when using the Club Facilities, unless otherwise permitted by the Club from time to time. Day guests will be charged guest fees established by the Board of Directors for their use of the Club Facilities. Houseguests are permitted to use the Club Facilities unaccompanied by the member. In addition to all use fees as established by the Board of Directors, houseguests may be charged a temporary houseguest membership fee for each one week period. ARTICLE XIII DUES, FEES AND CHARGES The Club's membership year will constitute the twelve month period commencing November 1 and ending on October 31, unless otherwise established by the Club. The Board of Directors of the Club will determine the amount of dues, fees, dining minimums and other charges to be paid by each member from time to time. The amount of dues payable by each member will depend upon the classification of membership selected. The Club may contract with the Mizner Country Club Master Association, Inc. to collect dues charged to Equity Members who own a residence or homesite in Mizner and to remit the dues to the Club. The dues may be established at any level deemed appropriate by the Board of Directors of the Club. -24- The Club is also obligated to pay assessments to the Mizner Country Club Master Association, Inc. pursuant to the Declaration of Master Covenants for Mizner Country Club recorded in the Public Records of Palm Beach County. The obligation to pay dues is not dependent on the availability of all the facilities or the frequency of use. Repair and maintenance of the facilities and/or other occurrences may make it necessary for the Club to change hours of use or restrict the use of the facilities or to close certain facilities temporarily. The Club will not reduce or suspend dues during the time when the facilities, in whole or in part, are not available. Dues shall be due and payable in advance, on or before the first day of each membership year, unless otherwise established by the Club. The current dues for use of the Club Facilities are set forth on the Schedule of Dues, Fees and Charges. The amount of dues for subsequent years is subject to change. Monthly statements will be closed on the last day of each month and will normally be mailed to the members of the Club within five days. All statements are due and payable upon receipt and in no event later than the twentieth day of the month in which the statement was mailed. A late charge and/or interest will be added to all outstanding balances in accordance with the Rules and Regulations if the statement is not paid by the twentieth day of the month. In addition, the Club reserves the right to place any member whose account is not paid in full by the twentieth day of the month on a cash-only basis for any or all services and merchandise otherwise provided for credit at any time. The failure of any member of the Club to timely pay fees and other charges by the twentieth day of the month and the failure to pay dues and all amounts of the membership contribution when due shall constitute grounds for suspension and/or termination of membership privileges at the Club. In the event a person who owns a residence or homesite in Mizner fails to pay the required dues, fees and other charges, then the Club may suspend, terminate or take any other disciplinary action relating to his/her membership in the Club. Upon termination of a membership held by a person who owns a residence or homesite in Mizner, the dues obligation of the Social Membership shall continue to accrue until the closing of the sale or other transfer of such individual's residence or homesite in Mizner to a new owner. In the event a membership is -terminated, the member will no longer have any membership privileges to use the Club Facilities and will not receive a transfer payment or otherwise be entitled to a refund of any portion of the membership contribution previously paid. Each member shall be legally and financially responsible for his or her acts or omissions as well as those of the member's immediate family, guests and tenants. When a membership is issued in the name of more than one person, each person shall be jointly and severally responsible for all dues, fees, dining minimums and other charges and liabilities associated with such membership. If a membership is issued in the name of both spouses, notice to the Club of termination of marriage or cohabitation shall not discharge either spouse from the liability for subsequent dues, fees, and other charges and liabilities unless the notice is coupled with the resignation of one of the spouses. Equity Members of the Club who do not desire to use their full membership privileges during any membership year may arrange through the Club for the exchange of their membership privileges with those of another member of the Club upon obtaining the approval of the Club, the payment of an exchange fee charged from time to time by the Club and the exchanging members' payment of their respective dues. The right to exchange membership privileges shall be on a membership year basis and shall riot affect the exchanging members' rights to their underlying memberships or obligations for such memberships. Members shall be responsible for payment of all assessments and other fees, except dues, based on the category of their underlying membership. -25- ARTICLE XIV DELINQUENCIES 1. Statement An itemized statement of any dues, fees, assessments, dining minimums and current charges shall be mailed monthly to each member. Any member failing to pay his or her indebtedness to the Club by the twentieth day of the month shall be subject to action as is determined appropriate by the Board of Directors. The failure of any member to pay dues within the prescribed period shall constitute grounds for termination of his or her membership. 2. Liens To the extent permitted by applicable law, the Club shall have a security interest under the Uniform Commercial Code as enacted in the State of Florida (the "Code") in each membership for any unpaid dues, fees, assessments and other charges of all members. This security interest shall serve to secure, in addition to unpaid dues, fees and other charges, filing fees and reasonable attorneys' fees incurred by the Club incident to the collection of the dues, fees and other charges, or the enforcement of payment of the requisite amounts due under the membership or this security interest, whether or not legal proceedings are initiated. This security interest may be perfected by either or both of (a) expressly acknowledging the security interest on the membership certificate, and noting its existence and amount, where applicable, on the member records of the Club, and (b) filing a UCC financing statement with the appropriate public registries. In this regard, the respective members do hereby irrevocably make, constitute and appoint the Club and any of its officers, employees or agents as the true lawful attorneys of the respective member to sign the name of that member on any financing statement, renewal financing statement, notice or other similar document which in the Club's opinion will assist it in perfecting the security interests granted to it in the membership. If any default shall occur in the payment of any dues, fees and other charges of a member, the Club shall have the remedies of a secured party under the Code. The Club shall give the member at least five (5) days notice of the time and place of any public sale or of the time after which any private sale or other intended disposition of the membership is to be made. Notice so given shall constitute reasonable notice. The Club may also, at its option, sue to recover a money judgment for unpaid dues, fees and other charges, without thereby waiving its security interest securing the same. No member shall be permitted to create, incur, assume or suffer to exist upon the member's membership any liens or security interests whatsoever except to the extent the lien or security interest represents a purchase money lien and security interest incurred as a result of acquiring the membership and is approved in advance by the Club. In the event of foreclosure of the purchase money lien or security interest incurred as a result of acquiring the membership, the party foreclosing on the membership must give the Club written notice of the pending foreclosure, and the Club shall have the right to repurchase the membership before the foreclosure on the same basis as if the member had resigned membership privileges in the Club. -26- ARTICLE XV DISCIPLINE Any member, immediate family member or guest of the member whose conduct shall be deemed by the appropriate committee to be improper or likely to endanger the welfare, safety, harmony or good reputation of the Club or its members, may be reprimanded, fined, suspended or expelled from the Club by action of the Board of Directors. The Board of Directors shall be the sole judge of what constitutes improper conduct or conduct likely to endanger the welfare, safety, harmony or good reputation of the Club or its members. 1. Board Action A member shall be notified of any proposed disciplinary action and shall be given an opportunity to be heard by the Board of Directors to show cause why the member should not be disciplined in accordance with this Article. If the member desires to be heard, the member must provide a written request for a hearing to the General Manager within ten (10) days after the date of the Club's notice to the member of the proposed action. Upon receipt of the written request for a hearing, the Board of Directors shall set a time and date for such hearing, which shall in no event be less than five (5) days after such request. Depending on the severity of the violation in the discretion of the Board of Directors, the membership/use privileges of the offending member, designee or immediate family member may be suspended pending a final resolution. 2. Suspension The Board of Directors may suspend a member and/or any immediate family member or guest of the member from some or all of the privileges of the Club for a period of up to one (1) year. Dues and other obligations shall accrue during such suspension and must be paid in full when due. 3. Resignation-Request By Board Of Directors The Board of Directors may, by a two-thirds (2/3) vote of the Directors present, request the resignation of any member of the Club for cause deemed sufficient by the Board of Directors. 4. Expulsion A member may be expelled or suspended by the Club if the appropriate committee of the Club and the Board of Directors determine that the member's conduct was improper or likely to endanger the welfare, safety, harmony or good reputation of the Club or its members. A member of the Club who has been expelled shall not again be eligible for membership nor admitted to the Club's property under any circumstances. A member who has been expelled from the Club shall forfeit his or her membership in the Club and will not be entitled to the return of any membership contribution paid for membership. An expelled member shall be notified by registered mail and shall have the obligation to surrender the membership certificate to the Club. -27- ARTICLE XVI CORPORATE SEAL The Corporate Seal of the Club shall be circular in form and shall have inscribed thereon the name of the corporation and the words "seal", "Florida", "Not-For-Profit Corporation" and the year of incorporation. The corporate seal shall be in the possession of the Secretary of the Club and be affixed by the Secretary to all documents relating to the official acts of the Club, as authorized by the Board of Directors. ARTICLE XVII MISCELLANEOUS 1. Fiscal Year The fiscal year of the Club shall commence on the first day of November and conclude on the last day of October. 2. Assessments There will be no assessments for operating deficits prior to the Turnover Date. However, the Board of Directors of the Club may find it necessary to make assessments, in addition to dues, to cover any operating deficits that occur after the Turnover Date. Assessments to cover operating deficits shall be prorated among the Equity Members based on the annual dues charged to each of them during the year in which the deficit occurs. Prior to the Turnover Date, there will be no assessments for capital expenditures to the Club Facilities unless such capital assessment is approved by the Company, the Board of Directors of the Club, a majority of the members of the Advisory Board of Governors and sixty percent of all of the members in each classification of Equity Membership that would be required to pay such capital assessment. After the Turnover Date, there will be no assessments for capital expenditures to the Club Facilities unless such capital assessment is approved by a majority of the members of the Board of Directors and sixty percent of all of the members in each classification of Equity Membership that would be required to pay such capital assessment. All proposed assessments for capital expenditures to the golf facilities or tennis facilities shall be paid equally by all Full Members and Sports Members. Social Members shall not pay any assessment for capital expenditures to the golf and tennis facilities provided at the Club. All other assessments for capital expenditures shall be paid equally by all Equity Members. The Club will make no capital or operating assessment nor charge any dues, fees or other charges on any Equity Membership during the period while the Equity Membership is held for sale by the Company, including but not limited to, those resigned Equity Memberships which the Company purchases from the Club. Invitational Memberships will not be assessed for capital or operating assessments. Failure to pay any assessment shall subject an Equity Member to the same penalties as failure to pay any other indebtedness to the Club. -28- 3. Conflict Between By-Laws And Articles Of Incorporation In the event of conflict between the terms of these By-Laws and Articles of Incorporation, the Articles of Incorporation shall prevail. 4. Dissolution Of Club In the event of dissolution or final liquidation of the Club after the Turnover Date, all of the property and assets of the Club, after payment of its debts, shall be distributed, as permitted by applicable Florida law and a court having jurisdiction, among the holders of the Equity Memberships of the Club in proportion to the value of their Equity Memberships at that time. 5. Indemnification By The Club The Club shall indemnify and hold harmless each person who shall serve at any time hereafter as a member of the Board of Directors, the Advisory Board of Governors or as an officer of the Club from and against any and all claims and liabilities to which such person shall become subject by reason of his or her having been, or hereafter being, a member of the Board of Directors, the Advisory Board of Governors or an officer of the Club, or by reason of any action alleged to have been taken or omitted by him or her as such member of the Board of Directors, the Advisory Board of Governors or officer of the Club, and shall reimburse each such person for all legal and other expenses reasonably incurred by him or her in connection with any such claim or liability to the fullest extent permitted by applicable Florida law. However, no such person shall be indemnified against, or be reimbursed for, any expense incurred in connection with any claim or liability arising out of his or her willful misconduct. ARTICLE XVIII AMENDMENTS 1. By Board Of Directors Prior to the Turnover Date, these By-Laws may be amended by a majority of all of the members of the Board of Directors of the Club, provided that the amendment or alteration is approved by the Company and is set forth in the notice of the meeting at which the matter is to be acted upon and provided that the amendment is not materially adverse to the rights of the Equity Members of the Club, in the sole and absolute discretion of the Company. A majority of the votes associated with the outstanding Equity Memberships that would be affected by the proposed amendment must approve any amendment to these By-Laws prior to the Turnover Date which is materially adverse to the rights of the Equity Members. 2. By Equity Members Subject to the restrictions set forth in Section 3 below, these By-Laws may be altered, amended, or repealed or new By-Laws may be adopted except as otherwise provided herein, only by: (a) a majority vote of all of the members of the Board of Directors, and (b) a majority of the votes cast by the Equity Members in person or by proxy at any duly called and constituted annual or special meeting of the Equity Members of the Club at which a quorum of the Equity Members is present either in person or by proxy. The proposed amendment must be set forth in the notice of the meeting. -29- 3. Restrictions On Amendments Prior to the initial sale of all Equity Memberships permitted to be issued at the Club, neither the Club nor the Equity Members may change, modify or delete the provisions of these By-Laws and the Plan Documents without the prior written consent of the Company. After the initial issuance of all Equity Memberships permitted to be issued at the Club, the following provisions may only be changed, modified or deleted if such change is approved by a majority of all of the members of the Board of Directors of the Club and seventy-five percent of all of the members in each classification of Equity Membership that would be affected by such change or modification: (a) the total number of Equity Memberships or the number of members allowed in any particular classification of membership as described in the Plan Documents as of the Turnover Date, (b) the restrictions or limitations on assessments on Equity Members as described in the Plan Documents as of the Turnover Date, (c) the eligibility to acquire an Equity Membership as described in the Plan Documents as of the Turnover Date, (d) the rights of tenants to use the Club Facilities as described in the Plan Documents as of the Turnover Date, and (e) this Section 3, Article XVIII of the By-Laws of the Club as of the Turnover Date. 30 EX-3.86 82 ex3-86.txt EXHIBIT 3.86 Exhibit 3.86 ARTICLES OF ORGANIZATION OF NAPLES LAKES COUNTRY CLUB, L.L.C. 1. Name. The name of this limited liability company is NAPLES LAKES COUNTRY CLUB, L.L.C., a Florida limited liability company (the "Company"). 2. Duration. The Company shall exist from the date of filing of these Articles of Organization with the Florida Secretary of State, and the Company's existence shall be perpetual. 3. Purpose. The Company is organized for the purpose of transacting all lawful activities and businesses that may be conducted by a limited liability company under the laws of Florida. 4. Place of Business. The mailing and street address of the Company's principal office is 28341 S. Tamiami Trail, Suite D, Bonita Springs, FL 34134. 5. Registered Agent and Office. The name of the initial registered agent of the Company is Steven M. Samaha. The street address of the initial registered agent of the Company is 201 North Franklin Street, Suite 2100, Tampa, Florida 33602. 6. Additional Members. Additional members to the Company may be admitted, but only upon the unanimous consent of all members of the Company at the time admission is sought. 7. Management of the Company. The Company shall be managed by a manager or managers in accordance with the Operating Agreement adopted by all of the members and is, therefore, a manager-managed company. The undersigned executed these Articles of Organization effective as of the 9th day of November, 1999. (In accordance with Section 608.408(3), Florida Statutes, the execution of these Articles constitutes an affirmation under the penalties of perjury that the facts stated herein are true.) MEMBER: TBI/NAPLES LIMITED PARTNERSHIP, a Florida limited partnership By: TOLL FL GP CORP., A Florida corporation, its General Partner By: Edward D. Weber ---------------------------------- Print Name: Edward D. Weber -------------------------- Its: Vice President --------------------------------- ACCEPTANCE BY REGISTERED AGENT Having been named Registered Agent and designated to accept service of process for the within-named Company, at the place designated herein, and being familiar with the obligations of that position, I hereby agree to act in this capacity, and I further agree to comply with the provisions of all statutes relative to the proper and complete performance of my duties. Steven M. Samaha ------------------------------------ Steven M. Samaha Dated: 11-9-99 ------- -2- EX-3.87 83 ex3-87.txt EXHIBIT 3.87 Exhibit 3.87 OPERATING AGREEMENT OF NAPLES LAKES COUNTRY CLUB, L.L.C. A Florida Limited Liability Company Adopted as of November 22, 1999 TABLE OF CONTENTS Page ARTICLE I ORGANIZATION.........................................................1 1.1 FORMATION...............................................................1 1.2 ARTICLES OF ORGANIZATION................................................1 1.3 NAME....................................................................1 1.4 TERM....................................................................1 1.5 PRINCIPAL OFFICE........................................................1 1.6 MEMBER..................................................................1 ARTICLE II PURPOSE AND BUSINESS OF THE COMPANY.................................2 2.1 PURPOSE.................................................................2 2.2 AUTHORITY OF THE COMPANY ...............................................2 ARTICLE III CONTRIBUTIONS TO CAPITAL AND CAPITAL ACCOUNTS .....................2 3.1 INITIAL CONTRIBUTIONS ..................................................2 3.2 ADDITIONAL CAPITAL CONTRIBUTIONS .......................................2 3.3 CAPITAL ACCOUNTS .......................................................2 3.4 LOANS...................................................................2 ARTICLE IV PROFIT, LOSS, AND DISTRIBUTIONS.....................................2 4.1 DETERMINATION OF PROFIT OR LOSS ........................................2 4.2 COSTS AND EXPENSES .....................................................3 4.3 ALLOCATION .............................................................3 4.4 DISTRIBUTABLE AMOUNTS ..................................................3 4.5 LIQUIDATING DISTRIBUTIONS ..............................................3 ARTICLE V DURATION, LIQUIDATION, AND TERMINATION ..............................3 5.1 DURATION OF COMPANY ....................................................3 5.2 LIQUIDATION ............................................................3 5.3 ARTICLES OF DISSOLUTION ................................................3 ARTICLE VI MANAGEMENT AND INDEMNIFICATION .....................................4 6.1 MANAGEMENT AND CONTROL .................................................4 6.2 CERTAIN LIMITATIONS . ..................................................4 6.3 PERSONAL SERVICES ......................................................5 6.4 LIABILITY AND INDEMNIFICATION ..........................................5 ARTICLE VII TRANSFER OF INTEREST AND ADDITIONAL MEMBERS .......................5 7.1 TRANSFERS ..............................................................5 7.2 RIGHTS OF ASSIGNEE .....................................................5 7.3 ADDITIONAL MEMBERS .....................................................5 ARTICLE VIII BOOKS, RECORDS, ACCOUNTING, AND TAX ELECTIONS ....................5 8.1 BOOKS AND RECORDS ......................................................5 8.2 CUSTODY OF FUNDS .......................................................6 8.3 ACCOUNTANTS ............................................................6 8.4 FISCAL YEAR ............................................................6 8.5 ANNUAL REPORT ..........................................................6 ARTICLE IX DEFINITIONS.........................................................6 9.1 "ACT"...................................................................6 9.2 "AGREEMENT".............................................................6 9.3 "CODE"..................................................................6 9.4 "COMPANY"...............................................................6 9.5 "MANAGER"...............................................................6 9.6 "MEMBER"................................................................6 9.7 "MEMBERSHIP INTEREST"...................................................6 9.8 "MEMBERSHIP RIGHTS".....................................................6 9.9 "PERSON"................................................................7 ARTICLE X GENERAL PROVISIONS ..................................................7 10.1 CAPTIONS................................................................7 10.2 VARIATIONS OF PRONOUNS .................................................7 10.3 CONSTRUCTION ...........................................................7 10.4 SEVERABILITY ...........................................................7 -ii- OPERATING AGREEMENT OF NAPLES LAKES COUNTRY CLUB, L.L.C. THIS OPERATING AGREEMENT (the "Agreement") is entered into by and between TBI/NAPLES LIMITED PARTNERSHIP, a Florida limited partnership (hereinafter referred to as the "Member"), RALPH REINERT (hereinafter referred to as the Manager) and NAPLES LAKES COUNTRY CLUB, L.L.C., a Florida limited liability company (hereinafter referred to as the "Company"). ARTICLE I ORGANIZATION 1.1 FORMATION. The undersigned Member hereby forms the Company pursuant to the provisions of Chapter 608, Florida Statutes (the "Florida Limited Liability Company Act" or "Act"), and any successor statute, as amended from time to time. 1.2 ARTICLES OF ORGANIZATION. The Member has caused Articles of Organization to be prepared, executed, and filed with the Florida Secretary of State for the formation of the Company. Any and all amendments to the Articles required by law to be filed and recorded hereafter for any reason shall be filed by the Company in such office or offices as are required under the laws of the State of Florida or elsewhere. The Company shall do all other acts and things that may now or hereafter be required for the perfection and continuation of the Company as a limited liability company under the laws of the State of Florida or necessary in order to protect the limited liability of the Member under the laws of the State of Florida or elsewhere. 1.3 NAME. The name of the Company is NAPLES LAKES COUNTRY CLUB, L.L.C. All Company business must be conducted in such name or other names that comply with applicable law as the Member may, in its sole discretion, select from time to time. If the Company does business under a name other than that set forth in its Articles of Organization, then the Company shall file a fictitious name registration as required by law. 1.4 TERM. The term of the Company commenced on the filing of the Articles of Organization with the Florida Secretary of State and shall continue until terminated in accordance with the provisions of this Agreement or by operation of law. 1.5 PRINCIPAL OFFICE. The principal office of the Company shall be maintained at 28341 S. Tamiami Trail, Suite D, Bonita Springs, FL 34134, or at such other place which the Member, in its sole discretion, determines. 1.6 MEMBER. The name of the sole Member of the Company is TBI/NAPLES LIMITED PARTNERSHIP. The present mailing address of the sole Member of the Company is 28341 S. Tamiami Trail, Suite D, Bonita Springs, FL 34134. The Member shall own 100% of the Membership Rights in the Company, including 100% of the Membership Interests. ARTICLE II PURPOSE AND BUSINESS OF THE COMPANY 2.1 PURPOSE. The purpose of the Company is to own and operate a golf course and country club. The Company may also engage in any or all lawful business for which limited liability companies may be organized under the Act. 2.2 AUTHORITY OF THE COMPANY. This Company shall have the powers and authority to do all things necessary to carry out its business and affairs as authorized by the Act. ARTICLE III CONTRIBUTIONS TO CAPITAL AND CAPITAL ACCOUNTS 3.1 INITIAL CONTRIBUTIONS. Upon the execution of this Agreement, the Member shall contribute to the Company the cash and property (other than cash) set forth on Schedule "A". 3.2 ADDITIONAL CAPITAL CONTRIBUTIONS. The Member shall not be required to contribute any additional capital to the Company, and except as set forth in the Act, no Member shall have any personal liability for any obligations of the Company. 3.3 CAPITAL ACCOUNTS. A capital account shall be maintained by the Company for the Member. 3.4 LOANS. (a) Loan Terms. The Member may, at any time, make or cause a loan to be made to the Company in any amount and on those terms upon which the Company and the Member agree. Such funds shall represent a debt, payable on demand, unless otherwise specifically provided, from the Company to the Member making the loan. (b) Repayment of Loans. Distributions of cash to the Member in repayment of loans made by the Member shall be made pursuant to the terms of such loans, but all distributions shall be subject to maintaining the Company in a sound financial condition, including the establishment of reserves reasonably required in the judgment of the Manager for the proper operation of the business of the Company. ARTICLE IV PROFIT, LOSS, AND DISTRIBUTIONS 4.1 DETERMINATION OF PROFIT OR LOSS. The items of income, gains, expenses, deductions, losses and credits generated by the Company for federal income tax purposes shall be determined in accordance with a generally accepted method of accounting as soon as practicable after the close of the fiscal year of the Company. -2- 4.2 COSTS AND EXPENSES. The Company shall pay all expenses of the Company (which expenses shall be billed directly to the Company) which may include but are not limited to: (i) legal, audit, accounting and other fees; (ii) expenses and taxes incurred in connection with the issuance, distribution and transfer of documents evidencing ownership of an interest in the Company or in connection with the business of the Company; (iii) expenses of organizing, revising, amending, converting, modifying or terminating the Company; (iv) expenses in connection with distributions made by the Company to, and communications and bookkeeping work necessary in maintaining relations with, the Members; and (v) costs of any accounting, statistical or bookkeeping equipment necessary for the maintenance of the books and records of the Company. 4.3 ALLOCATION. The net profits, net gains and net losses generated by the Company, for each taxable year of the Company, shall be allocated to the Member. 4.4 DISTRIBUTABLE AMOUNTS. The Company may make distribution of any amount in excess of its reasonable operating requirements as determined by the Manager. Notwithstanding the foregoing, no distribution shall be made unless after the distribution the Company retains assets sufficient to pay all its debts as they become due and such distribution, if made, would not cause the Company to otherwise become insolvent. 4.5 LIQUIDATING DISTRIBUTIONS. In the event of liquidation of the Company, the assets of the Company shall be distributed in accordance with Section 5:? hereinafter. ARTICLE V DURATION, LIQUIDATION, AND TERMINATION 5.1 DURATION OF COMPANY. The Company shall continue in existence until the Member, in its sole discretion, determines to dissolve the Company. 5.2 LIQUIDATION. In the event of dissolution of the Company, the Manager shall wind up the affairs of the Company and shall distribute the assets of the Company in the following order of priority: (a) To creditors, including any Member who is a creditor, to the extent permitted by law in satisfaction of the Company's debts and liabilities whether by payment or establishment of reserves, other than liabilities for distributions to the Member under Sections 608.426 or 608.427 of the Act; then (b) The remainder, if any, to the Member or to its successors or assigns. 5.3 ARTICLES OF DISSOLUTION. In the event the Company is dissolved, Articles of Dissolution shall be promptly filed with the Florida Secretary of State. If there are no remaining Members, the Articles of Dissolution shall be filed by the last Person to be a Member; if there are no remaining Members or a Person who last was a Member, the Articles shall be filed by the legal or personal representative of the Person who last was a Member. -3- ARTICLE VI MANAGEMENT AND INDEMNIFICATION 6.1 MANAGEMENT AND CONTROL. The management and control of the Company shall be vested in the Manager. Except as otherwise provided in this Agreement, the Manager may be appointed, removed or replaced by the Member at any time. Except as otherwise provided in this Agreement or by law, the Manager shall have full and exclusive authority in the management and control of the Company, and shall have all the rights and powers which are otherwise conferred by law or are necessary or advisable for the discharge of its duties and the management of the business and affairs of the Company. 6.2 CERTAIN LIMITATIONS. Notwithstanding the generality of the foregoing, and in addition to other acts expressly prohibited by this Agreement or by law, the Manager, without the prior written consent or approval of the Member, may not cause the Company to do any of the following: (a) amend or restate the Articles of Organization or this Agreement; (b) sell, lease, exchange or otherwise dispose of all or substantially all the Company's property and assets; (c) be a party to (i) a merger, (ii) interest exchange or (iii) other transaction effecting the ownership or structure of the Company; (d) incur any indebtedness (i) in any one transaction or series of transaction in excess of $10,000 or (ii) that requires the guarantee thereof by the Member; (e) assign, mortgage, pledge or otherwise encumber in any fiscal year in any one transaction or series of similar transactions any assets having a value of more than $10,000; (f) sell or otherwise dispose of or acquire in any one transaction or series of similar transactions any property or services having a value in excess of $10,000; (g) conduct business, or qualify to conduct business, in any jurisdiction other than Florida; (h) adopt or amend any business plan or budget for the Company or deviate in any material way from any such business plan or budget then in effect; or (i) approve the issuance of additional Membership Interests or the admission of a Substituted Member. (j) do any act in contravention of this Agreement; (k) do any act which would make it impossible to carry on the ordinary business of the Company, except as expressly provided in this Agreement; -4- (l) confess a judgment against the Company; . (m) execute or deliver any general assignment for the benefit of the creditors of the Company; (n) assign rights in specific Company property for other than a Company purpose; and (o) knowingly or willingly do any act (except an act expressly required by this Agreement) which would cause the Company to become an association taxable as a corporation. 6.3 PERSONAL SERVICES. The Member shall not be required to perform services for the Company solely by virtue of being a Member. 6.4 LIABILITY AND INDEMNIFICATION. Neither the Member nor the Manager shall be liable, responsible, or accountable, in damages or otherwise, to the Company for any act performed by it with respect to Company matters, except for fraud. The Company shall indemnify the Manager and Member to the fullest extent allowed by law for any act performed by the Manager or Member with respect to Company matters, except for fraud. The Company may maintain insurance, at its expense, to protect itself, the Manager and the Member against all fines, liabilities, costs and expenses, including attorneys' fees, whether or-not the Company would have the legal power to indemnify the Manager or Member directly against such liability. ARTICLE VII TRANSFER OF INTEREST AND ADDITIONAL MEMBERS 7.1 TRANSFERS. The Member may transfer all, or any portion of, its Membership Interest or its other Membership Rights to one or more successors. For purposes of this Article VII, the term "transfer" shall mean to voluntarily sell, hypothecate, pledge, assign, or otherwise transfer. 7.2 RIGHTS OF ASSIGNEE. In the event of any transfer of all or any part of the Member's Membership Interest to a successor, the successor shall thereupon become a Member and the Company shall continue in existence. 7.3 ADDITIONAL MEMBERS. The Member may, in its sole discretion, determine to admit additional Members. ARTICLE VIII BOOKS, RECORDS, ACCOUNTING, AND TAX ELECTIONS 8.1 BOOKS AND RECORDS. Unless the Member, in its sole discretion, determines otherwise, the books and records of the Company, if any, shall be maintained on a cash basis in accordance with generally accepted accounting principles, consistently applied. These and all other records of the Company required to be kept pursuant to Section 608.4101 of the Act, shall be kept at the registered office of the Company. -5- 8.2 CUSTODY OF FUNDS. (a) The Manager shall have fiduciary responsibility for the safekeeping and use of all funds and assets of the Company, whether or not in the immediate possession or control of the Manager. The funds of the Company shall not be commingled with the funds of any other Person and the. Manager shall not employ, or permit any other Person to employ, such funds in any manner except for the benefit of the Company. (b) All funds of the Company not otherwise invested shall be deposited in one or more accounts maintained in such banking institutions as the Manager shall determine, and withdrawals shall be made only in the regular course of Company business. 8.3 ACCOUNTANTS. The accountants for the Company shall be such certified public accountants as shall be selected by the Manager. The accountants shall certify, in accordance with generally accepted accounting principles, the financial statements of the Company. 8.4 FISCAL YEAR. The fiscal year of the Company shall be the calendar year. 8.5 ANNUAL REPORT. The Company shall file an annual report with the Florida Secretary of State each year in the form provided by the Secretary of State. ARTICLE IX DEFINITIONS 9.1 "Act" means the Florida Limited Liability Company Act, as amended from time to time. 9.2 "Agreement" means this Operating Agreement, as amended, modified, or supplemented from time to time. 9.3 "Code" means the Internal Revenue Code of 1986, as amended, or any corresponding provision of any succeeding law. 9.4 "Company" means the limited liability company organized in accordance with this Agreement. 9.5 "Manager" means the Person signing this Agreement as the Manager and any Person who is subsequently appointed by the Member as a Manager. 9.6 "Member" means the Person signing this Agreement as the Member and any Person who subsequently is admitted as a member of the Company. 9.7 "Membership Interest" means a Person's share of the profits and losses of, and the right to receive distributions from, the Company. 9.8 "Membership Rights" means all of the rights of a Member in the Company, including a Member's: (i) Membership Interest; (ii) right to inspect the Company's books and records; and (iii) right to approve or disapprove matters coming before the Company as provided in this Agreement. -6- 9.9 "Person" means and includes an individual, corporation, partnership, association, limited liability company, trust, estate, or other entity. ARTICLE X GENERAL PROVISIONS 10.1 CAPTIONS. Section titles or captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way define, limit, extend or describe the scope of this Agreement, or the intent of any provision hereof. 10.2 VARIATIONS OF PRONOUNS. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the Person may in the context require. 10.3 CONSTRUCTION. This Agreement shall be interpreted in accordance with the laws of the State of Florida. 10.4 SEVERABILITY. Every .provision of this Agreement is intended to be severable. If any term or provision is illegal or invalid for any. reason, such illegality or invalidity will not affect the validity of the remainder of this Agreement. IN WITNESS WHEREOF, the Member, the Manager and the Company have executed this Agreement, effective as of the 22nd day of November, 1999. WITNESSES: MEMBER: TBI/NAPLES LIMITED PARTNERSHIP, a Florida Limited Partnership By: TOLL FL GP CORP., a Florida corporation, its General Partner Barbara Lampe By: Edward D. Weber - ------------------------------- ------------------------------- Print Name: Barbara Lampe Name: Edward D. Weber ------------------- ----------------------------- Its: Vice President ------------------------ Edna E. Ganley - ------------------------------- Print Name: Edna E. Ganley MANAGER: ------------------- Art Friedman Ralph Reinert - ------------------------------- --------------------------------------- Print Name: Art Freidman Ralph Reinert ------------------- -7- Pat Garelick - ------------------------------- Print Name: Pat Garelick COMPANY: ------------------- NAPLES LAKES COUNTRY CLUB, L.L.C., a Florida limited liability Company By: TBI/NAPLES LIMITED PARTNERSHIP, a Florida limited partnership, its Sole Member By: TOLL FL GP CORP., a Florida corporation, its General Partner By: Edward D. Weber -------------------------- Name: Edward D. Weber ------------------------ Its: Vice President ------------------------- Barbara Lampe - ------------------------------- Print Name: Barbara Lampe ------------------- Edna E. Ganley - ------------------------------- Print Name: Edna E. Ganley ------------------- -8- EX-3.88 84 ex3-88.txt EXHIBIT 3.88 Exhibit 3.88 ARTICLES OF ORGANIZATION OF NAPLES TBI REALTY, LLC 1. Name. The name of this limited liability company is Naples TBI Realty LLC, a Florida limited liability company (the "Company"). 2. Duration. The Company shall have perpetual existence, commending on January 1, 2001. 3. Purpose. The Company is organized for the purpose of transacting all lawful activities and businesses that may be conducted by a limited liability company under the laws of Florida. 4. Place of Business. The mailing and street address of the Company's principal office is 28341 S. Tamiami Trail, Bonita Springs, Florida 34134. 1. Registered Agent and Office. The name, of the initial registered agent of the Company is C. Perry Peeples, Esq. The street address of the initial registered agent of the Company is 8889 Pelican Bay Boulevard, Suite 300, Naples, Florida 34108. 5. Contributions to the Company. The total amount of cash initially contributed to the Company by the member(s) is ten dollars ($10.00). No additional contributions have been agreed upon. 6. Additional Members. Additional members to the Company may be admitted, but only upon the unanimous consent of all members of the Company at the time admission is sought. 7. Termination of Membership. Upon the death, retirement, resignation, expulsion, bankruptcy or dissolution of a member or upon the occurrence of any other event which terminates the continued membership of a member in the Company, the Company shall be dissolved unless the remaining members, by unanimous written agreement, consent to continue the business of the Company. 8. Management of the Company. The Company shall be managed by one or more managers. The name and address of the initial manager, who shall serve until the first annual meeting of the members or until his successors axe elected and qualified, is: Toll Bros., Inc. 28341 S. Tamiami Trail Bonita Springs, Florida 34134 9. Regulations. The members shall have the power to adopt, alter, amend, or repeal the operating agreement of the Company containing provisions for the regulation and management of the affairs of the Company. 10. Voting. The Company is authorized to issue membership units with voting rights and membership units without voting rights. The undersigned executed these Articles of Organization effective as of the lst day of January, 2001. Toll Bros., Inc., a Pennsylvania Corporation By: Ralph E. Reinert ------------------------------------ Printed Name: Ralph E. Reinert --------------------------- Title: V.P. ----------------------------------------- EX-3.89 85 ex3-89.txt EXHIBIT 3.89 Exhibit 3.89 STATE OF FLORIDA ARTICLES OF INCORPORATION OF TOLL FL GP CORP. FIRST: THE CORPORATE NAME THAT SATISFIED THE REQUIREMENTS OF SECTION 607.0401 IS: Toll FL GP Corp. SECOND: THE STREET ADDRESS OF THE INITIAL PRINCIPAL OFFICE AND, IF DIFFERENT, THE MAILING ADDRESS OF THE CORPORATION IS: 3103 Philmont Avenue, Huntingdon Valley, PA 19006 THIRD: THE NUMBER OF SHARES THE CORPORATION IS AUTHORIZED TO ISSUE IS: 1,000 common shares, $1.00 par value *FOURTH: (a) IF THE SHARES ARE TO BE DIVIDED INTO CLASSES, THE DESIGNATION OF EACH CLASS IS: N/A ----------------------------- ----------------------------- ----------------------------- ----------------------------- ----------------------------- ----------------------------- (b) STATEMENT OF THE PREFERENCES, LIMITATIONS AND RELATIVE RIGHTS IN RESPECT OF THE SHARES OF EACH CLASS: N/A
CLASS PREFERENCES LIMITATIONS RELATIVE RIGHTS ----- ----------- ----------- --------------- - ------------------ ------------------ ------------------ ------------------ - ------------------ ------------------ ------------------ ------------------
*FIFTH: (a) IF THE CORPORATION IS TO ISSUE THE SHARES OF ANY PREFERRED OR SPECIAL CLASS IN SERIES, THE DESIGNATION OF EACH SERIES IS: N/A ----------------------------- ----------------------------- ----------------------------- ----------------------------- ----------------------------- ----------------------------- (*Optional) (FLA - 1959 - 7/14/93) (b) STATEMENT OF THE VARIATIONS IN THE RELATIVE RIGHTS AND PREFERENCES AS BETWEEN SERIES INSOFAR AS THE SAME ARE TO BE FIXED IN THE ARTICLES OF INCORPORATION: N/A SERIES RELATIVE RIGHTS PREFERENCES ------ --------------- ----------- - ------------------ ------------------ ------------------ - ------------------ ------------------ ------------------ (c) STATEMENT OF ANY AUTHORITY TO BE VESTED IN THE BOARD OF DIRECTORS TO ESTABLISH SERIES AND FIX AND DETERMINE THE VARIATIONS IN THE RELATIVE RIGHTS AND PREFERENCES BETWEEN SERIES: N/A ------------------------------------------------------------------- ------------------------------------------------------------------- ------------------------------------------------------------------- SIXTH: PROVISIONS GRANTING PREEMPTIVE RIGHTS ARE: N/A SEVENTH: PROVISIONS FOR THE REGULATION OF THE INTERNAL AFFAIRS OF THE CORPORATION ARE: N/A EIGHTH: THE STREET ADDRESS OF THE INITIAL REGISTERED OFFICE OF THE CORPORATION IS C/O C T CORPORATION SYSTEM, 1200 SOUTH PINE ISLAND ROAD, CITY OF PLANTATION, FLORIDA 33324, AND THE NAME OF ITS INITIAL REGISTERED AGENT AT SUCH ADDRESS IS C T CORPORATION SYSTEM. *NINTH: THE NUMBER OF DIRECTORS CONSTITUTING THE INITIAL BOARD OF DIRECTORS OF THE CORPORATION IS __________, AND THE NAMES AND ADDRESSES OF THE PERSONS WHO ARE TO SERVE AS DIRECTORS UNTIL THE FIRST ANNUAL MEETING OF SHAREHOLDERS OR UNTIL THEIR SUCCESSORS ARE ELECTED AND SHALL QUALIFY ARE: (FLA - 1959) -2- TENTH: THE NAME AND ADDRESS OF EACH INCORPORATOR IS: Elizabeth Beavers 3103 Philmont Ave. Huntingdon Valley, PA 19006 THE UNDERSIGNED HAS (HAVE) EXECUTED THESE ARTICLES OF INCORPORATION THIS 9TH DAY OF NOVEMBER, 1994. Elizabeth Beavers -------------------------------------------- SIGNATURE/TITLE Elizabeth Beavers, Incorporator -------------------------------------------- SIGNATURE/TITLE -------------------------------------------- SIGNATURE/TITLE ACCEPTANCE BY THE REGISTERED AGENT AS REQUIRED IN SECTION 607.0501 (3) F.S.: C T CORPORATION SYSTEM IS FAMILIAR WITH AND ACCEPTS THE OBLIGATIONS PROVIDED FOR IN SECTION 607.0505. C T CORPORATION SYSTEM DATED: November 8, 1994 BY Domenic A. Borriello ----------------------------------------- BY Domenic A. Borriello ----------------------------------------- (TYPE NAME OF OFFICER) Assistant Secretary ----------------------------------------- (TITLE OF OFFICER) (FLA - 1959) -3- EX-3.90 86 ex3-90.txt EXHIBIT 3.90 Exhibit 3.90 ARTICLES OF AMENDMENT OF FEYS PROPERTY LLC THIS IS TO CERTIFY THAT: Feys Property LLC (the "Company") desires to amend and restate its Articles of Organization as currently in effect. Therefore, the Articles of Organization of the Company are hereby amended and restated by striking out in entirety the existing Articles and substituting in lieu thereof the following: FIRST: The name of the limited liability company is "Feys Property LLC." SECOND: The Company's purposes are (1) to hold for investment and, when deemed appropriate by the Company's general managers, to sell the real property and improvements thereon known as the Feys Property and (2) to carry on any and all business, transactions and activities incidental or related thereto, which may be deemed desirable by the Company, to the fullest extent empowered and permitted by law. THIRD: The address of the principal office of the Company in this State is 3312 Paper Mill Road, P.O. Box 400, Phoenix, Maryland 21131. FOURTH: The name and address of the resident agent of the Company are Resagent, Inc., 7 St. Paul Street, Suite 1400, Baltimore, Maryland 21202. The resident agent is a Maryland corporation. FIFTH: Pursuant to ss.4A-402(b)(1)(ii) of the Maryland Limited Liability Company Act (the "Act"), the affairs of the Company and the conduct of its business shall be governed by the provisions of an operating agreement, which shall be initially agreed to by all members, and any amendments thereto, all of which shall be in writing. SIXTH: Pursuant to ss.4A-401(a)(3) of the Act, no member of the Company shall be an agent of the Company solely by virtue of being a member, and no member shall have authority to act for the Company solely by virtue of being a member. The authority of any member of the Company to act for or on behalf of the Company shall be set forth in the operating agreement. The foregoing amendment was approved by the vote and in the manner required by the Operating Agreement of the Company. IN WITNESS WHEREOF, I have signed these Articles of Amendment on behalf of the Company this 4th day of January, 1999. GAYLORD BROOKS INVESTMENT CO., INC. By: Richard A. Moore ------------------------------- Richard A. Moore, President -2- EX-3.91 87 ex3-91.txt EXHIBIT 3.91 Exhibit 3.91 BY-LAWS OF TOLL PEPPERTREE, INC. ---------------- ARTICLE I - OFFICES Section 1. Principal Office: The principal office of the corporation shall be in the city of Huntingdon Valley County of Montgomery. Section 2. Other Offices: The corporation may have such other offices and places of business, within or without the State of New York, as shall be determined by the directors. ARTICLE II - SHAREHOLDERS Section 1. Meetings of Shareholders: Meetings of shareholders may be held at such place, within or without this state, as may be fixed by the directors and stated in the notice of the meeting. A meeting of shareholders shall be held annually for the election of directors and the transaction of other business on the 11th of March at 4:00 o'clock p.m. Section 2. Special Meetings: Special meetings of the shareholders may be called by the board or by the president or secretary and must be called upon receipt by either of them of the written request of the holders of twenty-five percent of the stock then outstanding and entitled to vote. At any such special meeting only such business may be transacted which is related to the purpose or purposes set forth in the notice. Section 3. Special Meeting for Election of Directors: If, for a period of one month after the date fixed by these By-Laws for the annual meeting of shareholders, there is a failure to elect a sufficient number of directors to conduct the business of the corporation, the board shall call a special meeting for the election of directors. If such special meeting is not called by the board within two weeks after the expiration of such period or if it is so called but there is a failure to elect such directors for a period of two months after the expiration of such period, holders of ten percent of the shares entitled to vote in an election of directors may, in writing, demand the call of a special meeting for the election of directors specifying the date and month thereof, which shall not be less than sixty nor more than ninety days from the date of such written demand. The secretary of the corporation upon receiving the written demand shall promptly give notice of such meeting, or if he fails to do so within five business days thereafter, any shareholder signing such demand may give such notice. The meeting shall be held at the office of the corporation. At any such special meeting called on demand of shareholders, the shareholders attending, in person or by proxy, and entitled to vote in an election of directors shall constitute a quorum for the purpose of electing directors, but not for the transaction of any other business. Section 4. Fixing Record Date: For the purpose of determining the shareholders entitled to notice of or to vote at any adjournment thereof, or to express consent to or dissent from any proposal without a meeting, or for the purpose of determining shareholders entitled to receive payment of any dividend or the allotment of any rights, or for the purpose of any other action, the By-Laws may provide for fixing or, in the absence of such provision, the board may fix, in advance, a date as the record date for any such determination of shareholders. Such date shall not be less than ten days before the date of such meeting nor more than fifty days prior to any other action. If no record date is fixed: (1) The record date for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders shall be at the close of business on the date next preceding the day on which notice is given, or, if no notice is given, the day on which the meeting is held. (2) The record date for determining shareholders for any purpose other than that specified in subparagraph (1) shall be at the close of business on the day on which the resolution of the board relating thereto is adopted. When a determination of shareholders of record entitled to notice of or to vote at any meeting of shareholders has been made as provided in this section, such determination shall apply to any adjournment thereof, unless the board fixes a new record date under this section for the adjourned meeting. Section 5. Notice of Meetings of Shareholders: Whenever shareholders are required or permitted to take any action at a meeting, written notice shall be given stating the place, date and hour of the meeting and, unless it is the annual meeting, indicate that it is being issued by or at the direction of the person or persons calling the meeting. Notice of a special meeting shall also state the purpose or purposes for which the meeting is called. A copy of the notice of any meeting shall be given, personally or by mail, not less than ten nor more than fifty days before the date of the meeting, to each shareholder entitled to vote at such meeting. If mailed, such notice is given when deposited in the United States mail, with postage thereon prepaid, directed to the shareholder at his address as it appears on the record of shareholders, or, if he shall have filed with the secretary of the corporation a written request that notice to him be mailed to some other address, then directed to him at such other address. An affidavit of the secretary or other person giving the notice or of a transfer agent of the corporation that the notice required by this section has been given shall, in the absence of fraud, be prima facie evidence of the facts therein stated. Such mailing shall be by first class mail except when otherwise required by law. When a meeting is adjourned to another time or place, it shall not be necessary to give any notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken, and at the adjourned meeting any business may be transacted that might have been transacted on the original date of the meeting. However, if after the adjournment the board fixes a new record date for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record on the new record date entitled to notice under the first paragraph of this section. Section 6. Waivers of Notice: Notice of meeting need not be given to any shareholder who submits a signed waiver of notice, in person or by proxy, whether before or after the meeting. The attendance of any shareholder at a meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him. Section 7. List of Shareholders at Meetings: A list of shareholders as of the record date, certified by the corporate officer responsible for its preparation or by a transfer agent, shall be produced at any meeting of shareholders upon the request thereat or prior thereto of any shareholder. If the right to vote at any meeting is challenged, the inspectors of election, or person presiding thereat, shall require such list of shareholders to be produced as evidence of the right of the persons challenged to vote at such meeting, and all persons who appear from such list to be shareholders entitled to vote thereat may vote at such meeting. Section 8. Quorum of Shareholders: The holders of a majority of the shares entitled to vote thereat shall constitute a quorum at a meeting of shareholders for the transaction of any business, provided that when a specified item of business is required to be voted on by a class or series, voting as a class, the holders of a majority of the shares of such class or series shall constitute a quorum for the transaction of such specified item of business. When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any shareholders. The shareholders present may adjourn the meeting despite the absence of a quorum. Section 9. Written Consent of Shareholders Without a Meeting: Whenever shareholders are required or permitted to take any action by vote, such action may be taken without a meeting on written consent, setting forth the action so taken, signed by the holders of all outstanding shares entitled to vote thereon. This paragraph shall not be construed to alter or modify the provisions of any section of the New York Business Corporation Law or any provision in a certificate of incorporation not inconsistent therewith under which the written consent of the holders of less than all outstanding shares is sufficient for corporate action. Written consent thus given by the holders of all outstanding shares entitled to vote shall have the same effect as a unanimous vote of shareholders and any certificate with respect to the authorization or taking of any such action which is to be delivered to the department of state shall recite that the authorization was by unanimous written consent. ARTICLE III - DIRECTORS Section 1. The business of this corporation shall be managed under the direction of its board of directors, each of whom shall be at least eighteen years of age. Section 2. Number of Directors: The number of directors constituting the entire board shall not be less than three, except that where all the shares of the corporation are owned beneficially and of record by less than three shareholders, the number of directors may be less than three but not less than the number of shareholders. The number of directors may be increased or decreased by amendments of these By-Laws, or by action of the shareholders or by majority of the board of directors, but no decrease shall shorten the term of any incumbent director. Each director shall hold office for the term of year and until his successor has been elected and qualified. Section 3. Quorum of Directors: Unless a greater proportion is required by the certificate of incorporation, a majority of the entire board shall constitute a quorum for the transaction of business or of any specified item of business, except that the certificate of incorporation may fix the quorum at less than a majority of the entire board but not less than one-third thereof. Section 4. Action by the Board: Except as otherwise provided by law, any reference to corporate action to be taken by the board shall mean such action at a meeting of the board. Unless otherwise restricted by the certificate of incorporation any action required or permitted to be taken by the board or any committee thereof may be taken without a meeting if all members of the board or the committee consent in writing to the adoption of a resolution authorizing the action. The resolution and the written consents thereto by the members of the board or committee shall be filed with the minutes of the proceedings of the board or committee. Any one or more members of the board or any committee thereof may participate in a meeting of such board or committee by means of conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting. Except as otherwise provided by law, the vote of a majority of the directors present at the time of the vote, if a quorum is present at such time, shall be the act of the board. Section 5. Place and Time of Meetings of the Board: Meetings of the board, regular or special, may be held at any place within or without this state. An annual meeting of the board shall be held at the registered office on. A notice, or waiver of notice, need not specify the purpose of any regular or special meeting of the board. Notice of a meeting need not be given to any director who submits a signed waiver of notice whether before or after the meeting, or who attends the meeting without protesting, prior thereto or at its commencement, the lack of notice to him. A majority of the directors present, whether or not a quorum is present, may adjourn any meeting to another time and place. Notice of any adjournment of a meeting of the board to another time or place shall be given to the directors who were not present at the time of the adjournment and, unless such time and place are announced at the meeting, to the other directors. Section 6. Executive Committee and other Committees: The board of directors, by resolution adopted by a majority of the entire board, may designate from among its members an executive committee and other committees, each consisting of three or more directors, and each of which, to the extent provided in the resolution shall have all the authority of the board, except that no such committee shall have authority as to the following: (1) The submission to shareholders of any action that needs shareholders' authorization. (2) The filling of vacancies in the board of directors or in any committee. (3) The fixing of compensation of the directors for serving on the board or on any committee. (4) The amendment or repeal of the By-Laws, or the adoption of new By-Laws. (5) The amendment or repeal of any resolution of the board which by its terms shall not be so amendable or repealable. The board may designate one or more directors as alternate members of any such committee, who may replace any absent member or members at any meeting of such committee. Each such committee shall serve at the pleasure of the board. The designation of any such committee, the delegation thereto of authority, or action by any such committee pursuant to such authority shall not alone constitute, performance by any member of the board who is not a member of the committee in question of his duty to the corporation. ARTICLE IV - VOTING AND PROXIES Section 1. Proxies: Every shareholder entitled to vote at a meeting of shareholders or to express consent or dissent without a meeting may authorize another person or persons to act for him by proxy. Every proxy must be signed by the shareholder or his attorney-in-fact. No proxy shall be valid after the expiration of eleven months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the shareholder executing it, except as otherwise provided by law. The authority of the holder of a proxy to act shall not be revoked by the incompetence or death of the shareholder who executed the proxy unless, before the authority is exercised, written notice of any adjudication of such incompetence or of such death is received by the corporate officer responsible for maintaining the list of shareholders. Except when other provision shall have been made by written agreement between the parties, the record holder of shares which he holds as pledgee or otherwise as security or which belong to another, shall issue to the pledgor or to such owner of such shares, upon demand therefor and payment of necessary expenses thereof, a proxy to vote or take other action thereon. A shareholder shall not sell his vote or issue a proxy to vote to any person for any sum of money or anything of value. A proxy which is entitled "irrevocable proxy" and which states that it is irrevocable, is irrevocable when it is held by any of the following or a nominee of any of the following: (1) A pledgee; (2) A person who has purchased or agreed to purchase the shares; (3) A creditor or creditors of the corporation who extend or continue credit to the corporation in consideration of the proxy if the proxy states that it was given in consideration of such extension or continuation of credit, the amount thereof, and the name of the person extending or continuing credit; (4) A person who has contracted to perform services as an officer of the corporation, if a proxy is required by the contract of employment, if the proxy states that it was given in consideration of such contract of employment, the name of. the employee and the period of employment contracted for. Notwithstanding a provision in a proxy, stating that it is irrevocable, the proxy becomes revocable after the pledge is redeemed, or the debt of the corporation is paid, or the period of employment provided for the contract of employment has terminated, and in a case provided for in subparagraphs (3) or (4), becomes revocable three years after the date of the proxy or at the end of the period, if any, specified therein, whichever period is less, unless the period of irrevocability is renewed from time to time by the execution of a new irrevocable proxy as provided in this section. This paragraph does not affect the duration of a proxy under the second paragraph of this section. A proxy may be revoked, notwithstanding a provision making it irrevocable, by a purchaser of shares without knowledge of the existence of the provision unless the existence of the proxy and its irrevocability is noted conspicuously on the face or back of the certificate representing such shares. Section 2. Qualification of Voters: Every shareholder of record shall be entitled at every meeting of shareholders in person or by proxy to one vote for every share standing in his name on the record of shareholders, unless otherwise provided in the certificate of incorporation. ARTICLE V - OFFICERS Section 1. Executive Officers: The executive officers of the corporation shall be a president, one or more vice presidents, a treasurer and a secretary, all of whom shall be elected annually by the directors, who shall hold office during the pleasure of the directors. In addition, the board of directors may elect a chairman of the board of directors. Any two or more offices may be held by the same person, except the offices of president and secretary. When all of the issued and outstanding stock of the corporation is owned by one person, such person may hold all or any combination of offices. All vacancies occurring among any of the officers shall be filled by the directors. Any officer may be removed at any time by the affirmative vote of a majority (unless the certificate of incorporation required a larger vote) of the directors present at a regular meeting of directors or at a special meeting of directors called for the purpose. Section 2. Other Officers: The board of directors may appoint such other officers and agents with such powers and duties as it shall deem necessary. Section 3. The Chairman of the Board: The chairman of the board of directors, if one be elected, shall preside at all meetings of the board of directors and he shall have and perform such other duties as from time to time may be assigned to him by the board of directors or the executive committee. Section 4. The President: The president, who may, but need not be a director, shall, in the absence or non-election of a chairman of the board, preside at all meetings of the shareholders and directors. While the directors are not in session, he shall have general management and control of the business and affairs of the corporation. Section 5. The Vice President: The vice president, or if there be more than one, the senior vice president, as determined by the board of directors, in the absence or disability of the president, shall exercise the powers and perform the duties of the president and each vice president shall exercise such other powers and perform such other duties as shall be prescribed by the directors. Section 6. The Treasurer: The treasurer shall have custody of all funds, securities and evidences of indebtedness of the corporation; he shall receive and give receipts and acquittances for moneys paid in on account of the corporation, and shall pay out of the funds on hand all bills, payrolls and other just debts of the corporation, of whatever nature, upon maturity; he shall enter regularly in books to be kept by him for that purpose, full and accurate accounts of all moneys received and paid out by him on account of the corporation, and he shall perform all other duties incident to the office of treasurer and as may be prescribed by the directors. Section 7. The Secretary: The secretary shall keep the minutes of all proceedings of the directors and of the shareholders; he shall attend to the giving and serving of all notices to the shareholders and directors or other notice required by law or by these By-Laws; he shall affix the seal of the corporation to deeds, contracts and other instruments in writing requiring a seal, when duly signed or when so ordered by the directors; he shall have charge of the certificate books and stock books and such other books and papers as the board may direct, and he shall perform all other duties incident to the office of secretary. Section 8. Salaries: The salaries of all officers shall be fixed by the board of directors, and the fact that any officer is a director shall not preclude him from receiving a salary as an officer, or from voting upon the resolution providing the same. ARTICLE VI - REMOVAL OF DIRECTORS AND OFFICERS Section 1. Newly Created Directorships and Vacancies: Newly created directorships resulting from an increase in the number of directors and vacancies occurring in the board for any reason except the removal of directors without cause shall be filled by vote of the board. If the number of directors then in office is less than a quorum, such newly created directorships and vacancies may be filled by a vote of a majority of the directors then in office. Vacancies occurring in the board of directors by the removal of directors without cause shall be filled by the shareholders. A director elected to fill a vacancy, unless elected by the shareholders, shall hold office until the next meeting of the shareholders at which the election of directors is in the regular order of business, and until his successor has been elected and qualified. Section 2. Removal of Directors: Any or all of the directors may be removed with or without cause by vote of the shareholders. However, no director may be removed when the votes cast against his removal would be sufficient to elect him if voted cumulatively at an election at which the same total number of votes were cast and the entire board, or the entire class of directors of which he is a member, were then being elected. Section 3. Removal of Officers: Any officer elected or appointed by the board may be removed by the board with or without cause. The removal of an officer without cause shall be without prejudice to his contracts rights, if any. The election or appointment of an officer shall not of itself create contract rights. ARTICLE VII - CAPITAL STOCK Section 1. Certificates Representing Shares: The shares of this corporation shall be represented by certificates signed by the president and the secretary of this corporation, and shall be sealed with the seal of this corporation. The signatures of the officers upon the certificates may be facsimiles if the certificate is countersigned by a transfer agent or registered by a registrar other than the corporation itself or its employee. Section 2. Transfer of Shares: Transfer of shares shall be made only upon the books of the corporation by the registered holder in person or by attorney, duly authorized, and upon surrender of the certificate or certificates of such shares properly assigned for transfer. Section 3. Lost or Destroyed Certificates: The holder of any certificate representing shares of stock of the corporation may notify the corporation of any loss, theft or destruction thereof, and the board of directors may thereupon, in its discretion, cause a new certificate for the same number of shares, to be issued to such holder upon satisfactory proof of such loss, theft or destruction, and the deposit of indemnity by way of bond or otherwise, in such form and amount and with such surety or sureties as the board of directors may require, to indemnify the corporation against loss or liability by reason of the issuance of such new certificate. ARTICLE VIII - MISCELLANEOUS Section 1. Dividends: The directors may declare dividends from time to time out of surplus only, so that the net assets of the corporation remaining after such declaration, payment or distribution shall at least equal the amount of its stated capital. Section 2. Seal: The directors shall provide a suitable corporate seal which shall be in the charge of the secretary and shall be used as authorized by the By-Laws. Section 3. Fiscal Year: The fiscal year of the corporation shall begin on the first day of. Section 4. Checks, Notes, Etc.: Checks, notes, drafts, bills of exchange and orders for the payment of money shall be signed or endorsed in such manner as shall be determined by the directors. The funds of the corporation shall be deposited in such bank or trust company, and checks drawn against such funds shall be signed in such manner as may be determined from time to time by the directors. Section 5. Disallowed Compensation: Any payments made to an officer or employee of the corporation such as a salary, commission, bonus, interest, rent, travel or entertainment expense incurred by him, which shall be disallowed in whole or in part as a deductible expense by the Internal Revenue Service, shall be reimbursed by such officer or employee to the corporation to the full extent of such disallowance. It shall be the duty of the directors, as a board, to enforce payment of each such amount disallowed. In lieu of payment by the officer or employee, subject to the determination of the directors, proportionate amounts may be withheld from his future compensation payments until the amount owed to the corporation has been recovered. ARTICLE IX - AMENDMENTS Section 1. Shareholders: By-Laws may be adopted, amended or repealed by the vote of shareholders entitled to cast 'at least a majority of the votes which all shareholders are entitled to cast thereon, at any regular or special meeting of the shareholders, duly convened after notice to the shareholders of that purpose. Section 2. Directors: The board of directors, by the affirmative vote of a majority of the members, may alter or amend these By-Laws at any regular meeting of the board or at any special meeting of the board, provided that notice of the proposed alteration or amendment has been given to each director, but By-Laws made by the board may be altered or repealed and new By-Laws made by the shareholders. EX-3.92 88 ex3-92.txt EXHIBIT 3.92 Exhibit 3.92 COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU LIMITED PARTNERSHIP CERTIFICATE In compliance with the requirements of 59 Pa. C.S. Sec. 512 (relating to formation), the undersigned, desiring to form a limited partnership, do this 10th day of December, 1980, hereby certify: 1. The name of the partnership is ROSE HOLLOW CROSSING ASSOCIATES (the "Partnership"). 2. The character of the Partnership business shall be: To acquire real estate, construct certain improvements thereon predominantly for sale, and with respect to that which is not sold, to own, lease and hold the same for investment. 3. The location of the Partnership's principal place of business shall be: 101 Witmer Road, Horsham, PA 19044. 4. The name and place of residence of each General and Limited Partner is designated on Schedule A attached hereto and incorporated herein by reference. (Hereinafter, the General Partner and the Limited Partners designated on Schedule A may sometimes be referred to as the "General Partner" and the "Limited Partners" and sometimes be collectively referred to as the "Partners" and individually referred to as a "Partner"). 5. The term for which the Partnership is to exist shall commence upon the date first above written and shall continue until December 31, 2030, unless sooner dissolved in accordance with the Limited Partnership Agreement (as hereinafter defined). 6. The amount of cash and a description of and the agreed value of other property contributed by each Limited Partner to the Partnership as an initial capital contribution is set forth opposite each such Partner's name on Schedule A. 7. No Limited Partner is required to contribute to the Partnership any additional capital contribution. 8. Capital contributions of the Limited Partners shall be returned only upon dissolution of the Partnership and distribution of its assets, to the extent any then remains, as provided in Article VIII of the Limited Partnership Agreement. 9. The share of the profits or other compensation by way of income which each Limited Partner shall receive by reason of his initial capital contribution (his "Percentage Interest") is also set forth opposite each such Partner's name on Schedule A. Each Limited Partner's Percentage interest is subject, however, to adjustment as provided in Sections 2.2 and 7.7 of the Limited Partnership Agreement. 10. Each Limited Partner's interest in the Partnership is assignable in whole or in part, but only in accordance with the provisions of the Limited Partnership Agreement. The requirements set forth therein include, but are not limited to, the following: (i) the assigning Limited Partner shall give written notice to the General Partner, (ii) the assignee shall agree in writing to be bound by all of the provisions of the Limited Partnership Agreement, to assume all obligations with respect to the assigned interest, and to execute such other instruments as required by the General Partner, and (iii) the assigning Limited Partner shall deliver to the General Partner a satisfactory legal opinion to the effect that the assignment may be legally accomplished without registration under all applicable securities laws; provided, however, that the assigning Limited Partner shall not be relieved of his responsibilities under the Limited Partnership Agreement without the consent of the General Partner. In addition, the right of a Limited Partner to assign his interest is subject to a right of first refusal in favor of the General Partner and the other Limited Partners as more particularly set forth in Section 7.3 of the Limited Partnership Agreement. An assignee of a Limited Partner's interest shall, however, only become a substituted Limited Partner if the terms and conditions set forth in Section 7.4 of the Limited Partnership Agreement are satisfied. -2- 11. The General Partner has the exclusive right to admit additional Limited Partners into the Partnership subject to the terms and conditions provided in Section 7.7 of the Limited Partnership Agreement. 12. No Limited Partner shall have priority over any other Partner as to contributions or compensation by way of income 13. No Limited Partner has the right to demand and receive property other than cash in return for his capital contribution, except in certain limited circumstances. 14. Each Limited Partner does hereby constitute and appoint the General Partner his true and lawful attorney-in-fact, in its name, place and stead, to execute, acknowledge, swear to and file: (a) Any certificate (including, without limitation, this Certificate) or other instrument which may be required to be filed by the Partnership under the laws of any State or of the United States or deemed necessary or desirable to accomplish the purposes of the Partnership; and (b) Any and all instruments, modifications, or cancellations of such certificate or instrument, including without limitation any amendment to this Certificate required to admit any substitute or additional Limited Partner or General Partner, to clarify any incorrect statement herein, or cancel the Limited Partnership Agreement and this Certificate upon the dissolution and termination of the Partnership, all in accordance with the provisions of the Limited Partnership Agreement. This power of attorney, being coupled with an interest, is irrevocable and shall not be revoked by the death, incompetency or dissolution of Party Partner. This power of attorney shall also survive an assignment by a Limited Partner of the whole or any part of the amounts distributable to him pursuant to the Limited Partnership Agreement. If a Limited Partner transfers his Partnership Interest, this power of attorney shall survive the delivery of the instruments effecting such transfer for the sole purpose of enabling the General Partner to execute, acknowledge, swear to and file any and all instruments necessary to effect the substitution of the transferee as a Limited Partner and until the transferee is admitted to the Partnership as a substitute Limited Partner, such power of attorney shall remain in full force and effect. 15. As between the General Partner and the Limited Partners, the terms of this Limited Partnership Certificate are qualified in their entirety by the Limited Partnership Agreement dated as of December 10, 1980 (the "Limited Partnership Agreement") by and between all of the parties hereto. -3- IN WITNESS WHEREOF, the parties have executed this Certificate on the day and year first written above. GENERAL PARTNER Rose Hollow Crossing, Inc. Attest: Bruce E. Toll, sec. By: Robert I. Toll ------------------- ----------------- President LIMITED PARTNERS Robert I. Toll ------------------ Sworn to, signed, sealed and delivered ROBERT I. TOLL this 15th day of December 1980. Dianne E. Wilson - ----------------- Notary Public Bruce E. Toll ------------------ BRUCE E. TOLL Sworn to, signed, sealed and delivered this 15th day of December 1980. Dianne E. Wilson - ----------------- Notary Public [Notary Seal] -4- SCHEDULE A - -------------------------------------------------------------------------------- Name and Address Initial Capital Contribution Percentage Interest - ---------------- ---------------------------- ------------------- GENERAL PARTNER Rose Hollow Crossing, Inc. 1% 101 Witmer Road Horsham, PA 19044 - -------------------------------------------------------------------------------- LIMITED PARTNERS $100.00 49.5% Robert I. Toll P.O. Box 224 Solebury, PA 18963 - -------------------------------------------------------------------------------- Bruce E. Toll $100.00 49.5% 1477 Rydal Road Rydal, PA 19046 - -------------------------------------------------------------------------------- -5- EX-3.93 89 ex3-93.txt EXHIBIT 3.93 Exhibit 3.93 LIMITED PARTNERSHIP AGREEMENT THIS LIMITED PARTNERSHIP AGREEMENT is made as of this 19th day of December, 1980, by and among ROSE HOLLOW CROSSING, INC., (hereinafter sometimes referred to as the "General Partner") and ROBERT I. TOLL AND BRUCE E. TOLL (hereinafter sometimes referred to as the "Limited Partners"). (Hereinafter some or all of the General Partner and Limited Partners may be collectively referred to as the "Partners" and individually referred to as "Partner".) The parties hereto, in consideration of the mutual promises contained herein and intending to be legally bound, agree as follows: ARTICLE I GENERAL 1.1 Formation. (a) The Partners hereby form a limited partnership (hereinafter sometimes referred to as the "Partnership") pursuant to the Uniform Limited Partnership Act, as enacted in the State of Pennsylvania (the "Act"), for the limited purposes and scope set forth herein. Except as modified by this Agreement, the Partnership shall be governed by the Act. (b) The Partners shall execute and file a Limited Partnership Certificate (the "Certificate") and such other documents and perform such other acts as shall constitute compliance with all requirements for the formation and operation of the Partnership pursuant to the Act and otherwise under the laws of the State of Pennsylvania and any other jurisdiction in which the Partnership conducts business. 1.2 Name and Address. The name of the Partnership shall be ROSE HOLLOW CROSSING ASSOCIATES, or such other name as the General Partner may from time to time determine. The Partnership may conduct its business under such other fictitious names as the General Partner may select from time to time. The principal place of business of the Partnership shall be at 101 Witmer Road, Horsham, Pennsylvania 19044, and may be changed as the General Partner may from time to designate by notice to the Limited Partners. The Partnership may maintain such additional offices as the General Partner may determine. 1.3 Purposes. The purposes of the Partnership are: (a) To acquire the land described on Exhibit A attached hereto and engage in the business of constructing improvements thereon and subsequently, owning, maintaining and operating the same. (b) To do any and all things with respect thereto, including without limitation the sale, leasing, financing, refinancing and holding for investment thereof, as the General Partner may determine from time to time. 1.4 Term. The Partnership shall commence upon the filing of the Certificate with the Secretary of the State of the State of Pennsylvania, and shall continue until the occurrence of one of the events specified in Article VIII and, pursuant thereto, the Partnership will be dissolved and terminated. 1.5 Names and Residences. The names and places of residence of the Partners are as set forth below: General Partner: Rose Hollow Crossing, Inc. 101 Witmer Road Horsham, PA 19044 Limited Partners: Robert I. Toll P.O. Box 224 Solebury, PA 18963 Bruce E. Toll 1477 Rydal Road Rydal, PA 19046 -2- ARTICLE II CAPITAL CONTRIBUTIONS, LOANS AND PARTNERSHIP ACCOUNTS 2.1 Initial Contributions (a) Prior to or simultaneous with the execution hereof, each Partner has contributed cash or other property in the value set forth opposite the name of such Partner as follows: General Partner Amount of Contribution Rose Hollow Crossing, Inc. Limited Partners Robert I. Toll Bruce E. Toll (b) No interest shall be paid on any initial or additional capital contribution made by any Partner to the Partnership pursuant to this Article. 2.2 Additional Capital Contributions. The General Partner may (but shall not be obligated to, as further provided in Section 5.6) from time to time call upon the Partners for an additional capital contribution to the Partnership if he determines that it is necessary or desirable in order to carry out the Partnership business, whether for costs associated with the construction of improvements, the payment of interest and principal on any indebtedness whether or not secured by Partnership property, losses from operation of the Partnership business, general working capital expenses or otherwise. Each Partner agrees to contribute to the Partnership within ten (10) days after receipt of notice of any such call from the General Partner an amount equal to the product of his Percentage Interest (as defined in Section 3.1) multiplied by the amount of such additional capital contribution required by the Partnership and shall be severally liable therefor, subject to the terms of Sections 2.3 and 2.4, provided however, that in no event may the General Partner call upon the Partners to contribute additional capital contributions under this Section which are more than one hundred and fifty percent (150%) of the amount of their initial capital contributions. -3- 2.3 Failure to Make Additional Contributions. (a) If any Partner (the "Defaulting Partner") does not contribute to the Partnership his proportionate share of the additional capital contribution within the time limit provided for in Section 2.2, the other Partners may (but shall not be required to) subscribe thereto in such proportions as may be agreed upon by them. If such an agreement cannot be reached, then each Partner shall have the right, by giving notice thereof to the other Partners during the next ten (10) day period, to subscribe to all or any part of that proportion of the Defaulting Partner's share as the share of the additional capital contribution owed by him bears to the total shares owed by all of the Partners other than the Defaulting Partner. If the Partners elect to purchase less than all of the share of the Defaulting Partner, then each Partner who elected to purchase the maximum proportion of the Defaulting Partner's share permissible pursuant to the preceding sentence shall have the further right, by giving written notice thereof to all the Partners during the next ten (10) day period, to subscribe to all or any part of the share of the Defaulting Partner not theretofore purchased. If the portion of the share designated for purchase by the Partners pursuant to the preceding sentence is greater than the portion of the share not purchased, then each Partner who elected to subscribe to a portion of the Defaulting Partner's share pursuant hereto shall be deemed to have subscribed to that proportion of the share not theretofore subscribed to as the portion of the share he designated for subscription bears to the aggregate share designated for subscription by all Partners pursuant to the preceding sentence. If the Partners shall so subscribe to the Defaulting Partner's share, the Percentage Interest of the Defaulting Partner shall thereafter be reduced and the Percentage interest of the subscribing Partners shall thereafter be increased in the following manner: The Percentage Interest of each Partner shall be the percentage that the initial and additional capital contributed by the Partner bears to the total initial and additional capital contributed by all of the Partners to the Partnership. -4- (b) If the Defaulting Partner's proportionate share of the additional capital contribution is not fully subscribed pursuant to subsection (a) above, the other Partners may (but shall not be required to) lend the Partnership the amount required in such proportions as they may agree upon as among themselves. Such loan shall bear interest at a rate per annum which is 4% above the large borrower prime rate at First Pennsylvania Bank N.A. for its most creditworthy borrowers, or such lesser rate as may then be the maximum legal rate of interest the loan may bear, which interest rate shall fluctuate from time to time as changes in such prime rate of interest occur. The loan, together with interest and any reasonable casts incurred by the Partners making such loan in collecting the sum due, may be repaid by the Defaulting Partner directly or in the manner set forth in subsection (c), below, and if not sooner paid in full directly by the Defaulting Partner or pursuant to the provisions of said subsection (c) be due and payable as provided in Section 2.4 (but may be prepaid at any time without penalty). Any partial payments, including payments pursuant to subsection (c), below, shall be applied first to such costs of collection, then to interest at the rate hereinbefore stated and then to principal. (c) If the Partnership makes any distribution while (i) there is a balance due under a loan made on account of the Defaulting Partner pursuant to subsection (b), above, or (ii) no such loan has been made and the General Partner is entitled to sell the Defaulting Partner's interest in the Partnership pursuant to Section 2.4 but has not yet done so, the Partnership shall, in the case of such loan, pay to the Partners who made the loan the sums which otherwise would be distributed to the Defaulting Partner up to the full balance due to them under this Section, and in the case of no loan, retain and credit such sums against the unpaid amount of the Defaulting Partner's share of the additional contribution to the Partnership. -5- (d) Each Partner hereby pledges to the other Partners and grants to them a security interest in his entire interest in the Partnership as security for the punctual payment of the principal and interest on, and the reasonable costs of collection of, any loan made to the Partnership pursuant to this Section if such Partner becomes a Defaulting Partner. At the time of making any such loan, the Defaulting Partner shall deliver to the Partners making the loan properly executed financing statements evidencing the pledging of, and granting of a security interest in, his interest in the Partnership in form satisfactory for filing in such states as may be required. In addition, from time to time while the loan is outstanding, the Defaulting Partner shall execute such further documents to evidence the pledge and security interest as the Partners making the loan may reasonably request. If the Defaulting Partner fails to deliver to the Partners making the loan the financing statements and other documents hereby required, any Partner making the loan is hereby granted the irrevocable power and authority, as attorney in-fact, to execute any such financing statements or documents on behalf of the Defaulting Partner. (e) Time is of the essence with respect to all time limits specified in Sections 2.2, 2.3 and 2.4. -6- 2.4 Sale of Interest of Defaulting Partner. (a) If (i) any loan made pursuant to Section 2.3 has not been repaid (with interest thereon and the reasonable costs incurred in collecting the same) within one year from the date of such loan, or (ii) there is a Defaulting Partner whose share of the additional capital contribution is not fully subscribed to by the other Partners pursuant to Section 2.3 and on account of whom no such loan has been made, the Partners making the loan, or in the event of no loan, the General Partner, on behalf of the Partnership, may (but shall not be obligated to) sell the Partnership interest of such Defaulting Partner (which in the case of a loan pursuant to Section 2.3 shall be pledged by the Defaulting Partner) pursuant to the provisions of the Uniform Commercial Code of the State of Pennsylvania, at public or private sale, after giving to the Defaulting Partner not less than ten (10) days notice of the time, terms and place of sale. Notwithstanding the foregoing, the Defaulting Partner may at any time prior to such sale, in the case of such a loan, tender to the Partners making the loan all sums loaned pursuant to Section 2.3 (together with accrued interest thereon and all costs and expenses incurred by the Partners making the loan in connection with the default and sale) or in the case of no loan, tender to the Partnership the unpaid amount of his proportionate share of the additional capital contribution (together with all costs and expenses incurred in connection with the default and sale) and in such event the sale shall be cancelled. (b) Any Partner (except the Defaulting Partner), including the Partners making the loan, may be the purchaser at such sale. (c) The proceeds of such sale shall be applied first to the expenses of sale (including reasonable attorney's fees), second either to repayment of said loan, if any, with interest and any other reasonable costs incurred by the Partners making the loan in the collection thereof, or to any remaining unpaid amount of the Defaulting Partner's share of the additional capital contribution plus reasonable costs in the collection thereof. Any balance then remaining shall be paid to the Defaulting Partner. -7- (d) Each Defaulting Partner hereby constitutes and appoints any Partner who makes loans on his behalf pursuant to Section 2.3, or anyone designated by such Partner, or in the case of no loan, the General Partner or the designee of the General Partner, as his agent and attorney-in-fact for the purpose of conducting such sale and for the purpose of executing any and all documents necessary to convey to the purchaser at such sale all of his right, title and interest in the Partnership, thereby divesting such Partner of all right, title and interest in his Partnership interest and the business and assets of the Partnership. Such power of attorney, being coupled with an interest, is irrevocable and shall not be revoked as to any Partner by his death or incapacity. (e) Each Defaulting Partner hereby releases the Partnership and all the other Partners, including any who make loans on his behalf pursuant to Section 2.3, from any and all claims or liabilities for selling any Partnership interest as provided for herein. (f) Anything herein to the contrary notwithstanding, in the event that the proceeds of such sale are insufficient to repay in full said loan (with interest and costs as hereinbefore provided), or satisfy the unpaid amount of the Defaulting Partner's share of the additional capital contribution (with costs as hereinbefore provided) the Defaulting Partner shall remain personally liable for such deficiency and the Partners making such loans, or the Partnership, as the case may be, shall be entitled to seek a deficiency judgment against the Defaulting Partner, which in the case of a loan pursuant to Section 2.3 may be sought against the Defaulting Partner irrespective of any other and further rights the Partners making such loans may have against the Partnership pursuant to Section 2.5 hereof. -8- 2.5 Advances. If any Partner shall advance any moneys to the Partnership in excess of his initial and additional capital contributions, including any loan pursuant to Section 2.3 as a result of a Defaulting Partner but excluding any subscription to a Defaulting Partner's share of an additional capital contribution pursuant to Section 2.3, the amount of any such advance shall neither result in an increase of his Percentage Interest nor entitle him to any increase in his share of the distributions of the Partnership (subject to subsection 2.3(c)) and shall not be credited to his Capital Account (as defined in Section 2.6); but the amount of any such advance shall be an obligation of the Partnership to such Partner and shall be repaid to him with interest which, in the event of a loan pursuant to Section 2.3 shall be at the rate provided in said Section, and with respect to any other such advance shall be at a rate per annum which is 1% above the large borrower prime rate charged by First Pennsylvania Bank N.A. for its most creditworthy borrowers, as in effect from time to time, or such lesser rate as may then be the maximum legal rate of interest such advance may bear; provided however, that no such advance shall be made without the consent of the General Partner, which consent may be withheld in the complete discretion of the General Partner. All advances shall be payable or collectable only out of the Partnership's assets and the General Partner shall not be personally obligated to repay any part thereof. 2.6 Capital Accounts. (a) A capital account shall be established for each Partner and shall be credited with the amount of his capital contributions made to the Partnership pursuant to this Article and his share of the Partnership's profits and shall be charged with distributions and his share of the Partnership's losses, all as provided in Articles III and IV. (Hereinafter, capital accounts of the Partnership shall be collectively referred to as the "Capital Accounts" and individually as a "Capital Account"). -9- (b) Any Partner, including an additional or substituted Limited Partner or an assignee of a Partner, who shall receive an interest in the Partnership or whose interest in the Partnership shall be increased by reason of the receipt of all or part of the interest of another Partner, shall have a Capital Account which has been appropriately adjusted to reflect any such receipt. (c) No Partner shall have the right to withdraw or reduce his contribution of capital to the Partnership. Capital contributions shall be returned only upon the dissolution of the Partnership and distribution of its assets as provided in Article VIII, provided however, that the General Partner shall have no personal liability for repayment of the capital contributions of the Limited Partners. (d) Notwithstanding anything to the contrary contained or inferrable herein or by reason of any rule of law, upon dissolution of the Partnership the deficit, if any, in the capital Account of any General or Limited Partner shall not be an asset of the Partnership and no Partner shall be obligated to contribute any amount to the Partnership in order to account for said deficit, whether resulting by reason of cash distributions or the allocation of the Partnership losses, and bring the balance of such Partner's Capital Account to zero. Nothing herein, however, shall be deemed to affect the liability of the General Partner to creditors of the Partnership. ARTICLE III SHARING OF INCOME AND LOSSES 3.1 Percentage Interests. The respective percentage interest of each Partner (the "Percentage Interest") in the Partnership, subject to modification pursuant to Sections 2.3 and 7.7, is as follows: -10- Name of Partner Percentage Interest --------------- ------------------- General Partner Rose Hollow Crossing, Inc. 1% Limited Partners Robert I. Toll 49.5% Bruce E. Toll 49.5% 3.2 General Allocations. For accounting and tax purposes all items of income, gain, loss, deduction, and credit of the Partnership (including non-cash items such as depreciation) for each fiscal year of the Partnership shall be allocated to the General and Limited Partners in proportion to their respective Percentage Interests. ARTICLE IV DISTRIBUTIONS 4.1 Application of Distributable Funds. (a) defined in Section 4.2, if any, shall be determined for each fiscal year and shall be distributed at such time or times as the General Partner shall determine in his sole discretion, but no less frequently than once during each calendar quarter, subject however, to the provisions of subsection (b), below. Such distribution shall be made pro rata to the Partners in accordance with their respective Percentage Interests. (b) No distribution need be made under subsection (a), above, unless the assets of the Partnership immediately thereafter shall be adequate in kind and sufficient in amount to discharge all of the Partnership's obligations for which liability is not limited to the assets of the Partnership. Distributions may be made without regard to the balances in the Capital Accounts of the Partners or any of them at the time of such distribution so long as each distribution constitutes a pro rata distribution in accordance with each Partner's Percentage Interest. -11- 4.2 Sources of Distributable Funds. (a) Subject to the retention by the Partnership of reasonable reserves as provided for in subsection (b), below, the excess of cash receipts over cash expenditures (whether of an operating or capital nature) on account of operations of the Partnership ("Distributable Funds") shall be distributed to the Partners in accordance with Section 4.1. Any other funds deemed available for distribution by the General Partner, in his sole discretion and to the extent permitted by law, shall also be considered Distributable Funds. Notwithstanding the foregoing, Distributable Funds shall not include capital contributions of the Partners and proceeds from the sale or other disposition of Partnership assets or insurance proceeds on account thereof all of which are governed by Section 4.3. (b) The General Partner may create reserves for working capital, contingencies and for any other items and in such amount that the General Partner deems reasonably necessary or desirable for the operation of the Partnership business, including without limitation, debt service payments on mortgages whether or not secured by Partnership property and other financing charges, the payment of state and local income taxes, if any, improvements of and replacements to Partnership property, debts owed to Partners, the funding of losses affecting the cash position of the Partnership and other similar items. 4.3 Other Distributions. (a) Distribution of net proceeds available from mortgage financing and refinancing to the extent, if any, the General Partner determines in his sole discretion to make such distribution shall be made pro rata to the Partners in accordance with their respective Percentage Interest. -12- (b) Distribution of net proceeds available from the sale or other disposition of all of the assets of the Partnership, or from casualty insurance if all of the Partnership assets are destroyed and not replaced, shall be made in accordance with the provisions of Section 8.4 which govern upon the dissolution of the Partnership. (c) As used herein, the term "net proceeds" shall mean cash available after deduction for funds needed by the Partnership, including without limitation, for application to reduction of Partnership indebtedness, for the development, improvement or reconstruction of Partnership property; and for related expenses such as brokers and finders commissions, application fees, title insurance costs, and legal and other professional expenses. 4.4 No Return of Capital Contributions. No Partner is entitled to the return of his capital except upon the dissolution of the Partnership, and no Partner shall be deemed to have received a distribution of capital by reason of the combination of cash distributions to such Partner and the allocation of losses of the Partnership charged against such Partner's Capital Account. If a Limited Partner were deemed to have received a distribution of capital, such Partner might be liable to the Partnership for the amount of such distribution of capital, with interest, to the extent necessary to discharge the liabilities of the Partnership to its creditors. ARTICLE V MANAGEMENT AND NATURE OF PARTNERS' INTERESTS 5.1 Authority and Obligations of General Partner. All decisions as to the management of the business of the Partnership shall be made solely by the General Partner. The General Partner shall use his best efforts to carry out the purposes of the Partnership as set forth in Section 1.3. -13- 5.2 Powers of the General Partner. The General Partner shall have all the powers of a general partner under the Act and as otherwise permitted by law (except as provided herein) as is necessary or desirable to carry out the purposes of the Partnership, which powers shall be exercisable on behalf of the Partnership in the absolute discretion of the General Partner and which shall include, without limitation, the power to: (i) Acquire or sell, assign, convey or otherwise transfer title to any portion of the real and personal property and other assets of the Partnership, including any interest in any mortgage, lease, or other interest in real or personal property owned by the Partnership; (ii) Construct and develop or cause the construction and development of such buildings and other improvements upon land owned or leased by the Partnership, and have additions and alterations made to existing improvements; (iii) Manage and lease all or any portion of the real or personal property of the Partnership, whether or not the space or facility so leased is to be occupied by the lessee or, in turn, subleased in whole or in part to others; (iv) Borrow Money for the Partnership (whether or not in the ordinary course of business), and as security therefor, mortgage all or any part of the Partnership's real and personal property and in conjunction therewith execute all necessary papers and documents, including but not limited to bonds, notes, mortgages, pledges, security agreements financing statements, and confessions of judgment; provided however, if obtainable, such loans or obligations of the Partnership may provide that the Partnership's liability for repayment shall be limited to the real or personal property encumbered for such loans or obligations; and to enter into sale-leaseback transactions for all or any part of the Partnership's real and personal property or offer participations in the revenues or equity of the Partnership's property to commercial and institutional lenders, as may be required by prevailing marketing conditions to secure borrowings of funds on an interim or long-term basis; -14- (v) Obtain replacements of mortgages of the Partnership's property; (vi) Prepay, in whole or in part, refinance, recast, increase, modify, consolidate, correlate, or extend any mortgages affecting the real or personal property of the Partnership; (vii) Place record title to the Partnership's real or personal property in the name or names of a nominee or nominees for the purpose of mortgage financing or other convenience or benefit to the Partnership; (viii) Employ from time to time persons, firms and corporations to operate and manage the Partnership's real property, including, without limitation, a supervisory management agent, and accountants and attorneys; (ix) Designate the depository or depositories in which all bank accounts of the Partnership shall be kept and the person or persons upon whose signature withdrawals therefrom shall be made; (x) Invest funds of the Partnership in rated corporate obligations, corporate commercial paper, time deposits, certificates of deposit, savings certificates or other insured accounts, and local, state or federal government obligations; (xi) Prosecute, defend, settle, compromise or submit to arbitration, at the Partnership's expense, any suits, actions or claims at law or in equity to which the Partnership is a party or by which it is affected, as may be necessary, proper or convenient, and to satisfy out of Partnership funds any judgment, decree or decision of any court, board, agency or authority having jurisdiction, or any settlement of any suit, action or claim prior to judgment or final decision thereon; -15- (xii) Obtain insurance, in such amounts and against such risks, on behalf of and for the protection of the Partnership and the Partners, provided however, such insurance shall be sufficient to meet the requirements of any mortgage lender or leases given by the Partnership; (xiii) Set aside funds of the Partnership for payment of past, current, and future liabilities of the Partnership, including, but not limited to, liabilities of the Partnership to individual Partners; (xiv) Transfer the assets of the Partnership to one or more corporations to be formed under the laws of the State of Pennsylvania provided that each Partner shall have the same proportionate interest in each class of stock of said corporation(s) as his Percentage Interest in the Partnership, in which event said corporation(s) shall assume the liabilities of the Partnership and the Partnership shall then terminate. (xv) To execute, acknowledge and deliver any and all instruments and documents, and to make expenditures and do any and all other things necessary or appropriate to effectuate any of the foregoing powers and accomplish the business and purposes of the Partnership or as is necessary or incident to the protection and benefit of the Partnership. 5.3 Fee to General Partner. The General Partner shall render his personal services to the Partnership without compensation, provided however, that the General Partner shall be entitled to reimbursement for all reasonable expenses incurred in connection with the Partnership business, including without limitation, all legal and accounting expenses incurred pursuant to Sections 6.2 and 6.3. -16- 5.4 Other Interests of Partners. (a) The General Partner shall devote to the Partnership such time as reasonably may be required in the conduct of the Partnership business. In view of the exclusive and limited purposes of the Partnership, no Partner shall have any obligation to make any other real estate opportunity not involving the property described on Exhibit A available to the Partnership or to any of its Partners. It is further expressly agreed that any Partner may engage in and possess interests in other businesses and ventures of every nature and description, independently or with others, and any such engagement will not constitute a breach of the General Partner's fiduciary duties to the Partnership and neither the Partnership nor any Partner shall have any rights by virtue of this Agreement or the existence of this Partnership in and to said independent ventures or to the income or profits derived therefrom. (b) The Partnership may employ or transact business with any person, firm or corporation (including without limitation TOLL BROTHERS, INC.), notwithstanding the fact that any Partner or member of his Immediate Family may be related to or have an interest therein, provided however, that the Partnership shall only employ any such person, firm or corporation on terms no more advantageous than would be given in favor of a disinterested third party acting in the same capacity. Neither the Partnership nor any Partner (in his capacity as a partner hereof) shall have any rights to any income or profits derived in connection therewith. As used herein, the term "Immediate Family" of a Partner shall mean his spouse, parents, parents-in-law, siblings, and any of his descendants, or the siblings or descendants of any of the aforementioned persons. 5.5 Limitations on Limited Partners. The Limited Partners shall in no event (i) be permitted to take part in the control of the business or affairs of the Partnership; or (ii) have the authority or power in' the capacity of a Limited Partner to act as agent for or on behalf of the Partnership or any other Partner to do any act which would be binding on the Partnership or any other Partner, including without limitation the incurring of any expenditures on behalf of the Partnership. Any Limited Partner may, however, deal with the Partnership as an independent contractor or agent for others and may receive from such others or the Partnership normal profits, compensation, commissions or other income incident to such dealings, provided however, that the Limited Partner shall first obtain from the General Partner consent to such dealings and in the event of the failure to do so, the Limited Partner shall on demand of the General Partner remit to the Partnership all such profits, compensation, commissions and income derived from such dealings. -17- 5.6 Liability of Limited Partner. (a) The Limited Partners shall in no event be liable personally for any of the debts or losses of the Partnership or of the General Partner beyond the aggregate amount of agreed upon contributions to the capital of the Partnership as provided in Article II. The Limited Partners shall not have any obligation to contribute any sums of money or other property to the Partnership (other than the agreed upon contributions provided for herein) on account of any deficit or negative balance in his Capital Account. (b) Notwithstanding anything herein or in the Act to the contrary, the right of the General Partner to require additional capital contributions from all Partners under Section 2.2 is intended solely for the benefit of the Partners and not for the benefit of creditors of the Partnership or any other third parties. Accordingly, Section 2.2 shall create no rights in any creditors of the Partnership or other third parties to require the Partners to make contributions to the Partnership to meet any obligations of the Partnership. -18- 5.7 Liability and Indemnification of General Partner. (a) As among the Partners, no personal liability shall be imposed upon the General Partner by reason of any act or omission occurring in the course of his management or control of the Partnership, for damages or otherwise, except for willful misconduct and in that event, such liability may only be enforced and satisfied out of the Partnership interest held by the General Partner and Partnership assets. In addition to as provided in Sections 2.5 and 2.6 with respect to loans made by Limited Partners and return of capital contributions, respectively, it is further specifically agreed that the General Partner shall not be liable or responsible for the failure of any Limited Partner to make any capital contributions agreed to herein. (b) The Partnership shall indemnify and hold harmless the General Partner from and against any loss, expense, damage or injury suffered or sustained by him by reason of any acts, omissions or alleged acts or omissions arising out of his activities on behalf of the Partnership, including but not limited to any judgment, award, settlement, reasonable attorney's fees and costs and expenses incurred in connection with the defense and settlement of any actual or threatened action, proceeding or claim, unless such acts, omissions or alleged acts or omissions were made as a result of willful misconduct by the General Partner; provided however, that such indemnity shall be satisfied only out of and to the extent of the Partnership assets and the Partnership interests held by the Limited Partners and no Limited Partner shall have any personal liability on account thereof. ARTICLE VI FISCAL MATTERS 6.1 Partnership Books. (a) The Partnership shall maintain at its principal office, or such other office as shall be designated by the General Partner, full and accurate books of the Partnership, including the Certificate and any amendments made thereto, which shall fully reflect each of its transactions, including the allocations and cash distributions provided for in Articles III and IV, and all other records necessary for recording the Partnership's business. -19- (b) During regular business hours and upon reasonable notice, each Partner and his duly authorized representatives shall have access to and may inspect and copy any of such books and records. 6.2 Annual Reports. Within ninety (90) days following the end of each fiscal year of the Partnership, the General Partner shall cause to be prepared and distributed to each Partner a financial statement of the Partnership which shall include a profit and loss statement, a balance sheet, a statement of each Partner's Capital Account and a statement reflecting each Partner's share of Partnership income or loss for income tax purposes. Each such statement shall be prepared without audit, provided that any Partner may require at any reasonable time that audited statements be prepared by auditors to be selected by the General Partner at the expense of the Partnership. The General Partner shall also cause the necessary federal, state and local income tax returns and reports required of the Partnership to be prepared and timely filed. 6.3 Accounting Decisions. All decisions as to accounting matters, except as specifically provided to the contrary herein, shall be made by the General Partner in accordance with generally accepted accounting principles consistently applied and in use for entities engaged in business similar to that of the Partnership. The General Partner may rely upon the advice of the Partnership's counsel or accountants as to whether such decisions are in accordance with such generally accepted accounting principles. The General Partner may elect to treat certain items differently for accounting purposes than the manner in which such items are treated for tax purposes. All legal and accounting fees shall be borne by the Partnership. -20- 6.4 Bank Accounts. The General Partner shall be responsible for causing one or more bank accounts to be maintained in the Partnership's name into which all funds of the Partnership shall be deposited and from which payment of all Partnership business expenditures shall be made. No other funds shall in any way be commingled with the funds in such Partnership accounts. 6.5 Tax Elections. Upon receipt of notice by a Partner requesting that the Partnership file an election pursuant to Section 754 of the Internal Revenue Code of 1954 (or any successor section), the Partnership will file such election. The Partnership will also use its best efforts to revoke any election then in effect upon receipt of notice of a request made on behalf of the Partners who are affected by such revocation. The Partners agree to supply the Partnership with the information necessary in the event of such an election or the revocation thereof in order to give effect thereto. ARTICLE VII ASSIGNABILITY OF PARTNERS' INTERESTS; ADDITIONAL LIMITED PARTNERS 7.1 Limited Partner's Interest. (a) A Limited Partner may transfer, assign, pledge, hypothecate or otherwise dispose (hereinafter sometimes referred to as a "Transfer") of all or part of his interest in the Partnership to a person or entity (hereinafter sometimes referred to as an "Assignee") only if such Transfer is made in accordance with the provisions of this Article, provided however, that in no event shall any Limited Partner be relieved of his responsibilities hereunder without the prior written consent of the General Partner. Any purported Transfer in violation of the provisions of this Article shall be null and void and the non-transferring Partners, or any of them, in addition to any other remedies available under this Agreement and at law, in equity and otherwise, may seek to enjoin such Transfer and the transferring Partner, or his legal representatives, agrees to submit to the jurisdiction of any court of equity in the State of Pennsylvania and to be bound by any order of such court enjoining such purported Transfer. In the event of any such permitted Transfer, the Assignee shall be entitled to receive the allocations and distributions to which the Limited Partner from whom such interest was acquired (hereinafter sometimes referred to as the "Assignor") would have been entitled and shall be required to make the capital contributions, if any, which the Assignor would have been required to make hereunder. Unless the provisions of Section 7.4 are complied with, an Assignee shall not become or have the rights of "substituted limited partner" as that term is used in the Act, but shall only have the rights of an "assignee" as set forth therein and herein. -21- 7.2 Requirements for Assignment. Notwithstanding anything in this Agreement or any rule of law to the contrary, no Transfer, howsoever accomplished (including without limitation a Transfer of an interest from a Limited Partner to his spouse pursuant to a divorce settlement or judgment), whether voluntary or involuntary, of a Limited Partner's interest, although otherwise valid, shall be recognized by the Partnership until (i) the Assignor has given written notice thereof to the General Partner; (ii) the Assignee agrees in writing to be bound by all of the terms of this Agreement (including a confirmation of the representations and warranties contained in Section 9.11) and to assume all obligations hereunder with respect to the Assignor-Limited Partner's Partnership interest, and executes and delivers such other instruments in form and substance satisfactory to the General Partner as he may reasonably deem necessary and desirable to effect the admission of the Assignee into the Partnership; and (iii) the Assignor delivers to the General Partner on behalf of the Partnership an opinion of legal counsel for the Assignor satisfactory to the Partnership to the effect that such transfer may legally be accomplished without registration under all applicable securities laws. If the Assignor is deceased or incompetent, certified copies of any court order or documents may be submitted in lieu of the document which a Limited Partner is required to submit under clause (i), above, and his legal representative may act on his behalf under clause (iii), above. -22- 7.3 Right of First Refusal Upon Assignment. (a) Subject to subsection (c), below, should any Limited Partner (the "Selling Partner") desire to Transfer his interest in the Partnership, or any portion thereof, and have received an offer therefor which he desires to accept (hereinafter referred to as the "third party offer"), he shall first deliver to the General Partner and the other Limited Partners, a written instrument in which he shall: (i) State his intention to Transfer his interest, or designated portion thereof (the portion, whether all or part of the interest in the Partnership which the Selling Partner desires to Transfer, is hereafter referred to as the "Designated Portion"). (ii) State the price and terms, in terms of cash and/or promissory note(s), he has received for the purchase of the Designated Portion, and the name and address of the offeror(s); (iii) Warrant and represent that to the best of his knowledge and belief, the third offer referred is a bona fide offer which he is willing to accept; and (iv) Offer to sell the Designated Portion to the General Partner and the other Limited Partners on the same terms and conditions as are described in such third party offer. Such instrument shall be accompanied by a true and correct copy of the third party offer. -23- (b) At any time during the thirty (30) day period after the delivery to the Partnership of such offer required by subsection (a), above, the General Partner shall have the first and prior right to purchase all or part of the Designated Portion of the Selling Partner on the terms and at the price set forth in the third party offer, provided however, the General Partner shall not have the right to purchase part of the Designated Portion unless the other Limited Partners purchase the balance. If' this right of first refusal is not exercised in full by the General Partner, the other Limited Partners shall have the right within thirty (30) days after the end of the above-described thirty (30) day period to purchase that part of the Designated Portion which the General Partner has not elected to purchase in such proportions as they may agree among themselves on the terms and on the basis of the price set forth in the offer. If such an agreement cannot be reached, each Limited Partner shall have the right, by giving notice thereof to the other Limited Partners during the next ten (10) day period to subscribe to all or any part of that remaining proportion of the Designated Portion as the Partnership interest owned by him bears to the total Partnership interests owned by all of the Partners (based on their Percentage Interests) other than the General Partner and Selling Partner. If Limited Partners elect to purchase less than all of the remaining Designated Portion, then each Limited Partner who elected to purchase the maximum proportion thereof pursuant to the preceding sentence shall have the further right, by giving notice thereof to all of the Limited Partners during the next ten (10) day period, to subscribe to all or any part of the Designated Portion not theretofore purchased. If the portion designated for purchase by the Limited Partners pursuant to preceding sentence is greater than the portion not purchased, then each Limited Partner who elected to subscribe to a portion of the Designated Portion pursuant hereto shall be deemed to have subscribed to that proportion thereof as the portion he designated for subscription bears to -24- the aggregate portions designated for subscription by all of the Limited Partners pursuant to the preceding sentence. If the General Partner and the other Limited Partners do not agree to purchase all of the Designated Portion, the Selling Partner may, at any time within sixty (60) days after the expiration of last thirty (30) or ten (10) day option period, whichever is later, sell the Designated Portion in the Partnership to the offeror(s) named in the third party offer, on the terms and at the price stated in such offer, provided that the sale and conveyance is expressly made subject to the requirements of Section 7.2 and the other provisions of this Agreement. If the sale is not completed within such sixty (60) day period, the notice given to the General Partner and Limited Partners shall be deemed to have expired and a new notice and option shall be required before any transfer is made of the Partnership Interest, or any portion thereof, of the Selling Partner. (c) The provisions of subsection (a), above, shall not apply in the event that the Assignee is any one of the following: (i) A spouse, ancestor or lineal descendant of an ancestor of the Assignor, or a trust for the benefit of any one or more of the Assignor and the foregoing persons. (ii) A corporation or partnership of which all of the capital stock, in the case of the corporation, or interest, in the case of a partnership, are owned by the Assignor and persons designated in clause (i), above. (iii) A legal representative, heir or legatee of the Assignor. (iv) Any Partner of this Partnership. Said provisions shall also not apply to the pledge, hypothecation or mortgage by a Limited Partner of all or part of his interest in the Partnership but shall apply to a foreclosure of or the realization upon any such pledge, hypothecation or mortgage. 7.4 Substituted Limited Partner. An Assignee of all or part of the interest of a Limited Partner shall become a substituted Limited Partner if and only if: (i) the General Partner consents to such substitution, which consent may be withheld for any reason which the General Partner deems appropriate, provided however, that such consent shall not be required in the event that the Assignee is already a Partner; (ii) the Assignor grants the Assignee such right, provided however, that such grant shall not be required in the event that the Transfer occurs by reason of the death, incompetency or bankruptcy of the Assignor; and (iii) the Assignee pays to the Partnership all costs and expense incurred in connection with such substitution, including without limitation, costs incurred in amending the Certificate. -25- 7.5 General Partner's Interest. The interest of the General Partner in the Partnership shall not be assignable without the prior written consent of all of the Limited Partners. In the event that the General Partner obtains such consent hereinbefore required in order to transfer his interest to an assignee who shall become a new General Partner of this Partnership, the assignee shall not become a General Partner hereunder unless the assignee pays to the Partnership all costs and expenses incurred in connection with such assignment, including without limitation, costs incurred in amending the Certificate. Any purported assignment in violation of this Section shall be null and void and the provisions set forth in Section 7.1 above with respect to a null and void Transfer of a Limited Partner's partnership interest shall be similarly applicable. 7.6 Successor General Partner. (a) The Partners may, at any time or from time to time, designate by written agreement executed by holders of more than fifty (50%) percent in interest of the Partnership (based on their Percentage Interests) one of the Partners or a non-Partner to be the successor General Partner who shall serve only upon the death or entry of an order of incompetency of the General Partner, or upon the occurrence of any of the events relating to the financial condition of the General Partner as set forth in subsection 8.1(a), provided he agrees in writing to be bound by this Agreement. -26- (b) Upon the death or entry of an order of incompetency of the General Partner or upon the occurrence of any of the events related to his financial condition as set forth in subsection 8.1(a) without the designation of a successor General Partner, the then holders of more than fifty (50%) percent in interest of the Partnership (based on their Percentage Interests), including that of the legal representative of the deceased, incompetent or bankrupt General Partner, shall have ninety (90) days after such event to designate in writing a Partner or non-Partner to be the successor General Partner, and upon such designation such Partner or non-Partner shall become the successor General Partner in the same manner and under the same conditions as if such designation had been made pursuant to subsection (a), above, prior to such event. (c) The change of General Partner under this Section or Section 7.5 shall not effect a termination of the Partnership. (d) The interest of a former General Partner shall upon his death, the entry of an order of incompetency or the occurrence of any of the events specified in subsection 8.1(a) be converted into a limited partnership interest in the manner and to the extent provided in Section 7.5. 7.7 Admission of Additional Limited Partners. (a) The General Partner shall have the exclusive right and authority to admit such additional Limited Partners into the Partnership upon the payment of such capital contributions as the General Partner may decide in his sole and absolute discretion. In the event that such new Limited Partners are admitted into the Partnership, the Percentage Interest of each such Limited Partner shall be arrived at and the Percentage Interest of each existing Partner shall be adjusted as follows: The Percentage Interest of each Partner shall be a percentage of the initial capital and additional capital contributed by each Partner at the time of such admission bears to the total initial and additional capital contributed by all of the Partners to the Partnership at the time of such admission. The addition of any such additional Limited Partner shall not be effective until he has agreed in writing to be bound by all the terms of this Agreement as if he were an original party hereto and shall have executed and delivered such other instruments deemed necessary and desirable by the General Partner to effect such admission into the Partnership. -27- (b) The right of the General Partner pursuant to subsection (a), above, to admit an additional Limited Partner pursuant to a third party bona fide offer for the purchase of a limited partnership interest shall be subject to the General Partner first giving the Limited Partners a right of first refusal with respect to such additional limited partnership interest. The terms and provisions set forth in Section 7.3 as to the right of refusal to be given to the Limited Partners with respect to the Transfer of a Limited Partner's interest shall also govern this right of first refusal. ARTICLE VIII DISSOLUTION AND TERMINATION 8.1 Events of Dissolution. (a) The Partnership shall only be dissolved: (i) upon the mutual consent of all Partners; (ii) upon the sale or other disposition by the Partnership of all its right, title and interest in and to its assets, and unless the General Partner consents, the receipt by the Partnership of the purchase price in full and in cash, unless all of the Partners consent to the election by the Partnership of Section 1033 of the Internal Revenue Code (or any successor section) and the Partnership replaces the Property in accordance therewith; -28- (iii) upon an adjudication of the General Partner as bankrupt or insolvent, or the filing by the General Partner of a voluntary petition in bankruptcy or any petition or answer seeking any liquidation, dissolution or similar relief for himself under the present or any future Federal Bankruptcy Act or any other present or future applicable Federal, State or other statute or law regarding bankruptcy, insolvency or other relief for debtors, or the General Partner's making any assignment for the benefit of creditors or seeking, consenting to, or acquiescing in the appointment of any trustee, receiver, conservator or liquidator (or other similar official) of such General Partner or of all or any substantial portion of his property (whether or not including its interest in the Partnership) or of his interest in the Partnership; (iv) upon the entry by a court of competent jurisdiction of an order, judgment or decree approving a petition filed against the General Partner seeking any liquidation, dissolution or similar relief under the present or any future Federal Bankruptcy Act, or any other present or future applicable Federal, State or other statute or law relating to bankruptcy, insolvency or other relief for debtors, and, such General Partner shall acquiesce in the entry of such order, judgment or decree, or such order, judgment or decree shall remain unvacated and unstayed for an aggregate of sixty consecutive (60) days; (v) upon the giving of notice by the General Partner to any governmental body of its insolvency or pending insolvency, or suspension or pending. suspension of operations; (vi) in any event, at 12:00 midnight on December 31, 2030. (b) The occurrence of any of the events relating to the financial condition of the General Partner as set forth in subsection 8.1(a) shall not terminate the Partnership unless a successor General Partner has not been or is not appointed in accordance with the provisions of Section 7.6. The occurrence of any of the events mentioned or referred to in the preceding sentence with respect to a Limited Partner shall not terminate the Partnership and the Limited Partner's interest shall pass by will or by law, as the case may be, subject to the provisions of this Agreement. -29- (c) Upon the occurrence of an event not specified in subsection 8.1(a) which would cause a dissolution of the Partnership under the Act or otherwise under the laws of the State of Pennsylvania, the parties hereto and their respective successors and assigns agree that any such event shall not result in a termination of the Partnership or this Agreement and further agree to cause a new limited partnership to be formed which will be governed by and operated under all of the terms and conditions of this Agreement, to avoid any interruption of the Partnership business, and to cause an appropriate Certificate to be filed. 8.2 Dissolution, Winding Up and Termination. Unless the provisions of subsection 8.1(c) are applicable, upon dissolution of the Partnership, the General Partner shall have the full power and authority to proceed with the liquidation of the Partnership and to take all steps which he may deem necessary or desirable to wind up the Partnership's affairs, having for such purpose all the powers referred to and provided for in Section 5.2 appropriate to accomplish the same and allowing for a reasonable time in order to minimize losses attendant to the liquidation, so that the Partnership may be terminated in accordance with the Act. In the event that there is no General Partner, the Limited Partners shall designate one or more Partners or a non-Partner or both, by written agreement executed by holders of more than fifty (50%) percent in interest of the Partnership (based on their Percentage Interests) to proceed with the liquidation of the Partnership's assets and the termination of the Partnership. In the event that a liquidator is designated pursuant to the preceding sentence, hereinafter in this Article all references to the General Partner shall be deemed to refer to such liquidator. -30- 8.3 Final Accounting. In connection with such winding up, an accounting shall be prepared and furnished to each Partner to cover the period from the date of the last previous accounting to the date of such dissolution. Upon completion of distribution in accordance with Section 8.4, a further statement for the period of dissolution shall be so prepared and furnished. 8.4 Distributions Upon Winding Up and Termination. (a) The proceeds from all assets of the Partnership upon its winding up and termination shall be distributed and applied in the following order of priority, with no distribution being made in any category being set forth below until each preceding category has been satisfied in full: (i) Payment of debts and liabilities of the Partnership (other than any loans or advances made by Partners to the Partnership) and the expenses of liquidation; provided however, that loans or advances guaranteed by Partners shall not be considered as being made by such Partners, and provided further that the General Partner shall have the right to designate the order in which specific liabilities are to he satisfied out of Partnership assets, to the extent permitted with reference to the order provided by law, in order to minimize the risk of personal liability on the part of any Partner. (ii) Establishment of reserves deemed reasonably necessary to cover contingent or unforseen liabilities or obligations of the Partnership or the General Partner arising out of or in connection with the Partnership. These reserves may be paid over to an attorney-at-law of the State of Pennsylvania or a bank or trust company authorized to do business therein to be held in escrow for the purpose of paying any such contingent or unforseen liabilities or obligations and at the expiration of such period as the General Partner shall deem advisable, any then remaining balance shall be distributed as the General Partner shall direct but in accordance with the order of priority set forth in clauses (iii) and (iv), below. -31- (iii) To the repayment of any loans or advances made by Partners to the Partnership, including loans made under Section 2.3 plus accrued interest thereon, but if the amount available for such repayment shall be insufficient, then pro rata on account thereof. (iv) To each Partner in the proportion that the positive balance of his Capital Account bears to the sum of all Partners positive Capital Accounts. For this purpose, the Capital Account of each Partner shall be determined as of the appropriate date for distribution. In this connection, income or losses through the year of final liquidation, including income or losses realized from the sale of assets of the Partnership and unrealized in connection with any assets distributed in kind pursuant to subsection (c), below, shall be allocated as set forth in Article IV and credited or charged to the Capital Accounts of the respective partners. (b) Notwithstanding anything to the contrary in the Act or any other statute or rule of law, the Limited Partners shall have no right of priority over the General Partner with respect, to repayment of loans and advances or otherwise in the application and distribution of the assets of the Partnership upon dissolution as provided herein. (c) No Partner may demand or receive property other than cash upon distribution as provided herein, unless however, holders of more than fifty (50%) percent in interest of the Partnership (based on their Percentage interests) determine that it shall not be necessary to liquidate all of the Partnership assets. In that event, cash assets of the Partnership shall be distributed first and the notes receivable and other non-cash assets last. Any such non-cash assets may be distributed in kind, including but not limited to undivided interests in such assets and whether or not like assets are distributed to each Partner. -32- (d) Upon completion of distribution in accordance with the foregoing plan, including any payment to an escrowee, the Partnership shall be terminated, the Limited Partners shall cease to be such and the General Partner shall cause a cancellation of the Certificate to be executed and filed. If the General Partner shall fail to file such cancellation, any Limited Partner may do so. ARTICLE IX MISCELLANEOUS 9.1 Notices. All notices, elections, offers, acceptances demands, consents, and other communications permitted or required to be made under this Agreement shall be in writing to be effective, signed by the Partner giving the same and shall be delivered personally, or sent by registered or certified mail, to the other Partners, at the address of such Partners set forth in Section 1.5, or at such other address as may be supplied in writing in the manner set forth in this Section. The date of personal delivery or two business days after the date of mailing, as the case may be, shall be the date such notice or other communication is deemed to have been received. A copy of all notices and other communications given hereunder shall in all cases be sent to the General Partner. 9.2 Successors and Assigns. This Agreement shall be to the benefit of the Partners, their respective successors and assigns, and each Partner agrees, on behalf of itself and its successors and assigns, to execute any instruments which may be necessary or desirable to carry out the purposes of this Agreement, and hereby authorizes and directs it successors and assigns, to execute such instruments. Each and every successor to any Partner, whether such successor acquires its interest by way of gift, purchase, foreclosure, or by any other method, shall hold such interest subject to all of the terms and provisions of this Agreement. It is the intention of the Partners that, during the term of this Agreement, the rights of the Partners and their successors and assigns as among themselves, shall be governed by the terms of this Agreement, and that the right of any Partner or successor to assign, transfer, sell or otherwise dispose of or deal with its interest in the Partnership shall be subject to the limitations and restrictions of this Agreement, provided however, that in no event shall the assignment of any interest in the Partnership be effective unless made in accordance with Article VII. -33- 9.3 Power of Attorney. (a) By executing the Counterpart Signature Page hereto containing the power of attorney (the "Power of Attorney") thereon, each Limited Partner appoints the General Partner as his agent and attorney-in-fact to take all action provided for therein. Each Limited Partner hereby gives the General Partner full power and authority to do each act requisite to be done in and about the matters referred to therein, and hereby ratifies all that the General Partner lawfully does by virtue thereof. Each Limited Partner also agrees to execute and deliver within five (5) days after receipt of request therefor such instruments as the General Partner deems necessary to confirm the power of attorney granted in the Power of Attorney. (b) The Power of Attorney, being coupled with an interest, is irrevocable and shall not be revoked by the occurrence of an Event of Dissolution or the death, incompetency or dissolution of any Partner. The Power of Attorney shall also survive an assignment by a Limited Partner of the whole or any part of the amounts distributable to him pursuant to this Agreement. If a Limited Partner transfers his Partnership interest, such Power of Attorney shall survive the delivery of the instruments effecting such transfer for the sole purpose of enabling the General Partner to execute, acknowledge, swear to and file any and all instruments necessary to effect the substitution of the transferee as a Limited Partner and until the transferee is admitted to the Partnership as a substitute Limited Partner, such Power of Attorney shall remain in full force and effect. -34- (c) The General Partner shall cause the instruments and documents referred to in the Power of Attorney to be filed as required or as deemed appropriate. (d) Either this Agreement, the Counterpart Signature Pages hereto, or a Certificate containing a power of attorney substantially similar to that in the Counterpart Signature Page and this Section may, at the election of the General Partner, or if otherwise required by law, be recorded in the appropriate public office in the State of Pennsylvania and any other jurisdiction. 9.4 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law. 9.5 Amendment. No change, modification or amendment of this Agreement shall be valid or binding upon the Partners unless such change or modification shall be in writing signed by the Partner or Partners against whom the same is sought to be enforced. 9.6 Waiver of Partition. The Partners agree that no Partner, nor any successor to any Partner, shall have the right while this Agreement remains in effect to have any of the assets of the Partnership partitioned, either by way of partition in kind or partition by sale, or to file a complaint or institute any proceeding at law or in equity for such purpose, and each Partner, on behalf of itself and its successors and assigns, irrevocably waives any such right until the end of the term of the Partnership. -35- 9.7 Remedies Cumulative. The remedies of the Partners under this Agreement are cumulative and shall not exclude any other remedies to which any Partners may be lawfully entitled. 9.8 No Waiver. The failure of any Partner to insist upon strict performance or a covenant hereunder or of any obligation hereunder or to exercise any right or remedy hereunder, regardless of how long such failure shall continue shall not be a waiver of such Partner's right to demand strict compliance therewith in the future unless such waiver is written and signed by the Partner giving the same. 9.9 No Third Party Beneficiaries. None of the provisions of this Agreement are intended to benefit, and none shall inure to the benefit of or be enforceable by, any creditors of the Partnership or any other third parties. 9.10 Additional Instruments. Each Partner agrees to execute such agreements, certificates, tax statements and returns, and other documents as may be required bylaw to effectuate this Agreement. 9.11 Investment Representations and Warranties. Each Limited Partner hereby represents and warrants with respect to his execution of this Agreement and the interest in the Partnership to be acquired by him hereunder as follows: (a) He has his principal residence in the State of Pennsylvania; he will not sell, assign or otherwise transfer his interest in the Partnership to any person who is not a resident of the State of Pennsylvania within the meaning of Rule 147 of the General Rules and Regulations under the Securities Act of 1933 and he will obtain from any transferee of his interest in the Partnership representations and warranties similar to those made in this Section and furnish to the General Partner evidence thereof which is satisfactory to him; -36- (b) He has been furnished such information with respect to the organization and operation of the General Partner and the proposed operation of the Partnership as he has requested and such information as he deems necessary to evaluate the risks involved and the potential profits from his investment; (c) He is acquiring his interest in the Partnership for investment for his own account and not with a view to a distribution thereof within the meaning of the Securities Act of 1933 and the Securities Act of the State of Pennsylvania; (d) He has such financial capacity that his investment in the Partnership would not be material when compared with his total financial capacity; (e) He has experience and skill in investment and business matters, based on actual participation; (f) He has such knowledge of finance, securities and investments, generally, that he is capable of evaluating the risks involved in becoming a Partner; (g) He understands that the transferability of his interest in the Partnership is restricted as set forth herein and that he cannot expect to be able readily to liquidate his investment in case of emergency and that he may have to continue to bear the risk of holding the interest for an indefinite period; (h) He will not sell, assign, transfer, pledge, hypothecate or otherwise dispose of all or any part of his Partnership interest except in compliance with all the applicable provisions of this Agreement, which hereby includes in the case of residents of Pennsylvania a prohibition on the ability to transfer his interest within twelve (12) months after purchase; and (i) He has, to the full extent he deemed advisable, conferred with counsel of his own selection in connection with this Agreement and the foregoing representations and understands that the General Partner, based on the foregoing representations and warranties of the Limited Partners, is not registering interests under this Agreement under the Securities Act of 1933, as amended, or under the Securities Act of the State of Pennsylvania, as amended, that such registration is neither contemplated nor likely and that he does not have the right to require such registration. -37- 9.12 Right of Recission. Each Partner acknowledges that he is hereby notified that pursuant to Section 207(m) of the Pennsylvania Securities Act he has the right to withdraw his entering into this Agreement without incurring any liability within two business (2) after the later of his execution hereof or making his capital contribution required by Section 2.1. 9.13 Entire Agreement. This Agreement contains the entire agreement between the Partners and supersedes all prior understandings and agreements between them concerning the subject matter hereof. No representations, warranties, conditions or agreements pertaining to the subject matter of this Agreement have been made by, or shall be binding upon, any of the Partners, except as expressly set forth in this herein. 9.14 Captions. Titles or captions of articles and sections contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof. 9.15 Number and Gender. Whenever required by the context, the singular number shall include the plural and the masculine or neuter gender shall include all genders. 9.16 Counterparts. This Agreement may be executed in multiple copies, each of which shall for all purposes constitute one Agreement which is binding on the Partners notwithstanding that all parties are not signatures to the same copy. -38- 9.17 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania without application to the conflict of laws of such State. IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have caused this Agreement to be duly executed as of the day and year first written above. GENERAL PARTNER ROSE HOLLOW CROSSING, INC. Attest: Bruce E. Toll By: Robert I. Toll --------------------------- -------------- President -39- LIMITED PARTNERSHIP AGREEMENT COUNTERPART SIGNATURE PAGE Intending to be legally bound by the Limited Partnership Agreement (the "Agreement") attached hereto and to become a Partner thereof on acceptance by the General Partner, the undersigned has executed the Agreement by executing this Counterpart Signature Page which the General Partner is authorized to attach to the Agreement on such acceptance. POWER OF ATTORNEY Each Limited Partner does hereby irrevocably constitute and appoint the General Partner his true and lawful attorney-in-fact, in his name, place and stead, to execute, acknowledge, swear to and file: (i) Any certificate (including without limitation the Certificate and fictitious name certificates) or other instrument, which may be required to be filed by the Partnership under the laws of any State or of the United States or deemed necessary or desirable to accomplish the purposes of the Partnership; and (ii) Any and all amendments, modifications, or cancellations of such certificate or instrument, including without limitation any amendment required to admit any substitute or additional Limited Partner or General Partner, to clarify any incorrect statement in the Certificate, to reflect any withdrawals from the Capital Accounts of the Partners, or cancel the Agreement and the Certificate upon the dissolution and termination of the Partnership, all in accordance with the provisions of the Agreement. LIMITED PARTNER Robert I. Toll --------------------- (Name) Robert I. Toll P.O. Box 224, Solebury, PA 18963 (Residence Address) -40- STATE OF PENNSYLVANIA : : COUNTY OF MONTGOMERY : On this 19th day of December, 1980, before me the undersigned Notary Public appeared Robert I. Toll the person who signed the foregoing Agreement known to me to be the person whose name is subscribed thereto, and acknowledged that he executed the same for the purposes therein contained. Dianne E. Wilson ------------------------------ Notary Public [SEAL] -41- LIMITED PARTNERSHIP AGREEMENT COUNTERPART SIGNATURE PAGE Intending to be legally bound by the Limited Partnership Agreement (the "Agreement") attached hereto and to become a Partner thereof on acceptance by the General Partners the undersigned has executed the Agreement by executing this Counterpart Signature Page which the General Partner is authorized to attach to the Agreement on such acceptance. POWER OF ATTORNEY Each Limited Partner does hereby irrevocably constitute and appoint the General Partner his true and lawful attorney-in-fact, in his name, place and stead, to execute, acknowledge, swear to and file: (i) Any certificate (including without limitation the Certificate and fictitious name certificates) or other instrument which may be required to be filed by the Partnership under the laws of any State or of the United States or deemed necessary or desirable to accomplish the purposes of the Partnership; and (ii) Any and all amendments, modifications, or cancellations of such certificate or instrument, including without limitation any amendment required to admit any substitute or additional Limited Partner or General Partner, to clarify any incorrect statement in the Certificate, to reflect any withdrawals from the Capital Accounts of the Partners, or cancel the Agreement and the Certificate upon the dissolution and termination of the Partnership, all in accordance with the provisions of the Agreement. LIMITED PARTNER Bruce E. Toll ------------------------ (Name) Bruce E. Toll 1477 Rydal Road, Rydal, PA 19046 -42- STATE OF PENNSYLVANIA : : COUNTY OF MONTGOMERY : On this 19th day of December, 1980, before me the undersigned Notary Public appeared Bruce E. Toll the person who signed the foregoing Agreement known to me to be the person whose name is subscribed thereto, and acknowledged that he executed the same for the purposes therein contained. Dianne E. Wilson ------------------------------------- Notary Public [SEAL] -43- EX-3.94 90 ex3-94.txt EXHIBIT 3.94 Exhibit 3.94 BY - L A W S OF TOLL BROTHERS REAL ESTATE, INC. (FORMERLY MOUNTAIN VIEW REAL ESTATE, INC. ) ARTICLE I. SHAREHOLDERS SECTION 1. PLACE OF MEETINGS. All meetings of the shareholders shall be held at the office of the corporation or at such place within or without the Commonwealth of Pennsylvania as may be fixed from time to time by the Board of Directors by resolution regularly adopted and/or as may be set forth in the notice calling the meeting. SECTION 2. ANNUAL MEETING OF SHAREHOLDERS. The annual meeting of shareholders for the election of directors and the transaction of other business shall be held ninety (90) days after the close of the fiscal or calendar year commencing in the year following the year of creation. If the annual meeting date shall fall upon a legal holiday, the meeting shall be held on the next succeeding business day. SECTION 3. VOTING. Each shareholder entitled to vote in accordance with the terms of the Articles of Incorporation and in accordance with the provisions of these By-Laws shall be entitled to one vote, in person or by proxy, for each share of stock entitled to vote held by such shareholder, provided, however, that in all elections for directors, every shareholder entitled to vote shall have the right, in person or by proxy, to multiply the number of votes to which he may be entitled by the number of directors to be elected, and he may cast the whole number of such votes for one candidate or he may distribute them among any two or more candidates, and the candidates receiving the highest number of votes, up to the number of directors to be elected, shall be elected. The vote for directors or upon any question which may come before a shareholders' meeting need not be by ballot except upon demand made by a shareholder at the election before the voting begins. All elections shall be had and all questions decided by plurality vote, except as otherwise provided by the Articles of Incorporation and/or by the laws of the Commonwealth of Pennsylvania. The officer having charge of the transfer books, shall make, at least five (5) days before each meeting of the shareholders, a complete list of the shareholders entitled to vote at the meeting; arranged in alphabetical order, with the address of and the number of shares held by each, which list shall be kept on file at the registered office and shall be subject to the inspection of any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. SECTION 4. QUORUM. Any number of shareholders together holding at least a majority of the stock issued and outstanding and entitled to vote thereat, who shall be present in person or represented by proxy at any meeting duly called, shall constitute a quorum for the transaction of business. -1- SECTION 5. ADJOURNMENT OF MEETINGS. If less than a quorum shall be in attendance at any time for which the meeting shall have been called, the meeting may, after the lapse of at least half an hour, be adjourned from day to day or for such longer periods, not exceeding fifteen (15) days each, as the holders of a majority of the shares present in person or by proxy shall direct, provided, however, that at the second adjourned meeting, those shareholders in attendance, although less than a quorum, shall nevertheless constitute a quorum for the purpose of electing directors. SECTION 6. SPECIAL MEETINGS: HOW CALLED. Special meetings of the shareholders may be called by the President or Secretary, and shall be called upon a request in writing therefor, stating the purpose or purposes thereof, delivered to the Secretary, signed by a majority of the directors, or by the holders of not less than twenty (20) percent of all the shares outstanding and entitled to vote. SECTION 7. NOTICE OF SHAREHOLDERS' MEETINGS. Written or printed notice, stating the place and time of every meeting, and the general nature of the business to be considered, shall be given by or at the direction of the person authorized to call the meeting, to each shareholder entitled to vote thereat at his last known post office address, at least ten (10) days before the meeting in the case of an annual meeting, and five (5) days before the meeting in the case of a special meeting, unless otherwise provided by law. At any special meeting of shareholders no business other than that stated in the notice shall be transacted without the unanimous consent of all the shareholders entitled to vote thereat. SECTION 8. FINANCIAL REPORT TO SHAREHOLDERS. It shall not be necessary for the directors to cause to be sent to the shareholders the financial report set forth in section three hundred eighteen (318) of the Business Corporation Law. ARTICLE II. DIRECTORS SECTION 1. NUMBER, TERM, QUORUM. The number of directors shall be two (2). The Board shall consist of at least three (3) members except that where all shares are owned beneficially of record by one (1) or two (2) shareholders the number of directors may be less than three (3) but not less than the number of shareholders. The directors shall be elected by plurality vote at the annual meeting of the shareholders and each director shall be elected for a term of at least one (1) year and except in the event of his resignation shall serve until his successor shall be elected and shall qualify. Directors need not be shareholders. Directors must be of full age but need not be residents of the Commonwealth. At any meeting of directors, a majority of the directors shall constitute a quorum for the transaction of business. If at any meeting of the board there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at said meeting which shall be so adjourned. SECTION 2. ANNUAL MEETING OF DIRECTORS. The Board of Directors shall hold an annual meeting immediately after the annual meeting of the shareholders, if a quorum be present, for purposes of organization, the election of officers and the regular transaction of business; or such meeting may be held at such other time and place as may be fixed by consent in writing of all the directors. -2- SECTION 3. ELECTION OF OFFICERS. At their annual meeting, or at any subsequent meeting called for the purpose, the directors shall elect a President, a Treasurer and a Secretary, and there may also be one or more Vice-Presidents and such other officers and assistant officers as the needs of the corporation may require, none of whom need be directors. Such officers and assistant officers shall hold office until the next annual election of officers and until their successors are elected and qualify. SECTION 4. REGULAR MEETINGS. Regular meetings of the directors may be held without notice at such places and times as shall be determined from time to time by resolution of the directors. SECTION 5. SPECIAL MEETINGS: HOW CALLED: NOTICE. Special meetings of the Board of Directors may be called by the President, or by the Secretary on the written request of any director on two (2) days notice to each director. SECTION 6. GENERAL POWERS OF DIRECTORS. The Board of Directors shall have the management of the business of the corporation, and subject to the restrictions imposed by law, by the Articles of Incorporation, or by these By-Laws, may exercise all the powers of the corporation. SECTION 7. COMPENSATION OF DIRECTORS. Directors may receive compensation for their services as directors, or by resolution of the board a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Any director may serve the corporation in any other capacity as an officer, agent, or otherwise, and receive compensation therefor. ARTICLE III. OFFICERS SECTION 1. DESIGNATIONS. The officers of the corporation shall be a President, a Secretary and a Treasurer, and there may also be a Chairman of the Board of Directors, one or more Vice-Presidents, and such other officers as may from time to time be elected or appointed by the Board of Directors. More than two offices may be held by the same person. SECTION 2. CHAIRMAN. The Chairman of the Board of Directors, if one be elected, shall preside at all meetings of the Board of Directors and he shall have and perform such other duties as from time to time may be assigned to him by the Board of Directors. SECTION 3. PRESIDENT. The President shall preside at all meetings of the shareholders if present thereat, and in the absence or non-election of the Chairman of the Board of Directors, he shall preside at all meetings of the directors. He shall be the chief executive officer of the corporation and shall exercise detailed supervision over the business of the corporation and over its several officers, subject, however, to the control of the Board of Directors. SECTION 4. VICE-PRESIDENT. The Vice-President or Vice-Presidents, if any, in the order of their seniority and in the absence of the President, or in the event of his inability to act, shall perform the functions of that office, and such other duties as may be assigned to them from time to time by the Board of Directors. SECTION 5. SECRETARY. The Secretary shall give notice of all meetings of shareholders and directors, and all other notices required by law or by these By-Laws. He shall record all the proceedings of the meetings of the corporation and of the Board of Directors, and shall perform such other duties as may be assigned to him by the directors or the President. He shall have the custody of the seal of the corporation, and shall affix the same to all instruments requiring it, when authorized by the directors or the President, and attest the same. -3- SECTION 6. TREASURER. The Treasurer shall have the custody of all funds, securities and other valuable documents of the corporation; he shall receive and give or cause to be given receipts and acquaintances for moneys paid in on account of the corporation and shall pay out of the funds on hand all just debts of the corporation; and he shall perform all the other duties incident to the office of Treasurer. SECTION 7. OTHER OFFICERS. All other officers elected or appointed by the Board of Directors shall have such powers and shall perform such duties as shall be assigned to them by the directors. ARTICLE IV. RESIGNATIONS: FILLING OF VACANCIES: INCREASE OF NUMBER OF DIRECTORS SECTION 1. RESIGNATIONS. Any director, member of a committee or other officer may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective. SECTION 2. FILLING OF VACANCIES. If the office of any director, member of a committee or other officer becomes vacant, the remaining directors in office, though less than a quorum, by a majority vote, may elect any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his successor shall be duly elected by the shareholders at the next annual meeting or at any special meeting duly called for that purpose and held prior thereto. If no director remains, the vacancy on the Board of Directors shall be filled by action of the shareholders. SECTION 3. INCREASE OF NUMBER OF DIRECTORS. The number of directors may be increased at any time by amendment of these By-Laws, by the affirmative vote of a majority of the directors or, by the affirmative vote of a majority in interest of the shareholders, at any regular or special meeting, called and held for such purpose, and by like vote the additional directors may be elected at such meeting to hold office until the next annual meeting of the shareholders or at any special meeting duly called for that purpose and held prior thereto. ARTICLE V. CAPITAL STOCK SECTION 1. CERTIFICATES OF STOCK. Certificates of stock, numbered and with the seal of the corporation affixed, or with a facsimile of the seal engraved or printed thereon, signed by the President or the Vice President and by the Secretary, or the Treasurer, shall be issued to each shareholder certifying the number of shares owned by him in the corporation. SECTION 2. LOST CERTIFICATES. A new certificate of stock may be issued in the place of any certificate theretofore issued by the corporation, alleged to have been lost or destroyed, and the directors, in their discretion, may require the owner of the lost or destroyed certificate, or his legal representatives, to give the corporation a bond, in such sum as they may direct, not exceeding double the value of the stock to indemnify the corporation against any claim that may be made against it on account of the alleged loss of any such certificate. -4- SECTION 3. TRANSFER OF SHARES. The shares of stock of the corporation shall be transferable only upon its books by the holders thereof in person or by their duly authorized attorneys or legal representatives, and upon such transfer the old certificates shall be surrendered to the corporation and canceled and new certificates shall thereupon be issued. ARTICLE VI. MISCELLANEOUS PROVISIONS SECTION 1. CORPORATE SEAL. The corporate seal shall be circular in form and shall contain the name of the corporation, the year of its creation and the words "CORPORATE SEAL PENNSYLVANIA". Said seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. SECTION 2. FISCAL YEAR. The fiscal year of the corporation shall be determined by resolution of the Board of Directors. SECTION 3. OFFICES AND RECORDS. Unless and until changed, as provided by law, the registered office of the corporation shall be established and maintained at the address set forth in the Articles of Incorporation. An original or duplicate record of the proceedings of the shareholders and of the directors, and the original or a copy of the By-Laws, certified by the Secretary, shall be kept at the registered office or the principal place of business and an original or duplicate share register and the books or records of account shall likewise be kept at the registered office or the principal place of business. SECTION 4. CHECKS, DRAFTS, NOTES. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation shall be signed by such officer or officers, agent or agents of the corporation, and in such manner as shall from time to time be determined by resolution of the Board of Directors. SECTION 5. WAIVER OF NOTICE. Any notice required to be given under these By-Laws may be waived by the person entitled thereto. Shareholders not entitled to vote shall not be entitled to receive notice of any meetings except as otherwise provided by statute. ARTICLE VII. COMMITTEES SECTION 1. In the event the number of directors is, or is increased to, three or more, the Board of Directors may by resolution adopted by a majority of the whole board, delegate two or more of its number to constitute an Executive Committee, which, to the extent provided in such resolution, shall have and may exercise the authority of the Board of Directors in the management of the business of the corporation. SECTION 2. The committee shall keep regular minutes of its proceedings and report the same to the Board when required. -5- ARTICLE VIII. WRITTEN CONSENT SECTION 1. ACTION BY WRITTEN CONSENT IN LIEU OF MEETINGS. Any action required or permitted to be taken at a meeting of the shareholders or of the Board of Directors or of any committee thereof may be taken without a meeting if a consent in writing setting forth the action so taken shall be signed by all of the shareholders entitled to notice of or to vote with respect to the subject matter thereof, or by all of the members of the Board or of such committee, as the case may be, and such consent shall have the same force and effect as a unanimous vote. ARTICLE IX. Deleted 10/29/93 ARTICLE X. AMENDMENTS SECTION 1. AMENDMENT OF BY-LAWS. The shareholders, by the affirmative vote of the holders of a majority of the shares issued and outstanding and entitled to vote, or the directors, by the affirmative vote of a majority of the directors, may at any meeting, provided the substance of the proposed amendment shall have been stated in the notice of the meeting, amend or alter any of these By-Laws. EXHIBIT A ARTICLE XI - INDEMNIFICATION SECTION 1. ACTIONS BY THIRD PARTIES. The corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful. SECTION 2. ACTIONS BY OR IN THE RIGHT OF THE CORPORATION. The corporation shall indemnify any person who was or is party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that he is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. SECTION 3. EXPENSES OF SUCCESSFUL DEFENSE. To the extent that a director, officer, employee or agent of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in Sections 8.1 and 8.2 of these By-Laws, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorney's fees) actually and reasonably incurred by him in connection therewith. SECTION 4. DETERMINATION THAT INDEMNIFICATION IS PROPER. Any indemnification under Sections XI. 1 and XI.2 of these By-Laws, (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances because he has met the applicable standard of conduct set forth in Sections XI. 1 and XI. 2 of these By-Laws. Such determination shall be made (1) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (2) if such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (3) by the shareholders. -6- SECTION 5. ADVANCES. Expenses incurred in defending a civil or criminal action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors in the specific case upon receipt of an undertaking by or on behalf of the director, officer, employee or agent to repay such amount unless it shall ultimately be determined that he is entitled to be indemnified by the corporation as authorized in this section. SECTION 6. PROVISIONS NOT EXCLUSIVE. The indemnification provided by this Article XI shall not be deemed exclusive of any other rights to which those seeking indemnification may be entitled under any By-Law, agreement, vote of shareholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. SECTION 7. INSURANCE. The corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Article XI. SECTION 8. CONSTITUENT CORPORATION. For purposes of this Article XI, references to "the corporation" shall included, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify the directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under the provisions of this Article XI with respect to the resulting or surviving corporation as he would have with respect to such constituent corporation if its separate existence had continued. SECTION 9. OTHER ENTERPRISES; FINES; SERVICES. For purposes of this Article XI, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to "serving at the request of the corporation" shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner "not opposed to the best interests of the corporation" as referred to in this Article XI. SECTION 10. CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSE. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article XI shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. -7- EX-3.95 91 ex3-95.txt EXHIBIT 3.95 Exhibit 3.95 PARTNERSHIP AGREEMENT THIS IS AN AGREEMENT dated as of July 1, 1986, by and between TOLL BROS., INC., a Pennsylvania corporation ("TBI"), and HUNTINGDON. INC., a Pennsylvania corporation ("Huntingdon"). BACKGROUND A. TBI has entered into an agreement attached hereto as Exhibit "A" and incorporated herein by reference (the "Agreement of Sale") to acquire from the General Services Administration the property (the "Property") described in the Agreement of Sale. B. The parties hereto (hereinafter sometimes referred to individually as a "Partner" and collectively as the "Partners") now desire to form a general partnership, to which TBI is herein contributing all of its right, title and interest in and to the Agreement of Sale, and the Property, and which will be governed by the terms and conditions of this Agreement to acquire and develop the Property. TERMS 1. Formation of Partnership; Name 1.1 The Partners hereby form a partnership (the "Partnership") under the Pennsylvania Uniform Partnership Act (the "Act") and agree that the Partnership will be subject to, and governed by, the terms and conditions of this Agreement. 1.2 The name of the Partnership is "TOLL NAVAL ASSOCIATES." 2. Purpose The purpose or purposes of the Partnership are as follows: 2.1 To receive by way of contribution from TBI under Section 5.1 all of the rights of TBI in and to the Agreement of Sale and the Property; 2.2 To acquire and hold the Property for investment; and 2.3 To engage in such activities, operations and businesses, and to enter into such agreements, contracts and financing arrangements as may be necessary or appropriate in connection with the foregoing. 3. Term The Partnership shall commence on the date hereof and shall continue in existence until December 31, 2039 unless sooner terminated in accordance with Paragraph 17, below. 4. Place of Business The Partnership shall have its principal place of business at 101 Witmer Road, Horsham, Pennsylvania 19044, or at such other place as the Partners may determine from time to time. 5. Capital Contributions TBI shall, and by execution hereof hereby does, contribute and assign to the Partnership all of its right, title and interest in and to the Agreement of Sale and the Property, as its initial capital contribution. Huntingdon shall contribute to the Partnership the sum of One Thousand Dollars ($1,000). 6. Advances 6.1 If any Partner shall advance any moneys to the Partnership in excess of his capital contributions under Section 5, the amount of any such advance shall neither result in an increase of his Percentage Interest (as hereinafter defined) nor entitle him to any increase in his share of the distributions of the Partnership and shall not be credited to his Capital Account (as hereinafter defined), but the amount of any such advance shall be an obligation of the Partnership to such Partner and shall be repaid to him with interest at one percent (1%) in excess of the highest rate announced from time to time by Chase Manhattan Bank N.A. as its "prime rate" for unsecured short-term commercial loans, as in effect from time to time. or such lesser rate as may then be the maximum legal rate of interest such advance may bear. All advances shall be payable or collectible only out of the Partnership's assets and the Partners shall not be personally obligated to repay any part thereof. 6.2 To the extent any Partner has advanced any moneys to third parties on account of the Agreement of Sale or the Property, prior to the date hereof, such moneys shall be treated as advances to the Partnership and shall be repaid, together with interest from the date(s) such moneys were advanced, as soon as possible after the date hereof. 7. Capital Accounts 7.1 A capital account determined and maintained in accordance with the rules contained in Regulation Section 1.704-1(b)(2)(iv) shall be established for each Partner. Each Partner's capital account shall thus be credited with the amount of his capital contributions made to the Partnership (including any deemed contributions under Section 8.2.3) and his allocable share of the Partnership's profits and gains. and shall be charged with distributions made to him by the Partnership and his allocable share of the Partnership's losses and deductions. (Hereinafter, capital accounts of the Partnership shall be collectively referred to as the "Capital Accounts" and individually as a "Capital Account"). 7.2 Any Partner, including an additional or substituted Limited Partner or an assignee of a Partner, who shall receive an interest in the Partnership or whose interest in the Partnership shall be increased by reason of the receipt of all or part of the interest of another Partner, shall have a Capital Account which has been appropriately adjusted pursuant to the rules contained in Regulation Section 1.704-1(b)(2)(iv) to reflect any such receipt. -2- 7.3 No partner shall have the right to withdraw or reduce his contribution of capital to the Partnership. Capital contributions shall be returned only upon the dissolution of the Partnership and distribution of its assets as provided in Section 18. 7.4 No interest shall accrue or be paid on the Capital Accounts of the Partners. 8. Percentage Interests and Allocations 8.1 The respective Percentage Interest of each Partner (the "Percentage Interest") in the Partnership is as follows: Name of Partner Percentage Interest --------------- ------------------- TBI 98% Huntingdon 2% 8.2 Allocation of Profit or Loss 8.2.1 Except as provided in sections 8.2.2, 8.2.3 and 8.4, all Profit or Loss, as well as all other items of Partnership income, gain, loss or deduction required to be allocated separately under this Agreement or the Code, shall be allocated in accordance with the Percentage Interests of the Partners of the Partnership, as such Percentage Interests. 8.2.2 To the extent that an allocation of Partnership Loss or deduction under Section 8.2.1 would cause or increase a deficit balance in a Partner's Capital Account, such Loss or deduction shall not be allocated as provided in Section 8.2.1, but shall first be allocated to any Partners with positive balances in their Capital Accounts, in proportion to the relative positive balances in such positive Capital Accounts, until no Partner has a positive balance in his or its Capital Account, and any remaining Loss or deduction shall be allocated in the following manner: (i) Any Loss or deduction which is not attributable to Non-Recourse Debt secured by Partnership property (as such attribution is determined in the Regulations promulgated under Section 704 of the Code) shall be allocated to the Partner or Partners who bear ultimate personal liability for the repayment of such debt, in proportion in which they are liable for such debt; and (ii) Any Loss or deduction which is attributable to Non-Recourse Debt which is secured by Partnership property (as such attribution is determined in the Regulations promulgated under Section 704 of the Code) shall be allocated among the Partners in accordance with their Percentage Interests. 8.2.3 If any Partner makes an advance to the Partnership pursuant to Section 6 or otherwise and interest expense is imputed to the Partnership pursuant to the imputed interest provisions of the Code and Regulations, all deductions attributable to such imputed interest expense shall be allocated to the Partner making such advance and such Partner shall be deemed to have contributed to the Partnership the amount of such interest expense as a capital contribution. Default Loans are between the Contributing Partner and the Non-Contributing Partner and interest income or expense attributable thereto shall not be reflected by the Partnership. -3- 8.3 Allocation of Credits. Any federal, state or local tax credits arising from the Partnership's operations shall be allocated among the Partners in accordance with Regulation Section 1.704-1(b)(4)(ii), as amended from time to time. 8.4 Allocation of Gain or Loss Arising from a Terminating Event 8.4.1 All income and gain recognized by the Partnership in connection with a Sale of Assets or the occurrence of another event causing termination of the Partnership (a "Terminating Event") shall be allocated among the Partners in the following priority: (i) First, such income and gain shall be allocated to the Partners having deficit balances in their Capital Accounts (after such Capital Accounts have been adjusted to reflect all appropriate adjustments for the period prior to the Terminating Event, other than adjustments relating to the income, gain, loss, deductions and distributions arising from the Terminating Event) in proportion to and to the extent of the aggregate of such deficit Capital Accounts: and (ii) Thereafter, any remaining income and gain shall be allocated among the Partners in accordance with their respective Percentage Interests as of the time of the Terminating Event. 8.4.2 Any net loss recognized by the Partnership in connection with a Terminating Event shall be allocated among the Partners in the following order of priority: (i) First, if all the Partners have positive balances in their Capital Accounts (after such Capital Accounts have been adjusted to reflect all appropriate adjustments for the period prior to the Terminating Event, other than adjustments relating to the income, gain, loss, deductions and distributions arising from the Terminating Event), such net loss shall. to the extent possible, be allocated so that the ratio of the positive balance in each Partners Capital Account to the aggregate of all positive Capital Account balances is equal to his Percentage Interest; (ii) Thereafter, any remaining net loss shall be allocated to the Partners with positive Capital Account balances, in proportion to and to the extent of such positive Capital Accounts balances; and (iii) Any remaining net loss shall be allocated to the Partners in proportion to their Percentage Interests. -4- 8.4.3 The Partners recognize that all or part of the gain. if any, recognized by the Partnership upon a Terminating Event may be treated as ordinary income for federal income tax purposes as a result of the application of Sections 1245 or 1250 of the Code ("Depreciation Recapture"). It is the Partners' understanding and agreement that, to the extent possible without increasing the total gain on such disposition allocated to a Partner pursuant to Section 8.4.1. the Depreciation Recapture will be allocated among the Partners in proportion to the cost recovery (depreciation) deductions, with respect to Section 1245 property. and the additional depreciation (as defined in Section 1250(b)(1) of the Code), with respect to Section 1250 property, previously allocated to the Partners. 8.5 Allocation in the Event of Transfer. If a Partnership interest is transferred in accordance with Section 15, there shall be allocated to each Partner who held the transferred interest during the Fiscal Year of transfer so much of the Partnership's Profit or Loss for such Fiscal Year as is allocable to such Partner under the Code and Regulations in effect with respect to such transferred interest. If the Code or Regulations provide for more than one manner of allocating Profit or Loss to such Partner, or if the General Partner is given discretion under the Code or Regulations regarding the manner of allocating Profit or Loss with respect to holders of a transferred interest, such Profit or Loss shall be allocated among the Partners who held such Partnership interest during the Fiscal Year in a manner determined. consistently with the Code or Regulations, by the General Partner, in his sole discretion. 8.6 Certain Definitions. In addition to the terms defined elsewhere in this Agreement, as used in this Agreement the following terms shall have the meanings specified below: "Code" - the Internal Revenue Code of 1954, as amended. "Depreciation Recapture" - that part of the gain recognized by the Partnership on a Sale of Assets or other Terminating Event which is treated as ordinary income for federal income tax purposes as a result of the application of Sections 1245 or 1250 of the Code. "Fiscal Year" - the calendar year. "Loss" - the net loss of the Partnership as calculated for federal income tax purposes with respect to each Fiscal Year, determined at the close of the Partnership's Fiscal Year, but without regard to any item of Partnership income, gain, loss or deduction required to be allocated separately under the Code, the Regulations or this Agreement. "Non-Recourse Debt" - that portion of any debt of the Partnership which is treated as non-recourse debt for purposes of the Treasury Regulations promulgated under Section 704 of the Code. "Profit" - the net income of the Partnership as calculated for federal income tax purposes with respect to each Fiscal Year, determined at the close of the Partnership's Fiscal Year, but without regard to any item of Partnership income, gain, loss or deduction required to be allocated separately under the Code. the Regulations or this Agreement. -5- "Regulation" or "Regulations" - final, temporary or proposed Treasury Regulations promulgated under the Code. "Sale of Assets" - (a) the sale or other disposition of all or substantially all of the Partnership's assets; (b) the taking of all or substantially all of the Partnership's assets by eminent domain; and (c) any other taxable disposition of all or substantially all of the Partnership's assets. "Terminating Event" - a Sale of Assets or the occurrence of another event causing termination of the Partnership. 9. Cash Distributions from Other Than a Terminating Event 9.1 Except in connection with any distribution of funds arising from a Terminating Event, which distribution is governed by Section 18 hereof, distributions shall be made by the Partnership to the Partners at such time or times as the Partners, pursuant to Section 14 have, agree to make such distributions. 9.2 All distributions pursuant to this Section 9 shall be made to the Partners in accordance with their Percentage Interests at the time of distribution. 10. Title to Assets; Transfers to Partnerships and Joint Ventures The title to the Property and all other assets of the Partnership shall be held in the name of the Partnership or the name of such nominee or trustee for the Partnership as the Partners pursuant to Section 14 shall decide. 11. Bank Accounts All funds of the Partnership shall be deposited in bank, savings or share accounts with such banks, savings and loan associations or other institutions as shall be determined by, and shall be drawn upon by the persons from time to time approved by, the Partners in the manner described in Section 14. 12. Books and Records 12.1 The fiscal year of the Partnership shall be the calendar year. 12.2 The books and records of the Partnership shall be kept at the principal place of business of the Partnership and shall be open for inspection by the Partners or their representatives at reasonable times during business hours. The books and records of the Partnership shall be kept on a cash or accrual basis, as the Partners may determine in accordance with Section 14. -6- 12.3 The Partners shall receive unaudited quarterly statements (for the first three calendar quarters of each year) showing net profit or loss (cumulative), and a balance sheet of the Partnership. Such statements shall be prepared and distributed not later than forty-five (45) days after the end of each of such calendar quarters. 12.4 The Partners shall receive not later than ninety (90) days after the end of each calendar year annual statements showing the net profit or loss of the Partnership, the balance sheet of the Partnership, the contributions of the Partners to the Partnership, the capital accounts of each Partner, the taxable profit or loss allocated to each Partner, and the cash distributions to the Partners. All such statements will be prepared in accordance with generally accepted accounting principles and will be examined by such firm of certified public accountants selected by the Partners in accordance with Section 14. 13. Borrowing of Funds for the Partnership The Partners recognize that the Partnership shall need to borrow money in connection with the ownership and development of the Property and shall in connection with such borrowings from banks, savings and loan associations or other institutional lenders. be required to secure such borrowings with one or more mortgages on the Property and all improvements thereon and by one or more security interests in any or all of the personal property of the Partnership. Each of the Partners agrees to cooperate in all applications for loans to the Partnership and agrees to execute notes, bonds, warrants, surety agreements, guarantees or any other documents required to effectuate any borrowings by the Partnership. 14. Management of Partnership 14.1 Each Partner shall at all times keep the other Partner fully informed as to all his activities on behalf of the Partnership, and the Partners will meet as often as necessary to discuss and review plans and policies relating to the Property. its development, and the business of the Partnership. 14.2 All decisions involving the business of the Partnership shall be made by TBI. as the Managing Partner of the Partnership. 14.3 Without limitation on the generality of the foregoing TBI. as Managing Partner, may: 14.3.1 Sell, mortgage. pledge or otherwise hypothecate, assign or transfer all or any part of the Property, any other property of the Partnership or any interest therein; 14.3.2 Borrow or commit to borrow any money on behalf of the Partnership or utilize any of the assets of the Partnership as security for loans; or 14.3.3 Lend any funds of the Partnership or enter into any agreement whereby the Partnership will become obligated as surety, guarantor, endorser or accommodation party for any other person or firm. -7- 15. Transfer of Interest 15.1 No Partner shall at any time sell, transfer, assign, devise, bequeath, mortgage, pledge or hypothecate or otherwise dispose of (collectively called "Transfer") all or any part of his interest in the Partnership, or any part thereof, voluntarily or involuntarily, by operation of law, by testamentary disposition or intestate succession, or otherwise to any person or entity of any nature whatsoever except (i) upon the prior written consent of TBI, which consent may be reasonably or unreasonably withheld, or (ii) as permitted by Section 15.2 hereof. 15.2 Any individual Partner may by testamentary disposition or intestate succession Transfer all or any part of his interest in the Partnership (i) to his spouse and/or one or more of his issue, or (ii) to a trust or trusts created for the benefit of his spouse and/or one or more of his issue. provided that any such transferee shall by an agreement in writing, assume performance of the terms and conditions of this Agreement as a Partner. In the event that any individual Partner shall not be survived by his spouse or issue such Partner may by testamentary disposition or intestate succession Transfer all or any part of his interest in the Partnership (A) to any person or persons who would be eligible to receive any part of his estate under the intestate laws of his state of domicile, or (B) to a trust or trusts created for the benefit of any such person or persons; provided that any such transferee shall, by an agreement in writing, assume performance of the terms and conditions of this Agreement as a Partner. Any transferee permitted by the preceding two sentences shall be referred to in this Agreement as a "Permitted Transferee." In the event there shall be more than one Permitted Transferee to whom all or any part of the interest of any one individual Partner shall be transferred pursuant to this subparagraph, then all such Permitted Transferees shall appoint a single trustee, attorney-in-fact or agent. to register their vote pursuant to Section 14 on all decisions affecting the Partnership and its operations. 15.3 If any Partner shall attempt or purport to Transfer his interest, or any part thereof, in the Partnership in violation of this Section 15, any such attempted or purported Transfer shall be null and void and of no legal effect. 15.4 Any Transfer permitted by this Partnership Agreement or otherwise shall not result in .a termination of the Partnership. 16. Intentionally Deleted 17. Termination of Partnership 17.1 The Partnership shall be dissolved and terminated and its property and assets liquidated and distributed in accordance with the provisions of Section 18 upon the occurrence of any one of the following events: 17.1.1 The decision of TBI to dissolve and terminate the Partnership; 17.1.2 The sale or other disposition by the Partnership of all its right, title and interest in and to all of its assets and the receipt by the Partnership of the purchase price in full and in cash; or -8- 17.1.3 At 12:00 midnight, on December 31, 2039. 17.2 Upon the occurrence of an event not specified in Section 17.1 which would cause a dissolution of the Partnership under the Pennsylvania Uniform Partnership Act (the "Act") or otherwise under the laws of the Commonwealth of Pennsylvania, including, but not limited to, the death or bankruptcy of a Partner, the parties hereto and their respective successors and assigns agree that any such event shall not result in a termination of the Partnership or this Agreement and further agree to take all action which is necessary or desirable to avoid any interruption of the Partnership business, and to cause the Partnership to be continued under the Act. 18. Distributions Upon Terminating; Payment of Negative Capital Accounts 18.1 Upon the termination of the Partnership, the parties to the Partnership will wind up and settle its accounts in the following order of priority: 18.1.1 To the payment of all debts, liabilities and expenses of the Partnership (other than advances that may have been made by any of the Partners under Section 6, above); 18.1.2 To the setting up of any reserves which the Partners may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Partnership or of the Partners arising out of or in connection with the affairs of the Partnership or its liquidation. Such reserves will be paid over by the Partners to any attorney-at-law of the Commonwealth of Pennsylvania, in escrow, to be held by him or her for the purpose of disbursing such reserves in payment of any of the aforementioned contingencies and, at the expiration of such period as the parties may deem appropriate, to distribute the balance then remaining in accordance with this Section 18; 18.1.3 To the repayment of any advances plus accrued interest thereon that may have been made by any of the Partners to the Partnership pursuant to Section 6, above; and 18.1.4 The balance, to the Partners in proportion to the positive balances of their Capital Accounts, after reflecting all allocations under Section 8 and all prior distributions under this Section 18.1. 18.2 In the event any Partner has a negative balance in his Capital Account at the time of termination of the Partnership, and after reflecting all allocations of Profit, Loss, Gain and Deduction under Section 8 and all distributions under Sections 18.1.1 to 18.1.3, inclusive, such Partner shall be required to contribute to the Partnership the amount of such negative capital account. 19. Miscellaneous 19.1 All notices, elections, offers, acceptances, demands, consents, and other communications permitted or required to be made under this Agreement shall be in writing to be effective, signed by the Partner giving the same and shall be delivered personally, or sent by registered or certified mail, to the other Partners, at the address of such Partners shown on the books of the Partnership, or at such other address as may be supplied in writing in the manner set forth in this Section. The date of personal delivery or two business days after the date of mailing, as the case may be, shall be the date such notice or other communication is deemed to have been received. -9- 19.2 This Agreement shall be binding upon and shall inure to the benefit of the Partners, their respective successors and assigns, and each Partner agrees, on behalf of itself and its successors and assigns, to execute any instruments which may be necessary or desirable to carry out the purposes of this Agreement, and hereby authorizes and directs their successors and assigns, to execute such instruments. Each and every successor to any Partner, whether such successor acquires its interest by way of gift, purchase, foreclosure, or by any other method, shall hold such interest subject to all of the terms and provisions of this Agreement. It is the intention of the Partners that, during the term of this Agreement, the rights of the Partners and their successors and assigns as among themselves, shall be governed by the terms of this Agreement, and that the right of any Partner or successor to assign, transfer, sell or otherwise dispose of or deal with its interest in the Partnership shall be subject to the limitations and restrictions of this Agreement. 19.3 If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by law. 19.4 No change, modification or amendment of this Agreement shall be valid or binding upon the Partners unless such change or modification shall be in writing signed by the Partner or Partners against whom the same is sought to be enforced. 19.5 The remedies of the Partners under this Agreement are cumulative and shall not exclude any other remedies to which any Partners may be lawfully entitled. 19.6 The failure of any Partner to insist upon strict performance of a covenant hereunder or of any obligation hereunder or to exercise any right or remedy hereunder. regardless of how long such failure shall continue, shall not be a waiver of such Partner's right to demand strict compliance therewith in the future unless such waiver is written and signed by the Partner giving the same. 19.7 None of the provisions of this Agreement are intended to benefit, and none shall inure to the benefit of or be enforceable by, any creditors of the Partnership or any other third parties. 19.8 Each Partner agrees to execute such agreements, certificates, tax statements and returns, and other documents as may be required by law to effectuate this Agreement. 19.9 This Agreement contains the entire agreement between the Partners and supersedes all prior understandings and agreements between them concerning the subject matter hereof. No representations, warranties, conditions or agreements pertaining to the subject matter of this Agreement have been made by, or shall be binding upon, any of the Partners, except as expressly set forth herein. -10- 19.10 Titles or captions of articles and sections contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or the intent of any provision hereof. 19.11 Whenever required by the context, the singular number shall include the plural and the masculine or neuter gender shall include all genders. 19.12 This Agreement may be executed in multiple copies, each of which shall for all purposes constitute one Agreement which is binding on the Partners notwithstanding that all parties are not signatories to the same copy. 19.13 This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, including, without limitation the Pennsylvania Uniform Partnership Act. IN WITNESS WHEREOF, and intending to be legally bound hereby, the parties hereto have caused this Agreement to be duly executed as of the day and year first written above. PARTNERS TOLL BROS., INC. By: Bruce E. Toll --------------------------------------- HUNTINGDON. INC. By: Bruce E. Toll --------------------------------------- EX-3.96 92 ex3-96.txt EXHIBIT 3.96 Exhibit 3.96 TOLL PA GP CORP. formerly TOLL LAND CORP. NO. 35 BY-LAWS ARTICLE I. Offices. 1.1 Principal Office. The principal office of the Corporation shall be located at 3103 Philmont Avenue, Huntingdon Valley, PA 19006. The Corporation may also have offices at such other places as the Board of Directors may from time to time appoint or as the business of the corporation may require. 1.2 Registered Office. The registered office of the Corporation Registered the Commonwealth of Pennsylvania need not be identical with the said principal office, but may be changed from time to time as the Board of Directors may determine. ARTICLE II. Shareholders. 2.1 Annual Meeting. The annual meeting of the shareholders shall be held in each year commencing in 1993, at 10 o'clock a.m. local time on such date and at such time as the Board of Directors may adopt by a two-thirds vote thereof. The adoption of such other date or time shall be promptly recorded with the Secretary of the Corporation. If the day fixed for the annual meeting shall be a legal holiday in the Commonwealth of Pennsylvania, such meeting shall be held on the next succeeding business day. If the annual meeting has not been held during a calendar year, any shareholder may call such meeting by following the procedure set forth in Section 2.2 hereof. At the annual meeting, the shareholders shall elect Directors for the ensuing year and may transact such other business as may properly come before the meeting. 2.2 Special Meetings. Special meetings of the shareholders may be called at any time by the President, or by the Board of Directors, or by the shareholders entitled to cast at least one-fifth (1/5) of the votes which all shareholders are entitled to cast at the particular meeting. Upon written request of any person or persons who have duly called a special meeting, the Secretary shall fix the date of the meeting to be held not more than sixty (60) days after receipt of the request and give due notice thereof to the shareholders entitled to vote thereat. If the Secretary shall neglect or refuse to fix such date or give such notice, the person or persons calling the meeting may do so. 2.3 Place of Meeting. The Board of Directors may designate any place, either within, or without the Commonwealth of Pennsylvania (if a majority of the directors or shareholders thereof are citizens of another state), as the place of meeting for such directors or shareholders, except that the annual meeting for the election of officers of the Corporation must be held in the Commonwealth of Pennsylvania. If no designation is made by the Board of Directors, the place of meeting shall be at the principal office of the Corporation in the Commonwealth of Pennsylvania. 2.4 Notice of Meeting. Written notice shall, unless otherwise provided by statute, be given by, or at the direction of, the person authorized to call the meeting, to shareholders entitled to vote at the meeting who are shareholders as of the record date as provided in Section 2.6 hereof, not less than ten (10) nor more than fifty (50) days before the date of the meeting, either personally or by sending a copy thereof through the mail, or by telegram, charges prepaid, to the address of the shareholder appearing on the books of the Corporation, or supplied by the shareholder to the Corporation for the purpose of notice. Such notice shall state the place, date and hour of the meeting. When required by these By-Laws or by statute, such notice shall also state the general nature of the business to be transacted. 2.5 Sufficiency of Notice. Any notice required hereunder shall be deemed to have been given to the person entitled thereto (a) if sent by mail, when deposited in the United States mail, postage prepaid, or (b) when lodged with a telegraph office for transmission with charges prepaid, or (c) when delivered personally. Whenever notice is required to be given, a waiver thereof in writing signed by the person or persons entitled to such notice, whether signed before or after the time stated, shall be deemed equivalent to the giving of such notice. Attendance of a person at any meeting, either in person or by proxy, shall constitute a waiver of notice of such meeting, except where a person attends a meeting for the express and stated purpose of objecting to the transaction of any business because the meeting was not lawfully called or convened. 2.6 Record Date. The Board of Directors may fix in advance a date as the record date for the determination of shareholders entitled to notice of, or to vote at, any meeting of shareholders, or shareholders entitled to receive payment of any dividend or distribution, or in order to make a determination of shareholders for any other proper purpose, such date in any case to be not more than sixty (60) days and, in case of a meeting of shareholders, not less than ten (10) days, prior to the date for which such determination of shareholders is necessary or proper. If no record date is fixed for the determination of shareholders entitled to receive notice of, or to vote at, a meeting of shareholders, or shareholders entitled to receive payment of a dividend or such other entitlement, the date on which notice of the meeting is mailed, or the date on which the resolution of the Board of Directors declaring such dividend or other entitlement is adopted, as the case may be, shall be the record date for such determination of shareholders. 2.7 Voting List. The officer or agent having charge of the transfer book for shares of the Corporation shall make, at least ten (10) days before each meeting of shareholders, a complete list of the shareholders entitled to vote at the meeting, arranged in alphabetical order, with the address and the number of shares held by each. The list shall be kept on file at the principal office of the Corporation and shall be subject to inspection by any shareholder at any time during usual business hours, and shall also be produced and kept open at the time and place of the meeting, and shall be subject to the inspection of any shareholder during the whole time of the meeting. The stock ledger shall be used to determine who are the shareholders entitled to examine such list or stock ledger or to vote, in person, or by proxy, at any meeting of the shareholders. 2.8 Quorum. Except as otherwise required by law, the presence of shareholders, in person or by proxy, entitled to cast at least a majority of the votes which all Common Shareholders (plus such other shareholders who may from time to time be entitled to vote with the holders of Common Shares) are entitled to cast shall constitute a quorum. With respect to the consideration of any particular matter as to which the shareholders of any class or series shall be entitled to cast a vote separate from the vote of the Common Shareholders, the presence of shareholders, in person or by proxy, entitled to cast at least a majority of the votes which all such class or series of shareholders are entitled to cast on such particular matter shall constitute a quorum of such class or series of shareholders for the purpose of considering such matters. The shareholders present at a duly organized meeting can continue to do business until adjournment, notwithstanding the withdrawal of enough shareholders to leave less than a quorum. If a meeting cannot be organized because a quorum has not attended, those present may adjourn the meeting to such time and place as they may determine. When a meeting called for the election of directors has been once adjourned because a quorum had not attended, those shareholders entitled to vote in the election of directors who attend the second of such adjourned meetings, although less than a quorum as fixed in these By-Laws or in the Articles of Incorporation or by statute, shall nevertheless constitute a quorum for the purpose of electing directors. 2.9 Acts of Shareholders. Unless a greater or different vote shall be required as to a particular matter by the Articles of Incorporation or by these By-Laws or by applicable statute, an act authorized by the vote of the holders of a majority of those Common Shares (plus holders of such other shares which may from time to time be entitled to vote with the holders of Common Shares) present in person or by proxy at a duly organized meeting shall be the act of the shareholders. -2- 2.10 Adjournment. Adjournment or adjournments at any annual or special meeting may be taken as may be directed by a majority of votes cast by the shareholders present in person, or by proxy entitled to cast the votes which the Common Shareholders (plus such other shareholders who shall at the time be entitled to vote with the holders of Common Shares on the matters to be considered at the meeting) may cast. When a meeting is adjourned, it shall not be necessary to give any notice of the adjourned meeting other than by announcement at the meeting at which such adjournment is taken. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each shareholder of record entitled to vote at the meeting. Adjournment of any meeting at which directors are to be elected shall be adjourned only from day to day, or for such longer periods, not to exceed fifteen (15) days each, as directed by the shareholders present in person or by proxy, provided that they constitute at least a majority of the votes entitled to be cast at an election of directors. 2.11 Proxies. At all meetings of shareholders, a shareholder entitled to vote on a particular matter may vote in person entitled to vote on a particular matter may vote in person or may authorize another person or persons to act for him by proxy. Every proxy shall be executed in writing by the shareholder, or by his duly authorized attorney in fact. Such proxies shall be filed with the Secretary of the Corporation before or at the time of the meeting. A proxy, unless coupled with an interest, shall be revocable at will, notwithstanding any other agreement or any provision in the proxy to the contrary, but the revocation of the proxy shall not be effective until notice thereof has been given to the Secretary of the Corporation. The Secretary may treat any proxy delivered to him as valid, unless before the vote is counted or the authority is exercised, written notice of any invalidity, together with such supporting information as shall enable a judgment to be rendered, is given to the Secretary. 2.12 Voting Rights. Unless otherwise provided in the Articles of Incorporation or in a duly filed statement establishing the rights of classes or series, only the holders of Common Stock shall be entitled to vote at a meeting of the shareholders. 2.13 Nomination of Directors. Nominations for election to the office of director at an annual or special meeting of shareholders shall be made by the Board of Directors, or by the Executive Committee, or by petition in writing delivered to the Secretary of the Corporation not fewer than thirty-five (35) days prior to such shareholders' meeting, signed by the holders of at least one percent (1%) of the shareholders' shares entitled to be voted in the election of directors. Unless nominations shall have been made as aforesaid, they shall not be considered at such shareholders' meeting unless the number of persons nominated as aforesaid shall be fewer than the number of persons to be elected to the office of director at such meeting, in which events nominations may be made at the shareholders' meeting by any person entitled to vote in the election of directors. 2.14 Election by Ballot. The election of directors shall be by ballot upon demand before the voting begins by a shareholder entitled to vote at such election. Unless so demanded, voting need not be by ballot. 2.15 Inspectors of Election. In advance of any meeting of shareholders, the Board of Directors may appoint Inspectors of Election, who need not be shareholders, to act at such meeting or any adjournment thereof. The number of Inspectors shall be one or three. The Inspectors of Election shall determine the number of shares outstanding and the voting power of each; the shares represented at the meeting; the existence of a quorum, the authenticity, validity and effect of proxies; hear and determine all challenges and questions arising in connection with the right to vote; receive, count and tabulate all votes or ballots, and determine the result; and do such other acts as may be necessary and proper to conduct the election or vote with fairness to all shareholders. On request of the Chairman of the Meeting, or of any shareholder or his proxy, the Inspectors shall make a report in writing of any challenge of question or matter determined by them, and execute a certificate of any fact found by them. If there be three Inspectors of Election, the decision, act or certificate of a majority shall be effective in all respects as the decision and/or certificate of all. Any report or certificate made by the Inspectors of Election shall be prima facie evidence of the facts stated therein. 2.16 Consent of Shareholders in Lieu of Meeting. Any action which may be taken at any annual or special meeting of the shareholders or of a class of shareholders may be taken without a meeting, if a consent or consents in writing, setting forth the action so taken, shall be signed by all of the shareholders who would be entitled to vote at a meeting for such purpose and shall be filed with the Secretary of the Corporation. -3- Any action which may be taken at a meeting of the shareholders, or of a class of shareholder, may be taken without a meeting, if a consent, or consents, in writing to such action, setting forth the action so taken, shall be signed by the shareholders entitled to cast the greater of two-thirds (2/3) of the votes which all shareholders are entitled to cast at a meeting for such purpose or the minimum percentage of the vote required by the Pennsylvania Business Corporation Law (Act of May 5, 1933, P.L. 364, as amended) for the proposed action and shall be filed with the Secretary of the Corporation. Such action shall not become effective until after ten days' written notice of such consent in writing to such action shall have been given to each shareholder of record entitled to vote thereon. ARTICLE III. Board of Directors. 3.1 Number. Tenure and Qualifications. The business and affairs of the Corporation shall be managed by its Board of Directors, which shall be three (3) in number. The directors shall be elected at the annual meeting of the shareholders as provided in Section 2.1 of these By-Laws, and each director elected shall hold office until his successor is elected and qualified. Directors shall be natural persons of full age and need not be shareholders in the Corporation. 3.2 Powers and Authorization. In addition to the powers and authority by these By-Laws expressly conferred, the Board of Directors may exercise all the powers of the Corporation and do all lawful acts not by statute or by the Articles or by these By-Laws directed or required to be exercised or done only by the shareholders. The Board shall have the power to elect the Chairman of the Board by majority vote, to delegate any of the powers exercised or exercisable by the Board to any standing or special committee, or to any officer or agent, or to appoint any person to be the agent of the Corporation, with such powers, including the power to subdelegate, and upon such terms as the Board shall deem appropriate. 3.3 Meetings. Meetings of the Board of Directors shall be held at such times and places, either within or without the Commonwealth of Pennsylvania, as may be fixed by resolution of the Board, or by the President, or upon written demand of a majority of the directors. 3.4 Notice. Notice of a meeting of directors or of any committee of the Board of Directors shall be delivered at least one day prior to such meeting by oral, telegraphic or written notice. If mailed, such notice shall be deemed to be delivered on the second day following the day deposited in the United States mail, addressed to the director at his business address, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered on the day the telegram is delivered prepaid to the telegraph company, addressed to the director at his business office. Notice of a meeting need only state the place, day and hour of the said meeting. A director may waive notice of any meeting in a writing signed either before or after the time stated. The attendance of a director at a meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting was not lawfully called or convened. 3.5 Quorum. A majority of the directors then in office shall constitute a quorum for the transaction of business at any meeting of the Board of Directors, but if less than such quorum is present at a meeting, a majority of the directors present may adjourn the meeting from time to time without further notice. Directors shall be deemed present at a meeting of the Board of Directors if by means of conference telephone or similar communications equipment all persons participating in the meeting can hear each other. The act of the majority of the directors voting at a meeting at which a quorum is present shall be the act of the Board of Directors. 3.6 Unanimous Consent. Any action which may be taken at the meeting of the directors, or by action of the members of the Executive Committee or by the members of any other committee appointed by the Board, may be taken without a meeting, if a consent or consents in writing setting forth the action so taken shall be signed by all of the directors or the members of the committee, as the case may be, and filed with the Secretary of the Corporation. 3.7 Compensation. Directors as such need not receive any compensation for their services. By resolution of the Board, a stated salary may be fixed for the directors, or a fixed sum for, and expenses of, attendance may be allowed for attendance at each regular or special meeting of the Board. Nothing herein contained shall be construed to preclude any director from serving the Corporation as a member of a committee or an officer or in any other capacity and receiving compensation therefor. -4- 3.8 Committees of the Board. The Board may, by resolution adopted by a majority of the whole Board, delegate two or more of its number to constitute an Executive Committee, which, unless otherwise provided in such resolution, shall have and exercise the authority of the Board of Directors in the management of the business and affairs of the Corporation. The Board may by resolution adopted by a majority of the whole Board delegate two or more of its members to act as a committee to exercise all power and authority which the Board might exercise in matters as to which the Committee is authorized to act. The presence in person or as hereafter provided of one-half (1/2) of the members of the Executive Committee or any other committee shall constitute a quorum for the transaction of business at any meeting of such committee, and the act of a majority of those members of such committee voting at a meeting at which a quorum is present shall be the act of the committee. Members of the Executive Committee or any other committee shall be deemed as being present at a meeting of such committee if by means of conference telephone or similar communications equipment all persons participating in the meeting can hear each other. In the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent to disqualified member. 3.9 Removal of Directors. Any individual director may be removed from office without assigning any cause by the vote of shareholders entitled to cast at least a majority of the votes which all shareholders would be entitled to cast at any annual election of directors, but such removal shall not occur if the votes of a sufficient number of shares are cast against the resolution for his removal which, if cumulatively voted at an annual meeting of shareholders, would be sufficient to elect one or more directors. The entire Board of Directors may be removed from office without assigning any cause by the vote of shareholders entitled to cast at least a majority of the votes shareholders would be entitled to cast at any annual election of directors. The Board of Directors may declare vacant the office of a director if he be declared of unsound mind by an order of court, or convicted of a felony or other crime, or for any other proper cause. 3.10 Vacancies. Vacancies in the Board of Directors, including vacancies resulting from an increase in the number of directors, shall be filled by a majority vote of the remaining members of the Board though less than a quorum. A director elected to fill a vacancy shall be a director until a successor is elected by the shareholders, who may make such election at the next annual meeting of the shareholders or any special meeting duly called for that purpose and held prior thereto. ARTICLE IV. Officers. 4.1 Executive Officers. The executive officers of the Corporation shall be chosen by the directors and shall be a Chief Executive Officer, a Chief Operating Officer, a President, a Vice President, a Secretary, and a Treasurer. The Board of Directors may also choose one or more Vice Presidents and one or more Assistant Secretaries and such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall have such authority and shall perform such duties as from time to time shall be prescribed by the Board. 4.2 Qualifications. Any number of offices may be held by the same person unless the Articles of Incorporation or these By-Laws otherwise provide. 4.3 Salaries. The salaries of all officers and agents of the Corporation shall be fixed by the Board of Directors. 4.4 Term of Office; Removal. The officers of the Corporation shall hold office for one year and until their successors are chosen and qualified. Any officer elected or appointed by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors, without assigning any cause therefor. 4.5 Duties of the Officers. Officers of the Corporation shall have such duties and responsibilities as are established from time to time by the Board of Directors of the Corporation. -5- 4.6 Vacancies. If the office of any officer or agent, one or more, becomes vacant for any reason, the Board of Directors may choose a successor or successors, who shall hold office at the pleasure of the Board. ARTICLE V. Indemnifications of Directors and Officers. 5.1 Directors Officers and Agents - Official Capacity. The Corporation shall indemnify and hold harmless to the fullest extent permitted under the Pennsylvania Business Corporation Law, the Directors' Liability Act (the "DLA") and other applicable law, as such laws existed on the date this Article V was adopted by the Board of Directors or, except as provided in Article 5.6 hereof, as such laws may thereafter be amended ("Pennsylvania Law"), any person who was or is a party or was or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, including, without limitation, an action by or in the right of the Corporation (collectively, for purposes of this Article V, "Proceeding"), by reason of the fact that he is or was or has agreed to become a director or officer of the Corporation, or is or was serving or has agreed to serve at the request of the corporation as a director or officer of another corporation, or if a director or officer of the Corporation, is or was serving or has agreed to serve at the request of the corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, and may indemnify and hold harmless to the fullest extent permitted under Pennsylvania law any person who was or is a party or was or is threatened to be made a party to such a Proceeding by reason of the fact that he is or was or has agreed to become an employee or agent of the Corporation, or, if an employee or agent of the Corporation, is or was serving or has agreed to serve at the request of the Corporation as an employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses, liability and loss (including, without limitation, attorneys' fees and disbursements, punitive and other damages, judgments, fines, penalties, excise taxes assessed with respect to an employee benefit plan, amounts paid or to be paid in settlement and costs and expenses of any nature) incurred by him in connection with such Proceeding and any appeal therefrom; provided, that such indemnification shall not be made in any case where the act or failure to act giving rise to the claim for indemnification shall not be made in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court in a final, binding adjudication to have constituted willful misconduct or recklessness. 5.2 Directors Officers and Agents - Non-Official Capacity. The Corporation may indemnify and hold harmless to the fullest extent permitted under Pennsylvania law any person who was or is a party or was or is threatened to be made a party to any Proceeding, by reason of any of his actions in a non-official capacity while serving as a director, officer, employee or agent of the Corporation, against expenses, liability and loss (including, without limitation, attorneys' fees and disbursements, punitive and other damages, judgments, fines, penalties, excise taxes assessed with respect to an employee benefit plan, amounts paid or to be paid in settlement and costs and expenses of any nature) incurred by him in connection with such Proceeding and any appeal therefrom; provided, that such indemnification shall not be made in any case where the act or failure to act giving rise to the claim for indemnification is determined by a court in a final, binding adjudication to have constituted willful misconduct or recklessness. 5.3 Termination of Proceeding. The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of guilty or nolo contendere, or its equivalent, shall not, of itself, create a presumption that the person's conduct constituted willful misconduct or recklessness. 5.4 Expenses. Expenses incurred by a director or officer in defending a Proceeding shall be paid by the Corporation in advance of the final disposition of the Proceeding, provided that, if Pennsylvania law requires, the payment of such expenses shall be made only upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as mandated in this Article V or otherwise. Expenses incurred by other employees and agents may be so paid to the extent provided by the Board of Directors, upon receipt of the foregoing undertaking by or on behalf of the employee or agent. -6- 5.5 Non-Exclusivity. The indemnification provided by this Article V shall be in addition to and not exclusive of any other rights to which those seeking indemnification may be entitled under Pennsylvania law, or under any by-law, agreement executed by the Corporation, insurance policy, fund of any nature established by the Corporation, vote of shareholders or disinterested directors or otherwise. The indemnification so provided by this Article V or otherwise, may be granted whether or not the Corporation would have the power to indemnify such person under any provision of Pennsylvania law other than the DLA. 5.6 Contract. The indemnification provisions of this Article V shall constitute a contract between the Corporation and each of its directors, officers, employees and agents who is or may be entitled to indemnification hereunder and who serves in any such capacity at any time while such provisions are in effect. Any repeal or modification of the indemnification provisions of this Article V shall not limit any such person's rights to indemnification (including the advancement of expenses) then existing or arising out of events, acts or omissions occurring prior to such repeal or modification, including, without limitation, the right to indemnification with respect to proceedings commenced after such repeal or modification based in whole or in part upon any such event, act or omission. 5.7 Funding of Indemnification. (a) The Corporation may create a fund of any nature, which may, but need not be, under the control of a trustee, or otherwise may secure or insure in any manner its indemnification obligations, whether arising under or pursuant to this Article V or otherwise. (b) The Corporation may purchase and maintain insurance to insure its indemnification obligations on behalf of any person who is or was or has agreed to become a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against any expense, liability or loss asserted against him and incurred by him or on his behalf in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify him against such liability under the provisions of this Article V or under any provision of Pennsylvania Law other than the DLA. 5.8 Duration. The indemnification provided by this Article V shall continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person. 5.9 Conditions. The Corporation may impose reasonable restrictions upon any persons seeking indemnification (including advanced expenses) under this Article including, but not limited to, a condition to the effect that, except to the extent differing interests compel another result, persons to be indemnified under this paragraph may be required to share the same counsel and other services. 5.10 Limitation on Director's Personal Liability. (a) To the fullest extent permitted under the DLA, as it existed on the date this Article V was adopted, or, except as provided in subarticle (e), as such law may thereafter be amended, a director of this Corporation shall not be personally liable for monetary damages as a result of any action or failure to act unless both (1) the director has breached or failed to perform the duties of his office under Section 8363 of the DLA, and (2) the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness. -7- (b) The provisions of this Article 5.10 shall not apply to (1) the responsibility or liability of a director pursuant to any criminal statute, or (2) the liability of a director for the payment of taxes pursuant to local, state or federal law. (c) The termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of guilty or nolo contendre, or its equivalent, shall not, of itself, create a presumption that the director breached or failed to perform the duties of his office under Section 8363 of the DLA and that the breach or failure to perform constituted self-dealing, willful misconduct or recklessness. (d) Notwithstanding the date of adoption of this Article 5.10, the provisions of Article 5.10 shall apply to any actions filed or breaches of performance of duty or any failure of performance of duty by any director. (e) No amendment to or repeal of this Article V or the relevant provisions of the DLA shall reduce the limitation on directors' personal liability for or with respect to any events, acts or omissions of such director occurring prior to such amendment or repeal, including, without limitation, the limitation on personal liability with respect to any Proceedings commenced after such repeal or modification based in whole or in part upon any such event, act or omission. 5.11 Scope. If any provision of this Article V or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each director or officer, and may indemnify each employee or agent of the Corporation, as to expenses, liability and loss (including, without limitation, attorneys' fees and disbursements, punitive and other damages, judgments, fines penalties, excise taxes assessed with respect to an employee benefit plan, amounts paid or to be paid in settlement and costs and expenses of any nature) incurred by him in connection with any Proceeding, including an action by or in the right of the Corporation, to the fullest extent permitted by any applicable portion of this Article V that shall not have been invalidated and to the fullest extent permitted by applicable law. ARTICLE VI. Corporate Records and Statement. 6.1 Records. There shall be kept at the principal office of the Corporation an original or duplicate record of the proceedings of the shareholders and of the directors, and the original or copy of its By-Laws, including all amendments or alterations thereto to date. An original or duplicate share register shall also be kept at the principal office and at the office of its transfer agent or registrar, giving the names of the shareholders, their respective addresses, and the number and classes of shares held by each. The Corporation shall also keep appropriate, complete and accurate books or records of account, which may be kept at its registered office, or at its principal place of business. 6.2 Annual Statement. The President and Board of Directors shall present at each annual meeting of shareholders such statement of the business and affairs of the Corporation for the preceding year as they shall deem appropriate. No financial or other statement of the Corporation need be sent to shareholders unless the Board of Directors shall so determine. Such statements shall be prepared and presented in whatever manner the Board of Directors shall deem advisable and need not be verified by a certified public accountant. ARTICLE VII. Share Certificates Transfer of Stock. Etc. 7.1 Issuance. The Board of Directors shall have the power, by resolution duly adopted, to issue from time to time, in whole or in part, the kinds or classes of shares authorized in the Articles of Incorporation. Share certificates shall bear the signature of the Chief Executive Officer, Chief Operating Officer, President or Vice President and Secretary or Assistant Secretary and the corporate seal, which may be a facsimile, engraved or printed. Where such certificate is signed by a transfer agent or a registrar, the signatures of the Chief Executive Officer, Chief Operating Officer, President or Vice President and Secretary or Assistant Secretary upon such certificate may be facsimiles, engraved or printed. -8- 7.2 Transfers of Shares. Transfers of shares shall be made on the books of the Corporation upon surrender of the certificates therefor, endorsed by the person named in the certificate or by attorney, lawfully constituted in writing. No transfer shall be made inconsistent with the provisions of the Uniform Commercial Code or other applicable federal, state or local law. No transfer or assignment shall affect the right of the Corporation to pay any dividend due upon the stock, or to treat the registered holder as the holder in fact, until such transfer assignment is registered on the books of the Corporation. 7.3 Absolute Owner. The Corporation shall be entitled to treat the registered holder of any shares as the prima facie owner thereof. If objection is made by the actual shareholder at the time the ballot is tendered, which objection is accompanied by a written statement under oath that the person in whose name such stock is registered is not the true owner thereof, it shall be the duty of the judges of the election to inquire and determine summarily whether the facts are as represented in such statement, and if so the vote tendered shall be rejected. 7.4 Lost Destroyed or Mutilated Certificates. In the event that a share certificate shall be lost, destroyed or mutilated, a new certificate may be issued therefor upon such terms and indemnity to the Corporation as the Board of Directors may prescribe. ARTICLE VIII. Miscellaneous Provisions. 8.1 Signatures on Checks. All checks or demands for money and notes of the Corporation shall be signed by such officer or officers as the Board of Directors may from time to time designate. 8.2 Securities of Other Corporations. The President, or the Secretary, shall have full power to vote, appoint proxies or otherwise perform any act as a shareholder with respect to any shares or other securities of any corporation owned by this Corporation, including the power to sell, convert, exchange, pledge or encumber such securities. 8.3 Fiscal Year. The fiscal year of the corporation shall end on October 31. ARTICLE IX. Amendments. 9.1 These By-Laws may be altered, amended or repealed by a majority of the holders of all Common Shares entitled to vote (plus the holders of such other shares as may then be entitled to vote with the holders of Common Shares) present in person or by proxy at any regular or special meeting duly convened. These By-Laws may also be altered, amended or repealed by a majority vote of the members of the Board of Directors, subject always to the power of the shareholders to change such action. -9- EX-4 93 ex4-4.txt EXHIBIT 4.4 Exhibit 4.4 FIRST SUPPLEMENTAL INDENTURE, dated as of May 1, 2003, by and among the parties listed on Schedule A hereto (each an "Additional Guarantor" and collectively, the "Additional Guarantors") and BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, as trustee (the "Trustee"). RECITALS WHEREAS, in connection with the issuance of $300,000,000 aggregate principal amount of 6.875% Senior Notes due 2012 (the "Senior Notes") by Toll Brothers Finance Corp. (the "Issuer") and the issuance of related guarantees by Toll Brothers, Inc. (the "Company") and the other Guarantors, the Issuer, the Company and the Guarantors executed and delivered an Indenture dated as of November 22, 2002, as supplemented and/or amended as the case may be (the "Original Indenture"), to the Trustee; WHEREAS, Section 4.04 of the Original Indenture provides that if in accordance with the provisions of the Bank Credit Facilities the Company adds or causes to be added, any Subsidiary that was not a Guarantor at the time of execution of the Original Indenture as a guarantor under the Bank Credit Facilities, such Subsidiary shall contemporaneously become a Guarantor under the Original Indenture; WHEREAS, desiring to become a Guarantor under the Original Indenture, each of the Additional Guarantors (other than the Transferee Guarantors and the Surviving Guarantors (as such terms are defined below)) is executing and delivering this First Supplemental Indenture; WHEREAS, in connection with (i) the transfers of all of the assets, if any, of certain Guarantors (each a "Transferor Guarantor") to certain other Guarantors (each a "Transferee Guarantor" and collectively, the "Transferee Guarantors") and (ii) the mergers of certain Guarantors (each a "Merged Guarantor") with and into certain other Guarantors (each a "Surviving Guarantor" and collectively, the "Surviving Guarantors"), each of the Transferee Guarantors and the Surviving Guarantors is executing and delivering this First Supplemental Indenture to affirm its obligations under the Indenture pursuant to Section 5.01 thereof; WHEREAS, the consent of Holders to the execution and delivery of this First Supplemental Indenture is not required, and all other actions required to be taken under the Original Indenture with respect to this First Supplemental Indenture have been taken. NOW, THEREFORE IT IS AGREED: Section 1. Definitions. Capitalized terms used in this First Supplemental Indenture and not otherwise defined shall have the meanings ascribed to them in the Original Indenture. Section 2. Joinder. Each Additional Guarantor agrees that by its entering into this First Supplemental Indenture (a) it hereby unconditionally guarantees all of the Issuer's obligations under (i) the Senior Notes, (ii) any other Securities of any Series that has the benefit of Guarantees of other Subsidiaries of the Company and (iii) the Original Indenture (as it relates to all such Series) on the terms set forth in the Original Indenture, as if each such Additional Guarantor was a party to the Original Indenture and (b) to the extent each Additional Guarantor is either a Transferee Guarantor or a Surviving Guarantor, such Additional Guarantor hereby ratifies, approves and confirms in all respects its obligations under the Original Indenture both in its own capacity and as successor to its respective Transferor Guarantor or Merged Guarantor, as the case may be. Section 3. Ratification of Original Indenture. This First Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Original Indenture, and as supplemented and modified hereby, the Original Indenture is in all respects ratified and confirmed, and the Original Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument. Section 4. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof. Section 5. Successors and Assigns. All covenants and agreements in this First Supplemental Indenture by each Additional Guarantor shall bind each such Additional Guarantor's successors and assigns, whether so expressed or not. Section 6. Separability Clause. In case any one or more of the provisions contained in this First Supplemental Indenture shall for any reason be held to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 7. Governing Law. This First Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York. This First Supplemental Indenture is subject to the provisions of the TIA, that are required to be part of this First Supplemental Indenture and shall, to the extent applicable, be governed by such provisions. Section 8. Counterparts. This First Supplemental Indenture may be executed in any number of counterparts, and each of such counterparts shall for all purposes be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Section 9. Role of Trustee. The recitals contained herein shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this First Supplemental Indenture. -2- IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the date first above written. THE ADDITIONAL GUARANTORS NAMED ON SCHEDULE A HERETO, as Guarantors By: Joseph R. Sicree ---------------------------- Name: Joseph R. Sicree Title: Designated Officer -3- BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee By: Jeffrey L. Eubank ----------------------- Name: Jeffery L. Eubank Title: Authorized Officer -4- SCHEDULE A ---------- 1. Toll NJ X-I Corp., a Delaware corporation 2. Toll NJ X-II Corp., a Delaware corporation 3. Toll RI II, L.P., a Rhode Island limited partnership 4. Toll SC II, L.P., a South Carolina limited partnership 5. Village Partners, L.P., a Pennsylvania limited partnership 6. Nosan & Silverman Homes LLC, a Michigan limited liability company 7. Toll DE X, LLC, a Delaware limited liability company 8. TB Proprietary, L.P., a Delaware limited partnership 9. First Brandywine Investment Corp. II, a Delaware corporation 10. Silverman Development Company, Inc., a Michigan corporation 11. Toll NJ, L.P., a New Jersey limited partnership 12. Toll Brothers Realty Michigan II LLC, a Michigan limited liability company 13. Toll IL, L.P., an Illinois limited partnership EX-5 94 ex5_1.txt EXHIBIT 5.1 EXHIBIT 5.1 June ___, 2003 Toll Brothers, Inc. Toll Brothers Finance Corp. 3103 Philmont Avenue Huntingdon Valley, PA 19006 Re: Registration Statement on Form S-4 ---------------------------------- Ladies and Gentlemen: In connection with the registration by Toll Brothers Finance Corp., a Delaware corporation (the "Company"), of $300,000,000 in aggregate principal amount of 6.875% Senior Notes due 2012 (the "Exchange Notes") and the registration by Toll Brothers, Inc., a Delaware corporation (the "Guarantor"), of a guarantee with respect to the Exchange Notes (the "Exchange Guarantee") on a Form S-4 registration statement (the "Registration Statement") to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "1933 Act"), you have requested our opinion with respect to the matters set forth below. The Exchange Notes and the Exchange Guarantee will be issued pursuant to an indenture, dated as of November 22, 2002, as amended, by and among the Company, the Guarantor, the other guarantors that are parties thereto and Bank One Trust Company, N.A., as trustee (as supplemented or amended, as the case may be, by the Authorizing Resolutions attached as Exhibit A to the Joint Action of Persons Authorized to Act on Behalf of Each of Toll Brothers Finance Corp., Toll Brothers, Inc. and Each of the Entities Listed on Schedule I thereto dated as of November 22, 2002, the "Indenture"). Capitalized terms used herein without definition have the meanings given to them in the Indenture, a copy of which will be filed as an exhibit to the Registration Statement. In our capacity as your counsel in connection with the preparation and filing of the Registration Statement, we are familiar with the proceedings taken and proposed to be taken by the Company and the Guarantor in connection with the authorization and issuance of the Exchange Notes and the Exchange Guarantee, and for purposes of this opinion, we have assumed such proceedings will be timely completed in the manner presently proposed and the terms of such issuance will otherwise be in compliance with law. As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of rendering the opinions expressed herein. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, and the conformity to authentic original documents of all documents submitted to us as copies. Toll Brothers, Inc. Toll Brothers Finance Corp. June __, 2003 Page 2 To the extent that our opinion addresses matters of law, our opinion is limited to the federal laws of the United States, the laws of the Commonwealth of Pennsylvania, the laws of the State of New York and the General Corporation Law of the State of Delaware. Subject to the foregoing and the other matters set forth herein, it is our opinion that, as of the date hereof: 1. The Exchange Notes, when authenticated by the Trustee and executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture, will constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). 2. The Exchange Guarantee, when (i) the Exchange Notes have been authenticated by the Trustee and executed and delivered by the Company in accordance with the terms of the Registration Rights Agreement and the Indenture upon the exchange and (ii) the Exchange Guarantee has been authenticated by the Trustee and executed and delivered by the Guarantor in accordance with the terms of the Registration Rights Agreement and the Indenture, will constitute a legally valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). We consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm contained under the heading "Legal Matters" in the prospectus included therein. In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the 1933 Act or the rules and regulations thereunder. Very truly yours, EX-5 95 ex5-2.txt EXHIBIT 5.2 EXHIBIT 5.2 June ___, 2003 Toll Brothers, Inc. Toll Brothers Finance Corp. 3103 Philmont Avenue Huntingdon Valley, PA 19006 Re: Registration Statement on Form S-4 ---------------------------------- Ladies and Gentlemen: I am General Counsel to Toll Brothers, Inc., a Delaware corporation (the "Company"). In connection with the registration by Toll Brothers Finance Corp., a Delaware corporation (the "Issuer"), of $300,000,000 in aggregate principal amount of 6.875% Senior Notes due 2012 (the "Exchange Notes") and the registration by the subsidiaries of the Company listed on Schedule I hereto (the "Guarantors"), of guarantees with respect to the Exchange Notes (the "Exchange Guarantees") on a Form S-4 registration statement (the "Registration Statement") to be filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the "1933 Act"), you have requested my opinion with respect to the matters set forth below. The Exchange Notes and the Exchange Guarantees will be issued pursuant to an indenture, dated as of November 22, 2002, as amended, by and among the Company, the Issuer, the Guarantors and Bank One Trust Company, N.A., as trustee (as supplemented or amended, as the case may be, by the Authorizing Resolutions attached as Exhibit A to the Joint Action of Persons Authorized to Act on Behalf of Each of Toll Brothers Finance Corp., Toll Brothers, Inc. and Each of the Entities Listed on Schedule I thereto dated as of November 22, 2002, the "Indenture"). Capitalized terms used herein without definition have the meanings given to them in the Indenture, a copy of which will be filed as an exhibit to the Registration Statement. In my capacity as General Counsel in connection with the preparation and filing of the Registration Statement, I am familiar with the proceedings taken and proposed to be taken by the Company, the Issuer and the Guarantors in connection with the authorization and issuance of the Exchange Notes and the Exchange Guarantees, and for purposes of this opinion, I have assumed such proceedings will be timely completed in the manner presently proposed and the terms of such issuance will otherwise be in compliance with law. As such counsel, I have examined such matters of fact and questions of law as I have considered appropriate for purposes of rendering the opinions expressed herein. In my examination, I have assumed the genuineness of all signatures, the authenticity of all documents submitted to me as originals, and the conformity to authentic original documents of all documents submitted to me as copies. Toll Brothers, Inc. Toll Brothers Finance Corp. June ___, 2003 Page 2 To the extent that my opinion addresses matters of law, my opinion is limited to the federal laws of the United States, the laws of the Commonwealth of Pennsylvania and the General Corporation Law of the State of Delaware. Subject to the foregoing and the other matters set forth herein, it is my opinion that, as of the date hereof, the Exchange Guarantees, when (i) the Exchange Notes have been authenticated by the Trustee and executed and delivered by the Issuer in accordance with the terms of the Registration Rights Agreement and the Indenture upon the exchange and (ii) the Exchange Guarantees have been authenticated by the Trustee and executed and delivered by the Guarantors in accordance with the terms of the Registration Rights Agreement and the Indenture, will constitute legally valid and binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency (including, without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting the enforcement of creditors' rights generally and except as enforcement thereof is subject to general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or at law). I consent to your filing this opinion as an exhibit to the Registration Statement and the use of my name under the heading "Legal Matters" in the prospectus included therein. In giving this consent, I do not hereby admit that I come within the category of persons whose consent is required under Section 7 of the 1933 Act or the rules and regulations thereunder. Very truly yours, SCHEDULE I
State or Other Jurisdiction of Incorporation or of Name of Guarantor Organization - -------------------------------------- -------------------- Toll Holdings, Inc. Delaware Amwell Chase, Inc. Delaware BBCC Investments, Inc. Pennsylvania Brentwood Investments I, Inc Tennessee Bunker Hill Estates, Inc. Delaware Chesterbrooke, Inc. Delaware Connecticut Land Corp. Delaware Daylesford Development Corp. Delaware Eastern States Engineering, Inc. Delaware Edmunds-Toll Construction Company Arizona Fairway Valley, Inc. Delaware First Brandywine Finance Corp. Delaware First Brandywine Investment Corp. II Delaware First Brandywine Investment Corp. III Delaware First Huntingdon Finance Corp. Delaware Franklin Farms G.P., Inc. Delaware Frenchman's Reserve Country Club, Inc. Florida HQZ Acquisitions, Inc. Michigan MA Limited Land Corporation Delaware Maple Point, Inc. Delaware Maryland Limited Land Corporation Delaware Mizner County Club, Inc. Florida Polekoff Farm, Inc. Pennsylvania Silverman Development Company, Inc. Michigan SH Homes Corporation Michigan SI Investment Corporation Michigan Springfield Chase, Inc. Delaware Stewarts Crossing, Inc. Delaware Tampa Realty Associates, Inc. Florida TB Proprietary Corp. Delaware TB Proprietary LP, Inc. Delaware Tenby Hunt, Inc. Delaware The Silverman Building Companies, Inc. Michigan
State or Other Jurisdiction of Incorporation or of Exact name of Guarantor Organization - -------------------------------------- -------------------- Toll AZ GP Corp. Delaware Toll Bros., Inc. Pennsylvania Toll Bros., Inc. Delaware Toll Bros., Inc. Texas Toll Bros. of Arizona, Inc. Arizona Toll Bros. of North Carolina, Inc. North Carolina Toll Bros. of North Carolina II, Inc. North Carolina Toll Bros. of North Carolina III, Inc. North Carolina Toll Bros. of Tennessee, Inc. Delaware Toll Brothers Real Estate, Inc. Pennsylvania Toll CA GP Corp. California Toll CO GP Corp. Colorado Toll Corp. Delaware Toll Finance Corp. Delaware Toll FL GP Corp. Florida Toll IL GP Corp. Illinois Toll Land Corp. No. 6 Pennsylvania Toll Land Corp. No. 10 Delaware Toll Land Corp. No. 20 Delaware Toll Land Corp. No. 43 Delaware Toll Land Corp. No. 45 Delaware Toll Land Corp. No. 46 Delaware Toll Land Corp. No. 47 Delaware Toll Land Corp. No. 48 Delaware Toll Land Corp. No. 49 Delaware Toll Land Corp. No. 50 Delaware Toll Land Corp. No. 51 Delaware Toll Land Corp. No. 52 Delaware Toll Land Corp. No. 53 Delaware Toll Land Corp. No. 55 Delaware Toll Land Corp. No. 56 Delaware Toll Land Corp. No. 58 Delaware Toll Land Corp. No. 59 Delaware Toll Land Corp. No. 60 Delaware Toll Management AZ Corp. Delaware Toll Management VA Corp. Delaware Toll MI GP Corp. Michigan Toll NH GP Corp. New Hampshire Toll NJX-I Corp. Delaware
State or Other Jurisdiction of Incorporation or of Exact name of Guarantor Organization - -------------------------------------- -------------------- Toll NJX-II Corp. Delaware Toll NV GP Corp. Nevada Toll NC GP Corp. North Carolina Toll OH GP Corp. Ohio Toll PA GP Corp. Pennsylvania Toll PA II GP Corp. Pennsylvania Toll Peppertree, Inc. New York Toll Philmont Corporation Delaware Toll Realty Holdings Corp. I Delaware Toll Realty Holdings Corp. II Delaware Toll Realty Holdings Corp. III Delaware Toll RI GP Corp. Rhode Island Toll SC GP Corp. South Carolina Toll TN GP Corp. Tennessee Toll TX GP Corp. Delaware Toll VA GP Corp. Delaware Toll VA Member Two, Inc. Delaware Toll Wood Corporation Delaware Toll YL, Inc. California Valley Forge Conservation Holding GP Corp. Pennsylvania Warren Chase, Inc. Delaware Windsor Development Corp. Pennsylvania Afton Chase, L.P. Pennsylvania Audubon Ridge, L.P. Pennsylvania BBCC Golf, L.P. Pennsylvania BBCC Investments, L.P. Pennsylvania Beaumont Chase, L.P. Pennsylvania Belmont Land, L.P. Virginia Bennington Hunt, L.P. New Jersey Bernards Chase, L.P. New Jersey Binks Estates Limited Partnership Florida The Bird Estate Limited Partnership Massachusetts Blue Bell Country Club, L.P. Pennsylvania Branchburg Ridge, L.P. New Jersey Brandywine River Estates, L.P. Pennsylvania Brass Castle Estates, L.P. New Jersey Brentwood Investments, L.P. Tennessee Bridle Estates, L.P. Pennsylvania Broad Run Associates, L.P. Pennsylvania
State or Other Jurisdiction of Incorporation or of Exact name of Guarantor Organization - -------------------------------------- -------------------- Buckingham Woods, L.P. Pennsylvania Bucks County Country Club, L.P. Pennsylvania CC Estates Limited Partnership Massachusetts Calabasas View, L.P. California Charlestown Hills, L.P. New Jersey Cheltenham Estates Limited Partnership Michigan Chesterbrooke Limited Partnership New Jersey Chesterfield Hunt, L.P. New Jersey Cobblestones at Thornbury, L.P. Pennsylvania Cold Spring Hunt, L.P. Pennsylvania Coleman-Toll Limited Partnership Nevada Concord Chase, L.P. Pennsylvania Cortlandt Chase, L.P. New York Delray Limited Partnership Florida Dolington Estates, L.P. Pennsylvania Dominion Country Club, L.P. Virginia Eagle Farm Limited Partnership Massachusetts Edmunds-Toll Limited Partnership Arizona Eldorado Country Estates, L.P. Texas Estates at Autumnwood, L.P. Delaware The Estates at Brooke Manor Limited Partnership Maryland Estates at Coronado Pointe, L.P. California The Estates at Potomac Glen Limited Partnership Maryland Estates at Princeton Junction, L.P. New Jersey Estates at Rivers Edge, L.P. New Jersey Estates at San Juan Capistrano, L.P. California The Estates at Summit Chase, L.P. California Fairfax Investment, L.P. Virginia Fairfax Station Hunt, L.P. Virginia Fair Lakes Chase, L.P. Virginia Fairway Mews Limited Partnership New Jersey Farmwell Hunt, L.P. Virginia First Brandywine Partners, L.P. Delaware Franklin Oaks Limited Partnership Massachusetts Freehold Chase, L.P. New Jersey Great Falls Hunt, L.P. Virginia Great Falls Woods, L.P. Virginia Greens at Waynesborough, L.P. Pennsylvania
State or Other Jurisdiction of Incorporation or of Exact name of Guarantor Organization - -------------------------------------- -------------------- Greenwich Chase, L.P. New Jersey Greenwich Station, L.P. New Jersey Hockessin Chase, L.P. Delaware Holland Ridge, L.P. New Jersey Holliston Hunt Limited Partnership Massachusetts Hopewell Hunt, L.P. New Jersey Huckins Farm Limited Partnership Massachusetts Hunter Mill, L.P. Virginia Hunterdon Chase, L.P. New Jersey Hunterdon Ridge, L.P. New Jersey Huntington Estates Limited Partnership Connecticut Hurley Ridge Limited Partnership Maryland Independence Hill, L.P. New Jersey Kensington Woods Limited Partnership Massachusetts Knolls of Birmingham, L.P. Pennsylvania Lakeridge, L.P. Pennsylvania Lakeway Hills Properties, L.P. Texas Laurel Creek, L.P. New Jersey Loudoun Valley Associates, L.P. Virginia Mallard Lakes, L.P. Texas Manalapan Hunt, L.P. New Jersey Maple Creek Limited Partnership Michigan Marshallton Chase, L.P. Pennsylvania Mill Road Estates, L.P. Pennsylvania Montgomery Chase, L.P. New Jersey Montgomery Oaks, L.P. New Jersey Moorestown Hunt, L.P. New Jersey Mount Kisco Chase, L.P. New York NC Country Club Estates Limited Partnership North Carolina Newport Ridge Limited Partnership Michigan Newtown Chase Limited Partnership Connecticut Northampton Crest, L.P. Pennsylvania Northampton Preserve, L.P. Pennsylvania Patriots, L.P. New Jersey The Preserve Limited Partnership North Carolina The Preserve at Annapolis Limited Partnership Maryland The Preserve at Boca Raton Limited Partnership Florida Preston Village Limited Partnership North Carolina Princeton Hunt, L.P. New Jersey
State or Other Jurisdiction of Incorporation or of Exact name of Guarantor Organization - -------------------------------------- -------------------- Providence Limited Partnership North Carolina Providence Hunt, L.P. Pennsylvania Providence Plantation Limited Partnership North Carolina Regency at Dominion Valley, L.P. Virginia River Crossing, L.P. Pennsylvania Rolling Greens, L.P. New Jersey Rose Hollow Crossing Associates Pennsylvania Rose Tree Manor, L.P. Pennsylvania Seaside Estates Limited Partnership Florida Shrewsbury Hunt Limited Partnership Massachusetts Silverman-Toll Limited Partnership Michigan Somers Chase, L.P. New York Somerset Development Limited Partnership North Carolina South Riding, L.P. Virginia South Riding Partners, L.P. Virginia Southlake Woods, L.P. Texas Southport Landing Limited Partnership Connecticut Springton Pointe, L.P. Pennsylvania Stone Mill Estates, L.P. Pennsylvania Stoney Ford Estates, L.P. Pennsylvania Swedesford Chase, L.P. Pennsylvania TBI/Heron Bay Limited Partnership Florida TBI/Naples Limited Partnership Florida TBI/Palm Beach Limited Partnership Florida TB Proprietary, L.P. Delaware Tenby Hunt, L.P. Delaware Thornbury Knoll, L.P. Pennsylvania Timber Ridge Investment Limited Partnership Michigan Toll at Brier Creek Limited Partnership North Carolina Toll at Daventry Park, L.P. Ohio Toll at Payne Ranch, L.P. California Toll at Potomac Woods, L.P. Virginia Toll at Princeton Walk, L.P. New Jersey Toll at Westlake, L.P. New Jersey Toll at Whippoorwill, L.P. New York Toll Bros. of Tennessee, L.P. Tennessee Toll Brothers Maryland II Limited Partnership Maryland Toll CA, L.P. California Toll CA II, L.P. California
State or Other Jurisdiction of Incorporation or of Exact name of Guarantor Organization - -------------------------------------- -------------------- Toll CA III, L.P. California Toll CA IV, L.P. California Toll CA V, L.P. California Toll CA VI, L.P. California Toll CO, L.P. Colorado Toll CT Limited Partnership Connecticut Toll CT II Limited Partnership Connecticut Toll CT Westport Limited Partnership Connecticut Toll-Dublin, L.P. California Toll Estero Limited Partnership Florida Toll FL Limited Partnership Florida Toll Ft. Myers Limited Partnership Florida Toll IL, L.P. Illinois Toll IL II, L.P. Illinois Toll IL III, L.P. Illinois Toll IL HWCC, L.P. Illinois Toll Land Limited Partnership Connecticut Toll Land IV Limited Partnership New Jersey Toll Land V Limited Partnership New York Toll Land VI Limited Partnership New York Toll Land VII Limited Partnership New York Toll Land VIII Limited Partnership New York Toll Land IX Limited Partnership Virginia Toll Land X Limited Partnership Virginia Toll Land XI Limited Partnership New Jersey Toll Land XII Limited Partnership New York Toll Land XIII Limited Partnership New York Toll Land XIV Limited Partnership New York Toll Land XV Limited Partnership Virginia Toll Land XVI Limited Partnership New Jersey Toll Land XVII Limited Partnership Connecticut Toll Land XVIII Limited Partnership Connecticut Toll Land XIX Limited Partnership California Toll Land XX Limited Partnership California Toll Land XXI Limited Partnership Virginia Toll Land XXII Limited Partnership California Toll Land XXIII Limited Partnership California Toll Land XXV Limited Partnership New Jersey Toll Land XXVI Limited Partnership Ohio
State or Other Jurisdiction of Incorporation or of Exact name of Guarantor Organization - -------------------------------------- -------------------- Toll Land XXVII Limited Partnership Delaware Toll MD Limited Partnership Maryland Toll MD II Limited Partnership Maryland Toll MD III Limited Partnership Maryland Toll MD IV Limited Partnership Maryland Toll MI Limited Partnership Michigan Toll MI II Limited Partnership Michigan Toll MI III Limited Partnership Michigan Toll Naples Limited Partnership Florida Toll Naval Associates Pennsylvania Toll NH Limited Partnership New Hampshire Toll NJ, L.P. New Jersey Toll NJ II, L.P. New Jersey Toll NJ III, L.P. New Jersey Toll NJ IV, L.P. New Jersey Toll NJ V, L.P. New Jersey Toll NJ VI, L.P. New Jersey Toll Northville Limited Partnership Michigan Toll Northville Golf Limited Partnership Michigan Toll NV Limited Partnership Nevada Toll PA, L.P. Pennsylvania Toll PA II, L.P. Pennsylvania Toll PA III, L.P. Pennsylvania Toll PA IV, L.P. Pennsylvania Toll PA V, L.P. Pennsylvania Toll PA VI, L.P. Pennsylvania Toll PA VII, L.P. Pennsylvania Toll Peppertree, L.P. New York Toll Reston Associates, L.P. Delaware Toll RI, L.P. Rhode Island Toll RI II, L.P. Rhode Island Toll SC, L.P. South Carolina Toll SC II, L.P. South Carolina Toll TX, L.P. Texas Toll TX II, L.P. Texas Toll VA, L.P. Virginia Toll VA II, L.P. Virginia Toll VA IV, L.P. Virginia Toll VA V, L.P. Virginia
State or Other Jurisdiction of Incorporation or of Exact name of Guarantor Organization - -------------------------------------- -------------------- Toll Venice Limited Partnership Florida Toll YL, L.P. California Toll YL II, L.P. California Trumbull Hunt Limited Partnership Connecticut Uwchlan Woods, L.P. Pennsylvania Valley Forge Conservation Holding, L.P. Pennsylvania Valley Forge Woods, L.P. Pennsylvania Valley View Estates Limited Partnership Massachusetts Village Partners, L.P. Pennsylvania Waldon Preserve Limited Partnership Michigan Warwick Greene, L.P. Pennsylvania Warwick Woods, L.P. Pennsylvania Washington Greene Development, L.P. New Jersey West Amwell Limited Partnership New Jersey Whiteland Woods, L.P. Pennsylvania Wichita Chase, L.P. Texas Willowdale Crossing, L.P. Pennsylvania Wilson Concord, L.P. Tennessee Woodbury Estates, L.P. New Jersey The Woods at Highland Lakes, L.P. Ohio The Woods at Long Valley, L.P. New Jersey The Woods at Muddy Branch Limited Partnership Maryland Wrightstown Hunt, L.P. Pennsylvania Yardley Estates, L.P. Pennsylvania Belmont Country Club I LLC Virginia Belmont Country Club II LLC Virginia Big Branch Overlook L.L.C. Maryland Brier Creek Country Club I LLC North Carolina Brier Creek Country Club II LLC North Carolina C.B.A.Z. Construction Company LLC Arizona C.B.A.Z, Holding Company LLC Delaware Creeks Farm L.L.C. Maryland Dominion Valley Country Club I LLC Virginia Dominion Valley Country Club II LLC Virginia ELB Investments I LLC Illinois ELB Investments II LLC Illinois FC Investments I LLC Massachusetts FC Investments II LLC Massachusetts Feys Property LLC Maryland
State or Other Jurisdiction of Incorporation or of Exact name of Guarantor Organization - -------------------------------------- -------------------- First Brandywine LLC I Delaware First Brandywine LLC II Delaware Frenchman's Reserve Realty, LLC Florida Golf I Country Club Estates at Moorpark LLC California Golf II Country Club Estates at Moorpark LLC California High Point at Hopewell, LLC New Jersey Hunts Bluff LLC Maryland Long Meadows TBI, LLC Maryland Martin County Improvement Association LLC Florida Mizner Realty, L.L.C. Florida Mountain View Country Club I LLC California Mountain View Country Club II LLC California Naples Lakes Country Club, L.L.C. Florida Naples TBI Realty, LLC Florida Northville Hills Golf Club LLC Michigan Nosan & Silverman Homes LLC Michigan Palm Cove Golf & Yacht Club I LLC Florida Palm Cove Golf & Yacht Club II LLC Florida Palm Cove Marina I LLC Florida Palm Cove Marina II LLC Florida Regency at Denville LLC New Jersey Regency at Dominion Valley LLC Virginia The Regency Golf Club I LLC Virginia The Regency Golf Club II LLC Virginia RiverCrest Sewer Company, LLC Pennsylvania Sapling Ridge, LLC Maryland South Riding Realty LLC Virginia SR Amberlea LLC Virginia Toll Brothers Realty Michigan II LLC Michigan Toll Cedar Hunt LLC Virginia Toll DE X, LLC Delaware Toll-Dublin, LLC California Toll Equipment, L.L.C. Delaware Toll NJ I, L.L.C. New Jersey Toll NJ II, L.L.C. New Jersey Toll Realty L.L.C. Florida Toll Reston Associates, L.L.C. Delaware Toll VA L.L.C Delaware Toll VA III L.L.C. Virginia Virginia Construction Co. I, LLC Virginia Virginia Construction Co. II, LLC Virginia
EX-12 96 ex12.txt EXHIBIT 12 Exhibit 12 Computation of Ratios of earnings to Fixed Charges
Twelve months ended October 31, Six months ended April 30, ------------------------------------------------------------------- -------------------------------- 1998 1999 2000 2001 2002 2002 2003 Earnings: Income before income taxes $132,666 $161,678 $232,766 $339,712 $347,318 $152,810 $155,536 Interest expense 37,522 41,896 46,816 59,038 65,344 30,267 32,596 Rent expense 293 425 639 852 930 468 545 Amortization 1,094 1,538 635 897 1,037 519 1,466 ------------------------------------------------------------------- -------------------------------- $171,575 $205,537 $280,856 $400,499 $414,629 $184,064 $190,143 =================================================================== ================================ Fixed charges: Homebuilding Interest incurred $39,801 $52,914 $60,275 $79,245 $90,331 $45,254 $51,035 Rent expense 293 425 639 852 930 468 545 Amortization 1,094 1,538 635 897 1,037 519 1,466 ------------------------------------------------------------------- -------------------------------- $41,188 $54,877 $61,549 $80,994 $92,298 $46,241 $53,046 =================================================================== ================================ Ratio 4.17 3.75 4.56 4.94 4.49 3.98 3.58
EX-23 97 ex23-3.txt EXHIBIT 23.3 Exhibit 23.3 Consent of Independent Auditors We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-4 Nos. 333-103931, 333-103931-01, 333-103931-02, 333-103931-03 and 333-103931-04) and related Prospectus of Toll Brothers Finance Corp., Toll Brothers, Inc., Toll Corp., Toll Finance Corp., First Huntingdon Finance Corp. and the additional registrants named therein dated June 12, 2003 and to the incorporation by reference therein of our report dated December 12, 2002, with respect to the consolidated financial statements and schedule of Toll Brothers, Inc. included in its Annual Report (Form 10-K) for the year ended October 31, 2002, filed with the Securities and Exchange Commission. Ernst & Young LLP June 10, 2003 Philadelphia, Pennsylvania EX-25 98 ex25.txt EXHIBIT 25 EXHIBIT 25 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 -------- STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) ---------------------------- Bank One Trust Company, National Association (Exact name of trustee as specified in its charter) A National Banking Association 31-0838515 (I.R.S. employer identification number) 100 East Broad Street, Columbus, Ohio 43271-0181 (Address of principal executive offices) (Zip Code) Bank One Trust Company, N.A. 1 Bank One Plaza Chicago, Illinois 60670 Attn: Sandra L. Caruba, Senior Counsel, (312) 336-9436 (Name, address and telephone number of agent for service) ----------------------------- TOLL BROTHERS FINANCE CORP. (Exact name of obligor as specified in its charter) Delaware 23-3097271 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) TOLL BROTHERS, INC. (Exact name of obligor as specified in its charter) Delaware 23-3097271 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) SEE TABLE OF ADDITIONAL REGISTRANTS 3103 Philmont Avenue Huntington Vallley, Pennsylvania 19006 (Address of principal executive offices) (Zip Code) 6.875% Senior Notes due 2012 Guarantees of 6.875% Senior Notes due 2012 (Title of Indenture Securities) Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Comptroller of Currency, Washington, D.C.; Federal Deposit Insurance Corporation, Washington, D.C.; The Board of Governors of the Federal Reserve System, Washington D.C. (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. Item 2. Affiliations With the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. No such affiliation exists with the trustee. Item 16. List of exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the articles of association of the trustee now in effect.* 2. A copy of the certificate of authority of the trustee to commence business.* 3. A copy of the authorization of the trustee to exercise corporate trust powers.* 4. A copy of the existing by-laws of the trustee.* 5. Not Applicable. 6. The consent of the trustee required by Section 321(b) of the Act. 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. 8. Not Applicable. 9. Not Applicable. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Bank One Trust Company, National Association, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and State of Illinois, on the 13th day of February, 2003. Bank One Trust Company, National Association, Trustee By /s/ Sandra L. Caruba Sandra L. Caruba Senior Counsel * Exhibits 1, 2, 3, and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 16 of the Form T-1 of Bank One Trust Company, National Association, filed as Exhibit 25 to the Registration Statement on Form S-3 of Burlington Northern Santa Fe Corporation, filed with the Securities and Exchange Commission on May 10, 2000 (Registration No. 333-36718). TABLE OF ADDITIONAL REGISTRANTS(1)
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Toll Holdings, Inc. Delaware 23-2569047 Amwell Chase, Inc. Delaware 23-2551304 BBCC Investments, Inc. Pennsylvania 23-3051375 Brentwood Investments I, Inc Tennessee 04-3602308 Bunker Hill Estates, Inc. Delaware 23-2535037 Chesterbrooke, Inc. Delaware 23-2485513 Connecticut Land Corp. Delaware 23-2533514 Daylesford Development Corp. Delaware 23-2511943 Eastern States Engineering, Inc. Delaware 23-2432981 Edmunds-Toll Construction Company Arizona 23-2832024 Fairway Valley, Inc. Delaware 23-2432976 First Brandywine Finance Corp. Delaware 23-2737486 First Brandywine Investment Corp. II Delaware 23-2731790 First Brandywine Investment Corp. III Delaware 23-2820213 First Huntingdon Finance Corp. Delaware 23-2485787 Franklin Farms G.P., Inc. Delaware 23-2486303 Frenchman's Reserve Country Club, Inc. Florida 56-2290261 HQZ Acquisitions, Inc. Michigan 38-3149633 MA Limited Land Corporation Delaware 23-2523560 Maple Point, Inc. Delaware 23-2551803 Maryland Limited Land Corporation Delaware 23-2499816 Mizner County Club, Inc. Florida 23-2970622 Polekoff Farm, Inc. Pennsylvania 23-2417142 Silverman Development Company, Inc. Michigan 38-3180742 SH Homes Corporation Michigan 38-3392296 SI Investment Corporation Michigan 38-3298884 Springfield Chase, Inc. Delaware 23-2538985 Stewarts Crossing, Inc. Delaware 23-2547222 Tampa Realty Associates, Inc. Florida 23-3026885 TB Proprietary Corp. Delaware 23-2485790 TB Proprietary LP, Inc. Delaware 23-3066217 Tenby Hunt, Inc. Delaware 23-2682947 The Silverman Building Companies, Inc. Michigan 38-3075345
- ---------------------- (1) The address, including zip code, and telephone number, including area code, for each of the additional registrants is 3103 Philmont Avenue, Huntingdon Valley, Pennsylvania 19006, (215) 938-8000.
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Toll AZ GP Corp. Delaware 23-2815680 Toll Bros., Inc. Pennsylvania 23-2417123 Toll Bros., Inc. Delaware 23-2600117 Toll Bros., Inc. Texas 23-2896374 Toll Bros. of Arizona, Inc. Arizona 23-2906398 Toll Bros. of North Carolina, Inc. North Carolina 23-2777389 Toll Bros. of North Carolina II, Inc. North Carolina 23-2990315 Toll Bros. of North Carolina III, Inc. North Carolina 23-2993276 Toll Bros. of Tennessee, Inc. Delaware 51-0385724 Toll Brothers Real Estate, Inc. Pennsylvania 23-2417116 Toll CA GP Corp. California 23-2748091 Toll CO GP Corp. Colorado 23-2978190 Toll Corp. Delaware 23-2485860 Toll Finance Corp. Delaware 23-2978196 Toll FL GP Corp. Florida 23-2796288 Toll IL GP Corp. Illinois 23-2967049 Toll Land Corp. No. 6 Pennsylvania 23-2417134 Toll Land Corp. No. 10 Delaware 23-2551776 Toll Land Corp. No. 20 Delaware 23-2551793 Toll Land Corp. No. 43 Delaware 23-2737488 Toll Land Corp. No. 45 Delaware 23-2737050 Toll Land Corp. No. 46 Delaware 23-2731483 Toll Land Corp. No. 47 Delaware 23-2737359 Toll Land Corp. No. 48 Delaware 23-2860557 Toll Land Corp. No. 49 Delaware 23-2860562 Toll Land Corp. No. 50 Delaware 23-2860513 Toll Land Corp. No. 51 Delaware 23-2959185 Toll Land Corp. No. 52 Delaware 23-2966099 Toll Land Corp. No. 53 Delaware 23-2978200 Toll Land Corp. No. 55 Delaware 23-2978124 Toll Land Corp. No. 56 Delaware 23-2978119 Toll Land Corp. No. 58 Delaware 23-3097273 Toll Land Corp. No. 59 Delaware 23-3097278 Toll Land Corp. No. 60 Delaware 23-3097277 Toll Management AZ Corp. Delaware 51-0385727 Toll Management VA Corp. Delaware 51-0385725 Toll MI GP Corp. Michigan 23-2917543 Toll NH GP Corp. New Hampshire 23-3048998 Toll NJX-I Corp. Delaware 51-0413821
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Toll NJX-II Corp. Delaware 51-0413826 Toll NV GP Corp. Nevada 23-2928710 Toll NC GP Corp. North Carolina 23-2760759 Toll OH GP Corp. Ohio 23-2878722 Toll PA GP Corp. Pennsylvania 23-2687561 Toll PA II GP Corp. Pennsylvania 03-0395069 Toll Peppertree, Inc. New York 23-2709097 Toll Philmont Corporation Delaware 23-2526635 Toll Realty Holdings Corp. I Delaware 23-2954512 Toll Realty Holdings Corp. II Delaware 23-2954511 Toll Realty Holdings Corp. III Delaware 23-2954510 Toll RI GP Corp. Rhode Island 23-3020194 Toll SC GP Corp. South Carolina 23-3094328 Toll TN GP Corp. Tennessee 23-2886926 Toll TX GP Corp. Delaware 23-2796291 Toll VA GP Corp. Delaware 23-2551790 Toll VA Member Two, Inc. Delaware 51-0385726 Toll Wood Corporation Delaware 23-2533529 Toll YL, Inc. California 23-2898272 Valley Forge Conservation Holding GP Corp. Pennsylvania 73-1636768 Warren Chase, Inc. Delaware 23-2518740 Windsor Development Corp. Pennsylvania 23-2432983 Afton Chase, L.P. Pennsylvania 23-2760770 Audubon Ridge, L.P. Pennsylvania 23-2668976 BBCC Golf, L.P. Pennsylvania 23-2680898 BBCC Investments, L.P. Pennsylvania 23-3051360 Beaumont Chase, L.P. Pennsylvania 23-2910269 Belmont Land, L.P. Virginia 23-2810333 Bennington Hunt, L.P. New Jersey 23-2690596 Bernards Chase, L.P. New Jersey 23-2796287 Binks Estates Limited Partnership Florida 23-2796300 The Bird Estate Limited Partnership Massachusetts 23-2883360 Blue Bell Country Club, L.P. Pennsylvania 23-2668975 Branchburg Ridge, L.P. New Jersey 23-2918996 Brandywine River Estates, L.P. Pennsylvania 23-2838421 Brass Castle Estates, L.P. New Jersey 23-2921715 Brentwood Investments, L.P. Tennessee 01-0616044 Bridle Estates, L.P. Pennsylvania 23-2855510 Broad Run Associates, L.P. Pennsylvania 23-2979479
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Buckingham Woods, L.P. Pennsylvania 23-2689274 Bucks County Country Club, L.P. Pennsylvania 23-2878689 CC Estates Limited Partnership Massachusetts 23-2748927 Calabasas View, L.P. California 23-2785219 Charlestown Hills, L.P. New Jersey 23-2855658 Cheltenham Estates Limited Partnership Michigan 23-2968590 Chesterbrooke Limited Partnership New Jersey 23-2485378 Chesterfield Hunt, L.P. New Jersey 23-2855657 Cobblestones at Thornbury, L.P. Pennsylvania 23-2774674 Cold Spring Hunt, L.P. Pennsylvania 23-2702468 Coleman-Toll Limited Partnership Nevada 23-2928708 Concord Chase, L.P. Pennsylvania 23-2897949 Cortlandt Chase, L.P. New York 23-2928875 Delray Limited Partnership Florida 23-2929049 Dolington Estates, L.P. Pennsylvania 23-2760781 Dominion Country Club, L.P. Virginia 23-2984309 Eagle Farm Limited Partnership Massachusetts 23-2760777 Edmunds-Toll Limited Partnership Arizona 23-2815685 Eldorado Country Estates, L.P. Texas 23-2796296 Estates at Autumnwood, L.P. Delaware 23-2709134 The Estates at Brooke Manor Limited Partnership Maryland 23-2740412 Estates at Coronado Pointe, L.P. California 23-2796299 The Estates at Potomac Glen Limited Partnership Maryland 23-2785225 Estates at Princeton Junction, L.P. New Jersey 23-2760779 Estates at Rivers Edge, L.P. New Jersey 23-2748080 Estates at San Juan Capistrano, L.P. California 23-2796301 The Estates at Summit Chase, L.P. California 23-2748089 Fairfax Investment, L.P. Virginia 23-2982190 Fairfax Station Hunt, L.P. Virginia 23-2680894 Fair Lakes Chase, L.P. Virginia 23-2955092 Fairway Mews Limited Partnership New Jersey 23-2621939 Farmwell Hunt, L.P. Virginia 23-2822996 First Brandywine Partners, L.P. Delaware 51-0385730 Franklin Oaks Limited Partnership Massachusetts 23-2838925 Freehold Chase, L.P. New Jersey 23-2743988 Great Falls Hunt, L.P. Virginia 23-2719371 Great Falls Woods, L.P. Virginia 23-2963544 Greens at Waynesborough, L.P. Pennsylvania 23-2740013
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Greenwich Chase, L.P. New Jersey 23-2709793 Greenwich Station, L.P. New Jersey 23-2816336 Hockessin Chase, L.P. Delaware 23-2944970 Holland Ridge, L.P. New Jersey 23-2785227 Holliston Hunt Limited Partnership Massachusetts 23-2922701 Hopewell Hunt, L.P. New Jersey 23-2838289 Huckins Farm Limited Partnership Massachusetts 23-2740411 Hunter Mill, L.P. Virginia 23-2711430 Hunterdon Chase, L.P. New Jersey 23-2774673 Hunterdon Ridge, L.P. New Jersey 23-2944965 Huntington Estates Limited Partnership Connecticut 23-2855662 Hurley Ridge Limited Partnership Maryland 23-2954935 Independence Hill, L.P. New Jersey 23-2872609 Kensington Woods Limited Partnership Massachusetts 23-2701194 Knolls of Birmingham, L.P. Pennsylvania 23-2855656 Lakeridge, L.P. Pennsylvania 23-2740012 Lakeway Hills Properties, L.P. Texas 23-2838579 Laurel Creek, L.P. New Jersey 23-2796297 Loudoun Valley Associates, L.P. Virginia 23-3025878 Mallard Lakes, L.P. Texas 23-2796298 Manalapan Hunt, L.P. New Jersey 23-2806323 Maple Creek Limited Partnership Michigan 38-3453419 Marshallton Chase, L.P. Pennsylvania 23-2855525 Mill Road Estates, L.P. Pennsylvania 23-2774670 Montgomery Chase, L.P. New Jersey 23-2745356 Montgomery Oaks, L.P. New Jersey 23-2796292 Moorestown Hunt, L.P. New Jersey 23-2810335 Mount Kisco Chase, L.P. New York 23-2796641 NC Country Club Estates Limited Partnership North Carolina 23-2917299 Newport Ridge Limited Partnership Michigan 38-3413877 Newtown Chase Limited Partnership Connecticut 23-2818660 Northampton Crest, L.P. Pennsylvania 23-2944980 Northampton Preserve, L.P. Pennsylvania 23-2901212 Patriots, L.P. New Jersey 23-2941041 The Preserve Limited Partnership North Carolina 23-2785224 The Preserve at Annapolis Limited Partnership Maryland 23-2838510 The Preserve at Boca Raton Limited Partnership Florida 23-2810339 Preston Village Limited Partnership North Carolina 23-2806570 Princeton Hunt, L.P. New Jersey 23-2747998
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Providence Limited Partnership North Carolina 23-2810338 Providence Hunt, L.P. Pennsylvania 23-2680892 Providence Plantation Limited Partnership North Carolina 23-2855661 Regency at Dominion Valley, L.P. Virginia 45-0497498 River Crossing, L.P. Pennsylvania 23-2855516 Rolling Greens, L.P. New Jersey 23-2855583 Rose Hollow Crossing Associates Pennsylvania 23-2253629 Rose Tree Manor, L.P. Pennsylvania 23-2699972 Seaside Estates Limited Partnership Florida 23-2870057 Shrewsbury Hunt Limited Partnership Massachusetts 23-2912930 Silverman-Toll Limited Partnership Michigan 23-2986323 Somers Chase, L.P. New York 23-2855511 Somerset Development Limited Partnership North Carolina 23-2785223 South Riding, L.P. Virginia 23-2994369 South Riding Partners, L.P. Virginia 23-2861890 Southlake Woods, L.P. Texas 23-2869081 Southport Landing Limited Partnership Connecticut 23-2784609 Springton Pointe, L.P. Pennsylvania 23-2810340 Stone Mill Estates, L.P. Pennsylvania 23-3013974 Stoney Ford Estates, L.P. Pennsylvania 23-2882087 Swedesford Chase, L.P. Pennsylvania 23-2939504 TBI/Heron Bay Limited Partnership Florida 23-2928874 TBI/Naples Limited Partnership Florida 23-2883354 TBI/Palm Beach Limited Partnership Florida 23-2891601 TB Proprietary, L.P. Delaware 23-3070158 Tenby Hunt, L.P. Delaware 23-2682946 Thornbury Knoll, L.P. Pennsylvania 23-2668410 Timber Ridge Investment Limited Partnership Michigan 38-3413876 Toll at Brier Creek Limited Partnership North Carolina 23-2954264 Toll at Daventry Park, L.P. Ohio 23-2897947 Toll at Payne Ranch, L.P. California 23-2833118 Toll at Potomac Woods, L.P. Virginia 23-2660429 Toll at Princeton Walk, L.P. New Jersey 23-2879954 Toll at Westlake, L.P. New Jersey 23-2963549 Toll at Whippoorwill, L.P. New York 23-2888554 Toll Bros. of Tennessee, L.P. Tennessee 51-0386723 Toll Brothers Maryland II Limited Partnership Maryland 23-3027594 Toll CA, L.P. California 23-2963547 Toll CA II, L.P. California 23-2838417
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Toll CA III, L.P. California 23-3031827 Toll CA IV, L.P. California 23-3029688 Toll CA V, L.P. California 23-3091624 Toll CA VI, L.P. California 23-3091657 Toll CO, L.P. Colorado 23-2978294 Toll CT Limited Partnership Connecticut 23-2963551 Toll CT II Limited Partnership Connecticut 23-3041974 Toll CT Westport Limited Partnership Connecticut 23-3048964 Toll-Dublin, L.P. California 23-3070669 Toll Estero Limited Partnership Florida 72-1539292 Toll FL Limited Partnership Florida 23-3007073 Toll Ft. Myers Limited Partnership Florida 82-0559443 Toll IL, L.P. Illinois 23-2963552 Toll IL II, L.P. Illinois 23-3041962 Toll IL III, L.P. Illinois 03-0382404 Toll IL HWCC, L.P. Illinois 75-2985312 Toll Land Limited Partnership Connecticut 23-2709099 Toll Land IV Limited Partnership New Jersey 23-2737490 Toll Land V Limited Partnership New York 23-2796637 Toll Land VI Limited Partnership New York 23-2796640 Toll Land VII Limited Partnership New York 23-2775308 Toll Land VIII Limited Partnership New York 23-2788695 Toll Land IX Limited Partnership Virginia 23-2939502 Toll Land X Limited Partnership Virginia 23-2774670 Toll Land XI Limited Partnership New Jersey 23-2796302 Toll Land XII Limited Partnership New York 23-2796303 Toll Land XIII Limited Partnership New York 23-2796304 Toll Land XIV Limited Partnership New York 23-2796295 Toll Land XV Limited Partnership Virginia 23-2810342 Toll Land XVI Limited Partnership New Jersey 23-2810344 Toll Land XVII Limited Partnership Connecticut 23-2815064 Toll Land XVIII Limited Partnership Connecticut 23-2833240 Toll Land XIX Limited Partnership California 23-2833171 Toll Land XX Limited Partnership California 23-2838991 Toll Land XXI Limited Partnership Virginia 23-2865738 Toll Land XXII Limited Partnership California 23-2879949 Toll Land XXIII Limited Partnership California 23-2879946 Toll Land XXV Limited Partnership New Jersey 23-2867694 Toll Land XXVI Limited Partnership Ohio 23-2880687
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Toll Land XXVII Limited Partnership Delaware 23-2991749 Toll MD Limited Partnership Maryland 23-2963546 Toll MD II Limited Partnership Maryland 23-2978195 Toll MD III Limited Partnership Maryland 23-3044366 Toll MD IV Limited Partnership Maryland 71-0890813 Toll MI Limited Partnership Michigan 23-2999200 Toll MI II Limited Partnership Michigan 23-3015611 Toll MI III Limited Partnership Michigan 23-3097778 Toll Naples Limited Partnership Florida 73-1657686 Toll Naval Associates Pennsylvania 23-2454576 Toll NH Limited Partnership New Hampshire 23-3048999 Toll NJ, L.P. New Jersey 23-2963550 Toll NJ II, L.P. New Jersey 23-2991953 Toll NJ III, L.P. New Jersey 23-2993263 Toll NJ IV, L.P. New Jersey 23-3038827 Toll NJ V, L.P. New Jersey 23-3091620 Toll NJ VI, L.P. New Jersey 23-3098583 Toll Northville Limited Partnership Michigan 23-2918130 Toll Northville Golf Limited Partnership Michigan 23-2918224 Toll NV Limited Partnership Nevada 23-3010602 Toll PA, L.P. Pennsylvania 23-2879956 Toll PA II, L.P. Pennsylvania 23-3063349 Toll PA III, L.P. Pennsylvania 23-3097666 Toll PA IV, L.P. Pennsylvania 23-3097672 Toll PA V, L.P. Pennsylvania 03-0395087 Toll PA VI, L.P. Pennsylvania 47-0858909 Toll PA VII, L.P. Pennsylvania 68-0533037 Toll Peppertree, L.P. New York 23-2707709 Toll Reston Associates, L.P. Delaware 23-3016263 Toll RI, L.P. Rhode Island 23-3020191 Toll RI II, L.P. Rhode Island 27-0043852 Toll SC, L.P. South Carolina 23-3094632 Toll SC II, L.P. South Carolina 82-0574725 Toll TX, L.P. Texas 23-2984310 Toll TX II, L.P. Texas 23-3090949 Toll VA, L.P. Virginia 23-2952674 Toll VA II, L.P. Virginia 23-3001131 Toll VA IV, L.P. Virginia 75-2972033 Toll VA V, L.P. Virginia 47-0887401
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- Toll Venice Limited Partnership Florida 71-0902794 Toll YL, L.P. California 23-3016250 Toll YL II, L.P. California 80-0014182 Trumbull Hunt Limited Partnership Connecticut 23-2855529 Uwchlan Woods, L.P. Pennsylvania 23-2838958 Valley Forge Conservation Holding, L.P. Pennsylvania 42-1537902 Valley Forge Woods, L.P. Pennsylvania 23-2699971 Valley View Estates Limited Partnership Massachusetts 23-2760768 Village Partners, L.P. Pennsylvania 81-0594073 Waldon Preserve Limited Partnership Michigan 38-3312737 Warwick Greene, L.P. Pennsylvania 23-2968960 Warwick Woods, L.P. Pennsylvania 23-2838950 Washington Greene Development, L.P. New Jersey 23-2815640 West Amwell Limited Partnership New Jersey 23-2570825 Whiteland Woods, L.P. Pennsylvania 23-2833125 Wichita Chase, L.P. Texas 23-2855660 Willowdale Crossing, L.P. Pennsylvania 23-2879951 Wilson Concord, L.P. Tennessee 23-2887824 Woodbury Estates, L.P. New Jersey 23-2855523 The Woods at Highland Lakes, L.P. Ohio 23-2948699 The Woods at Long Valley, L.P. New Jersey 23-2889640 The Woods at Muddy Branch Limited Partnership Maryland 23-2810336 Wrightstown Hunt, L.P. Pennsylvania 23-2838487 Yardley Estates, L.P. Pennsylvania 23-2691658 Belmont Country Club I LLC Virginia 23-2810333** Belmont Country Club II LLC Virginia 23-2810333** Big Branch Overlook L.L.C. Maryland 23-2978195** Brier Creek Country Club I LLC North Carolina 23-2954264** Brier Creek Country Club II LLC North Carolina 23-2954264** C.B.A.Z. Construction Company LLC Arizona 51-0385729** C.B.A.Z, Holding Company LLC Delaware 51-0385729 Creeks Farm L.L.C. Maryland 23-2978195** Dominion Valley Country Club I LLC Virginia 23-2984309** Dominion Valley Country Club II LLC Virginia 23-2984309** ELB Investments I LLC Illinois 23-2963552** ELB Investments II LLC Illinois 23-2963552** FC Investments I LLC Massachusetts 23-2838925** FC Investments II LLC Massachusetts 23-2838925** Feys Property LLC Maryland 23-2978195**
** Uses Employment Identification Number used by its sole member.
State or Other Jurisdiction of I.R.S. Employer Exact name of Registrant as Specified Incorporation or of Identification in Its Charter Organization Number - -------------------------------------- -------------------- --------------- First Brandywine LLC I Delaware 23-2485787** First Brandywine LLC II Delaware 23-2485787** Frenchman's Reserve Realty, LLC Florida 23-2417123** Golf I Country Club Estates at Moorpark LLC California 23-2963547** Golf II Country Club Estates at Moorpark LLC California 23-2963547** High Point at Hopewell, LLC New Jersey 23-3098583** Hunts Bluff LLC Maryland 23-2978195** Long Meadows TBI, LLC Maryland 23-3044366** Martin County Improvement Association LLC Florida 23-2417123** Mizner Realty, L.L.C. Florida 23-2417123** Mountain View Country Club I LLC California 23-3091624** Mountain View Country Club II LLC California 23-3091624** Naples Lakes Country Club, L.L.C. Florida 23-2883354** Naples TBI Realty, LLC Florida 23-2417123** Northville Hills Golf Club LLC Michigan 23-2918224** Nosan & Silverman Homes LLC Michigan 38-3208312 Palm Cove Golf & Yacht Club I LLC Florida 23-3007073** Palm Cove Golf & Yacht Club II LLC Florida 23-3007073** Palm Cove Marina I LLC Florida 23-3007073** Palm Cove Marina II LLC Florida 23-3007073** Regency at Denville LLC New Jersey 23-2810344** Regency at Dominion Valley LLC Virginia 23-2984309** The Regency Golf Club I LLC Virginia 23-2984309** The Regency Golf Club II LLC Virginia 23-2984309** RiverCrest Sewer Company, LLC Pennsylvania 23-3097672** Sapling Ridge, LLC Maryland 23-2978195** South Riding Realty LLC Virginia 23-2861890** SR Amberlea LLC Virginia 23-2861890** Toll Brothers Realty Michigan II LLC Michigan 23-2417123** Toll Cedar Hunt LLC Virginia 23-2994369** Toll DE X, LLC Delaware 23-3098760 Toll-Dublin, LLC California 23-3070669** Toll Equipment, L.L.C. Delaware 23-2417123** Toll NJ I, L.L.C. New Jersey 23-3091620** Toll NJ II, L.L.C. New Jersey 23-3091620** Toll Realty L.L.C. Florida 23-2417123** Toll Reston Associates, L.L.C. Delaware 23-2551790** Toll VA L.L.C Delaware 51-0385728** Toll VA III L.L.C. Virginia 23-2417123** Virginia Construction Co. I, LLC Virginia 23-2417123** Virginia Construction Co. II, LLC Virginia 23-2417123**
** Uses Employment Identification Number used by its sole member. EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b) OF THE ACT February 13, 2003 Securities and Exchange Commission Washington, D.C. 20549 Ladies and Gentlemen: In connection with the qualification of an indenture between Toll Brothers Finance Corp., as Issuer, Toll Brothers, Inc., as Guarantor, and the other Guarantors party thereto and Bank One Trust Company, N.A., as Trustee, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, Bank One Trust Company, National Association By: /s/ Sandra L. Caruba Sandra L. Caruba Senior Counsel Bank One Trust Company, N.A. FFIEC 041 - ---------------------------------- RC-1 Legal Title of Bank -------- Columbus 10 - ---------------------------------- -------- City OH 43271 - ---------------------------------- State Zip Code FDIC Certificate Number - 21377 Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for September 30, 2002 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter. Schedule RC--Balance Sheet
Dollar Amounts in Thousands RCON Bil I Mil I Thou - ------------------------------------------------------------------------------------------------------------------------------- ASSETS 1. Cash and balances due from depository institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin (1) ................................. 0081 303,871 1.a b. Interest-bearing balances (2) .......................................................... 0071 0 1.b 2. Securities: a. Held-to-maturity securities (from Schedule RC-B column A) .............................. 1754 0 2.a b. Available-for-sale securities (from Schedule RC-B, column D) ........................... 1773 120 2.b 3. Federal funds sold and securities purchased under agreements to resell: a. Federal funds sold ..................................................................... B957 694,666 3.a b. Securities purchased under agreements to resell (3) .................................... B989 635,527 3.b 4. Loans and lease financing receivables (from Schedule RC-C): a. Loans and leases held for sale ......................................................... 5369 0 4.a b. Loans and leases, net of unearned income .............................. B528 69,745 4.b c. LESS: Allowance for loan and lease losses ............................. 3123 599 4.c d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) ................................................................... 3529 69,146 4.d 5. Trading assets (from Schedule RC-D)........................................................ 3545 0 5 6. Premises and fixed assets (including capitalized leases)................................... 2145 11,895 6 7. Other real estate owned (from Schedule RC-M)............................................... 2150 0 7 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M)... 2130 0 8 9. Customers' liability to this bank on acceptances outstanding............................... 2155 0 9 10. Intangible assets a. Goodwill................................................................................ 3163 0 10.a b. Other intangible assets (from Schedule RC-M)............................................ 0426 6,991 10.b 11. Other assets (from Schedule RC-F).......................................................... 2160 208,998 11 12. Total assets (sum of items 1 through 11)................................................... 2170 1,931,214 12
- ------------- (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held for trading. (3) Includes all securities resale agreements, regardless of maturity. Bank One Trust Company, N.A. FFIEC 041 - ---------------------------------- RC-2 Legal Title of Bank -------- 11 -------- FDIC Certificate Number - 21377 Schedule RC--Continued
Dollar Amounts in Thousands RCON Bil I Mil I Thou - ------------------------------------------------------------------------------------------------------------------------------- LIABILITIES 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E)............... 2200 1,676,276 13.a (1) Noninterest-bearing (1)...............................................6631 1,225,878 13.a.1 (2) Interest-bearing......................................................6636 450,398 13.a.2 b. Not applicable 14. Federal funds purchased and securities sold under agreements to repurchase a. Federal funds purchased (2)............................................................. B993 0 14.a b. Securities sold under agreements to repurchase (3)...................................... B995 0 14.b 15. Trading liabilities (from Schedule RC-D)................................................... 3548 0 15 16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases) (from Schedule RC-M):.................................................. 3190 0 16 17. Not applicable 18. Bank's liability on acceptances executed and outstanding................................... 2920 0 18 19. Subordinated notes and debentures (4)...................................................... 3200 0 19 20. Other liabilities (from Schedule RC-G)..................................................... 2930 36,936 20 21. Total liabilities (sum of items 13 through 20)............................................. 2948 1,713,212 21 22. Minority interest in consolidated subsidiaries............................................. 3000 0 22 EQUITY CAPITAL 23. Perpetual preferred stock and related surplus.............................................. 3838 0 23 24. Common stock............................................................................... 3230 800 24 25. Surplus (exclude all surplus related to preferred stock)................................... 3839 45,157 25 26. a. Retained earnings....................................................................... 3632 172,042 26.a b. Accumulated other comprehensive income (5).............................................. B530 3 26.b 27. Other equity capital components (6)........................................................ A130 0 27 28. Total equity capital (sum of items 23 through 27).......................................... 3210 218,002 28 29. Total liabilities, minority interest, and equity capital (sum of items 21, 22, and 28)..... 3300 1,931,214 29 Memorandum To be reported with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external RCON Number auditors as of any date during 2001........................................................ 6724 N/A M.1 1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank conducted with generally accepted auditing standards by a certified in accordance with generally accepted auditing public accounting firm which submits a report on the bank standards by a certified public accounting firm 2 = Independent audit of the bank's parent holding company (may be required by state chartering authority) conducted in accordance with generally accepted auditing 5 = Directors' examination of the bank performed by standards by a certified public accounting firm which other external auditors (may be required by state submits a report on the consolidated holding company (but chartering authority) not on the bank separately) 6 = Review of the bank's financial statements by 3 = Attestation on bank management's assertion on the external auditors effectiveness of the bank's internal control over financial 7 = Compilation of the bank's financial statements by reporting by a certified public accounting firm external auditors 8 = Other audit procedures (excluding tax preparation work) 9 = No external audit work
- ---------- (1) Includes total demand deposits and noninterest-bearing time and savings deposits. (2) Report overnight Federal Home Loan Bank advances in Schedule RC, Item 16, "other borrowed money." (3) Includes all securities repurchase agreements, regardless of maturity. (4) Includes limited-life preferred stock and related surplus. (5) Includes net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, and minimum pension liability adjustments. (6) Includes treasury stock and unearned Employee Stock Ownership Plan shares. EX-99.1 99 ex99-1.txt EXHIBIT 99.1 EXHIBIT 99.1 FORM OF LETTER OF TRANSMITTAL WITH RESPECT TO TENDER OF ANY AND ALL OUTSTANDING 6.875% SENIOR NOTES DUE 2012 IN EXCHANGE FOR 6.875% SENIOR NOTES DUE 2012 OF TOLL BROTHERS FINANCE CORP. PURSUANT TO THE PROSPECTUS DATED ___________, 2003 ------------------------------------------------------------------------------- THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ________________, 2003, UNLESS EXTENDED (SUCH TIME AND DATE, AS THE SAME MAY BE EXTENDED FROM TIME TO TIME, THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE. ------------------------------------------------------------------------------- THE EXCHANGE AGENT IS: BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY REGISTERED OR FACSIMILE TRANSACTIONS: BY HAND OR OVERNIGHT DELIVERY: CERTIFIED MAIL: (Eligible Institutions Only) Bank One Trust Company, Bank One Trust Company, (614) 248-9987 National Association National Association 1111 Polaris Parkway 1111 Polaris Parkway TO CONFIRM BY TELEPHONE Suite N1-OH1-0184 Suite N1-OH1-0184 OR FOR INFORMATION CALL: Columbus, Ohio 43240 Columbus, Ohio 43240 (800) 346-5153 Attn: Exchanges Attn: Exchanges
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION TO A FACSIMILE NUMBER OTHER THAN THE ONE LISTED ABOVE WILL NOT CONSTITUTE VALID DELIVERY TO THE EXCHANGE AGENT. The instructions set forth in this Letter of Transmittal should be read carefully before this Letter of Transmittal is completed. The undersigned acknowledges that he or she has received and reviewed the prospectus dated _____________, 2003, of Toll Brothers Finance Corp., a Delaware corporation (the "Company") and this Letter of Transmittal (the "Letter of Transmittal"), which together constitute the Company's offer (the "Exchange Offer") to exchange $1,000 principal amount of its 6.875% Senior Notes due 2012 (the "Exchange Notes") that have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for each $1,000 principal amount of its outstanding 6.875% Senior Notes due 2012 ("Old Notes"). Recipients of the prospectus should read the requirements described in the prospectus with respect to eligibility to participate in the Exchange Offer. Capitalized terms used but not defined herein have the meaning given to them in the prospectus. PLEASE READ THIS ENTIRE LETTER OF TRANSMITTAL CAREFULLY BEFORE CHECKING ANY BOX BELOW. This Letter of Transmittal is to be used by a holder of Old Notes: - if certificates representing tendered Old Notes are to be forwarded herewith; or - if a tender is made pursuant to the guaranteed delivery procedures in the section of the prospectus entitled "The Exchange Offer--Procedures for Tendering Old Notes." Holders that are tendering by book-entry transfer to the exchange agent's account at DTC can execute the tender through ATOP for which the Exchange Offer will be eligible. DTC participants that are accepting the Exchange Offer must transmit their acceptance to DTC which will verify the acceptance and execute a book-entry delivery to the exchange agent's account at DTC. DTC will then send an agent's message forming part of a book-entry transfer in which the participant agrees to be bound by the terms of the Letter of Transmittal (an "Agent's Message") to the exchange agent for its acceptance. Transmission of the Agent's Message by DTC will satisfy the terms of the Exchange Offer as to execution and delivery of a Letter of Transmittal by the participant identified in the Agent's Message. In order to properly complete this Letter of Transmittal, a holder of Old Notes must: - complete the box entitled "Description of Old Notes Tendered"; - if appropriate, check and complete the boxes relating to book-entry transfer, guaranteed delivery, Special Issuance Instructions and Special Delivery Instructions; - sign the Letter of Transmittal by completing the box entitled "Sign Here"; and - complete the Substitute Form W-9. Each holder of Old Notes should carefully read the detailed instructions below prior to completing the Letter of Transmittal. Holders of Old Notes who desire to tender their Old Notes for exchange and whose Old Notes are not immediately available or who cannot deliver their Old Notes, this Letter of Transmittal and all other documents required hereby to the exchange agent or complete the procedures for book-entry transfer on or prior to the Expiration Date, must tender the Old Notes pursuant to the guaranteed delivery procedures set forth in the section of prospectus entitled "The Exchange Offer--Procedures for Tendering Old Notes." See Instruction 2. Delivery of documents to DTC does not constitute delivery to the exchange agent. In order to ensure participation in the Exchange Offer, Old Notes must be properly tendered prior to the Expiration Date. -2- Holders of Old Notes who wish to tender their Old Notes for exchange must complete columns (1) through (3) in the box below entitled "Description of Old Notes Tendered," and sign the box below entitled "Sign Here." If only those columns are completed, such holder of Old Notes will have tendered for exchange all Old Notes listed in column (3) below. If the holder of Old Notes wishes to tender for exchange less than all of such Old Notes, column (4) must be completed in full. In such case, such holder of Old Notes should refer to Instruction 5. The Exchange Offer may be extended, terminated or amended, as provided in the prospectus. During any such extension of the Exchange Offer, all Old Notes previously tendered and not withdrawn pursuant to the Exchange Offer will remain subject to such Exchange Offer. The Exchange Offer is scheduled to expire at 5:00 p.m., New York City time, on ________, 2003, unless extended by the Company. The undersigned hereby tenders for exchange the Old Notes described in the box entitled "Description of Old Notes Tendered" below pursuant to the terms and conditions described in the prospectus and this Letter of Transmittal.
- ---------------------------------------------------------------------------------------------------------------------- DESCRIPTION OF OLD NOTES TENDERED - ---------------------------------------------------------------------------------------------------------------------- (1) (2) (3) (4) NAME(S) AND ADDRESS(ES) CERTIFICATE AGGREGATE PRINCIPAL AMOUNT OF REGISTERED HOLDER(S) NUMBER(S) PRINCIPAL AMOUNT TENDERED FOR (PLEASE FILL IN, IF BLANK) REPRESENTED BY EXCHANGE (A) CERTIFICATE(S) - --------------------------------------------------- ----------------------- -------------------- --------------------- - --------------------------------------------------- ----------------------- -------------------- --------------------- - --------------------------------------------------- ----------------------- -------------------- --------------------- - --------------------------------------------------- ----------------------- -------------------- --------------------- - --------------------------------------------------- ----------------------- -------------------- --------------------- - --------------------------------------------------- ----------------------- -------------------- --------------------- - --------------------------------------------------- ----------------------- -------------------- --------------------- - --------------------------------------------------- ----------------------- -------------------- --------------------- TOTAL PRINCIPAL AMOUNT TENDERED - --------------------------------------------------- ----------------------- -------------------- ---------------------
(A) Unless otherwise indicated in this column, any tendering holder will be deemed to have tendered the entire principal amount represented by the Old Notes indicated in the column labeled "Aggregate Principal Amount Represented by Certificate(s)." See Instruction 5. The minimum permitted tender is $1,000 in principal amount of Old Notes. All other tenders must be integral multiples of $1,000. / / CHECK HERE IF TENDERED OLD NOTES ARE ENCLOSED HEREWITH. -3- / / CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE FOLLOWING (FOR USE BY ELIGIBLE INSTITUTIONS ONLY): Name(s) of Registered Holder(s) ______________________________________ Window Ticket Number (if any) ________________________________________ Date of Execution of Notice of Guaranteed Delivery ___________________ Name of Institution that guaranteed delivery _________________________ Only registered holders are entitled to tender their Old Notes for exchange in the Exchange Offer. Any financial institution that is a participant in DTC's system and whose name appears on a security position listing as the record owner of the Old Notes and who wishes to make book-entry delivery of Old Notes as described above must complete and execute a participant's letter (which will be distributed to participants by DTC) instructing DTC's nominee to tender such Old Notes for exchange. Persons who are beneficial owners of Old Notes but are not registered holders and who seek to tender Old Notes should: - contact the registered holder of such Old Notes and instruct such registered holder to tender on his or her behalf; - obtain and include with this Letter of Transmittal, Old Notes properly endorsed for transfer by the registered holder or accompanied by a written instrument of transfer in form satisfactory to the Company from the registered holder, with signatures on the endorsement or written instrument of transfer guaranteed by a bank, broker, dealer, credit union, savings association, clearing agency or other institution, each an "eligible institution" that is a member of a recognized signature guarantee medallion program within the meaning of Rule 17Ad-15 under the Securities Exchange Act of 1934 (each, an "Eligible Institution"); or - effect a record transfer of such Old Notes from the registered holder to such beneficial owner and comply with the requirements applicable to registered holders for tendering Old Notes prior to the Expiration Date. See the section entitled "The Exchange Offer--Procedures for Tendering Old Notes" in the prospectus. SIGNATURES MUST BE PROVIDED BELOW. PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY. -4- Ladies and Gentlemen: Upon the terms and subject to the conditions of the Exchange Offer, the undersigned hereby tenders to the Company for exchange the Old Notes indicated above. Subject to, and effective upon, acceptance for purchase of the Old Notes tendered herewith, the undersigned hereby sells, assigns, transfers and exchanges to the Company all right, title and interest in and to all such Old Notes tendered for exchange hereby. The undersigned hereby irrevocably constitutes and appoints the exchange agent as the true and lawful agent and attorney-in-fact of the undersigned (with full knowledge that the exchange agent also acts as agent of the Company) with respect to such Old Notes, with full power of substitution and resubstitution (such power of attorney being deemed to be an irrevocable power coupled with an interest) to: - deliver certificates representing such Old Notes, or transfer ownership of such Old Notes on the account books maintained by DTC, together, in each such case, with all accompanying evidences of transfer and authenticity to the Company; - present and deliver such Old Notes for transfer on the books of the Company; and - receive all benefits or otherwise exercise all rights and incidents of beneficial ownership of such Old Notes, all in accordance with the terms of the Exchange Offer. The undersigned represents and warrants that it has full power and authority to tender, exchange, assign and transfer the Old Notes and to acquire Exchange Notes issuable upon the exchange of such tendered Old Notes, and that, when the same are accepted for exchange, the Company will acquire good and unencumbered title to the tendered Old Notes, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claim. The undersigned also warrants that it will, upon request, execute and deliver any additional documents deemed by the exchange agent or the Company to be necessary or desirable to complete the exchange, assignment and transfer of tendered Old Notes or transfer ownership of such Old Notes on the account books maintained by the book-entry transfer facility. The undersigned further agrees that acceptance of any and all validly tendered Old Notes by the Company and the issuance of Exchange Notes in exchange therefor shall constitute performance in full by the Company of its obligations under the Registration Rights Agreement. By tendering, each holder of Old Notes represents that the Exchange Notes acquired in the exchange will be obtained in the ordinary course of such holder's business, that such holder has no arrangement with any person to participate in the distribution of such Exchange Notes, that such holder is not an "affiliate" of the Company within the meaning of Rule 405 under the Securities Act and that such holder is not engaged in, and does not intend to engage in, a distribution of the Exchange Notes. Any holder of Old Notes who is an affiliate of the Company or who tenders Old Notes in the Exchange Offer for the purpose of participating in a distribution of the Exchange Notes cannot rely on the position of the staff of the Securities and Exchange Commission (the "Commission") enunciated in its series of interpretive "no-action" letters with respect to exchange offers and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction. -5- If the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes. If the undersigned is a broker-dealer holding Old Notes that were acquired for its own account as a result of market-making activities or other trading activities, it acknowledges that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of Exchange Notes received in respect of such Old Notes pursuant to the Exchange Offer; however, by so acknowledging and by delivering a prospectus in connection with the exchange of Old Notes, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. All authority conferred or agreed to be conferred pursuant to this Letter of Transmittal and every obligation of the undersigned hereunder shall be binding upon the successors, assigns, heirs, executors, administrators, trustees in bankruptcy, and personal and legal representatives of the undersigned and shall not be affected by, and shall survive, the death or incapacity of the undersigned. Old Notes properly tendered may be withdrawn at any time prior to the Expiration Date in accordance with the terms of this Letter of Transmittal. The Exchange Offer is subject to certain conditions, each of which may be waived or modified by the Company, in whole or in part, at any time and from time to time, as described in the prospectus under the caption "The Exchange Offer--Certain Conditions to the Exchange Offer." The undersigned recognizes that as a result of such conditions the Company may not be required to accept for exchange, or to issue Exchange Notes in exchange for, any of the Old Notes properly tendered hereby. In such event, the tendered Old Notes not accepted for exchange will be returned to the undersigned without cost to the undersigned at the address shown below the undersigned's signature(s) unless otherwise indicated under "Special Issuance Instructions" below. Unless otherwise indicated under "Special Issuance Instructions" below, please return any certificates representing Old Notes not tendered or not accepted for exchange in the name(s) of the holder(s) appearing under "Description of Old Notes Tendered." Similarly, unless otherwise indicated under "Special Delivery Instructions," please mail any certificates representing Old Notes not tendered or not accepted for exchange (and accompanying document, as appropriate) to the address(es) of the holder(s) appearing under "Description of Old Notes Tendered." In the event that both the "Special Issuance Instructions" and the "Special Delivery Instructions" are completed, please issue the certificates representing the Exchange Notes issued in exchange for the Old Notes accepted for exchange in the name(s) of, and return any Old Notes not tendered or not accepted for exchange to, the person or persons so indicated. Unless otherwise indicated under "Special Issuance Instructions," in the case of a book-entry delivery of Old Notes, please credit the account maintained at DTC with any Old Notes not tendered or not accepted for exchange. The undersigned recognizes that the Company does not have any obligation pursuant to the Special Issuance Instructions, to transfer any Old Notes from the name of the holder thereof if the Company does not accept for exchange any of the Old Notes so tendered or if such transfer would not be in compliance with any transfer restrictions applicable to such Old Notes. -6- SPECIAL ISSUANCE INSTRUCTIONS (SEE INSTRUCTIONS 1, 6, 7 AND 8) To be completed ONLY if (i) Exchange Notes issued for Old Notes, certificates for Old Notes in a principal amount not exchanged for Exchange Notes, or Old Notes (if any) not tendered for exchange are to be issued in the name of someone other than the undersigned, or (ii) Old Notes tendered by book-entry transfer which are not exchanged are to be returned by credit to an account maintained at DTC other than the account indicated above. Issue to: Name:___________________________________________________________________________ (PLEASE PRINT) Address:________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (INCLUDE ZIP CODE) ________________________________________________________________________________ (TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER) Credit Old Notes not exchanged and delivered by book-entry transfer to the DTC account set forth below: ________________________________________________________________________________ (ACCOUNT NUMBER) SPECIAL DELIVERY INSTRUCTIONS (SEE INSTRUCTIONS 1, 6, 7 AND 8) To be completed ONLY if the Exchange Notes issued for Old Notes, certificates for Old Notes in a principal amount not exchanged for Exchange Notes, or Old Notes (if any) not tendered for exchange are to be sent to someone other than the undersigned or to the undersigned at an address other than that shown above. Mail to: Name:___________________________________________________________________________ (PLEASE PRINT) Address:________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (INCLUDE ZIP CODE) ________________________________________________________________________________ (TAXPAYER IDENTIFICATION OR SOCIAL SECURITY NUMBER) -7- SIGN HERE TO TENDER YOUR OLD NOTES IN THE EXCHANGE OFFER ________________________________________________________________________________ ________________________________________________________________________________ SIGNATURE(S) OF HOLDER(S) OF OLD NOTES Dated:__________________________________________________________________________ (Must be signed by the registered holder(s) of Old Notes exactly as name(s) appear(s) on certificate(s) representing the Old Notes or on a security position listing or by person(s) authorized to become registered holder(s) by certificates and documents transmitted herewith. If signature is by attorney-in-fact, executor, administrator, trustee, guardian, officer of a corporation or other person acting in a fiduciary or representative capacity, please provide the following information and see Instruction 6.) Capacity (Full Title) __________________________________________________________ ________________________________________________________________________________ Name(s)_________________________________________________________________________ ________________________________________________________________________________ (PLEASE TYPE OR PRINT) Address_________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ Area Code and Telephone Number ( )__________________________________________ Tax Identification or Social Security No._______________________________________ GUARANTEE OF SIGNATURE(S) (IF REQUIRED--SEE INSTRUCTIONS 1 AND 6) Authorized Signature ___________________________________________________________ Name ___________________________________________________________________________ (PLEASE TYPE OR PRINT) Title __________________________________________________________________________ Name of Firm ___________________________________________________________________ -8- Address ________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ ________________________________________________________________________________ (INCLUDE ZIP CODE) Area Code and Telephone Number ( )__________________________________________ Dated:__________________________________________________________________________ IMPORTANT: COMPLETE AND SIGN THE SUBSTITUTE FORM W-9 IN THIS LETTER OF TRANSMITTAL -9- INSTRUCTIONS FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER 1. GUARANTEE OF SIGNATURES. Signatures on this Letter of Transmittal need not be guaranteed if the Old Notes tendered hereby are tendered: - by the registered holder(s) of Old Notes thereof, unless such holder has completed either the box entitled "Special Issuance Instructions" or the box entitled "Special Delivery Instructions" above; or - to the account of a firm that is an Eligible Institution. In all other cases, all signatures on this Letter of Transmittal must be guaranteed by an Eligible Institution. Persons who are beneficial owners of Old Notes but are not the registered holder(s) and who seek to tender Old Notes for exchange should: - contact the registered holder(s) of such Old Notes and instruct such registered holder(s) to tender on such beneficial owner's behalf; - obtain and include with this Letter of Transmittal, Old Notes properly endorsed for transfer by the registered holder or accompanied by a written instrument of transfer in form satisfactory to the Company from the registered holder, with signatures on the endorsement or written instrument of transfer guaranteed by an Eligible Institution; or - effect a record transfer of such Old Notes from the registered holder(s) to such beneficial owner and comply with the requirements applicable to registered holder(s) for tendering Old Notes for exchange prior to the Expiration Date. See Instruction 6. 2. DELIVERY OF THIS LETTER OF TRANSMITTAL AND CERTIFICATES FOR OLD NOTES OR BOOK-ENTRY CONFIRMATIONS; GUARANTEED DELIVERY PROCEDURES. This Letter of Transmittal is to be completed by registered holder(s) if certificates representing Old Notes are to be forwarded herewith. All physically delivered Old Notes, as well as a properly completed and duly executed Letters of Transmittal (or manually signed facsimiles thereof) and any other required documents, must be received by the exchange agent at its address set forth on the cover of this Letter of Transmittal prior to the Expiration Date or the tendering holder must comply with the guaranteed delivery procedures set forth below. Delivery of the documents to DTC does not constitute delivery to the exchange agent. The method of delivery of this Letter of Transmittal, Old Notes and all other required documents to the exchange agent is at the election and risk of the holder thereof. If such delivery is by mail, it is suggested that holders use properly insured registered mail, return receipt requested, and that the mailing be sufficiently in advance of the Expiration Date, to permit delivery to the exchange agent prior to such date. Except as otherwise provided below, the delivery will be deemed made when actually received or confirmed by the exchange agent. This Letter of Transmittal and Old Notes tendered for exchange should be sent only to the exchange agent, not to the Company. -10- A holder who desires to tender Old Notes for exchange and who cannot comply with the procedures set forth herein for tender on a timely basis or whose Old Notes are not immediately available must comply with the guaranteed delivery procedures described below. If holders desire to tender Old Notes for exchange pursuant to the Exchange Offer and: - time will not permit this Letter of Transmittal, certificates representing Old Notes or other required documents to reach the exchange agent prior to the Expiration Date; or - the procedures for book-entry transfer cannot be completed prior to the Expiration Date, such holder may effect a tender of Old Notes for exchange in accordance with the guaranteed delivery procedures set forth in the prospectus under the caption "The Exchange Offer--Procedures for Tendering Old Notes." Pursuant to the guaranteed delivery procedures: (a) such tender must be made by or through an Eligible Institution; (b) prior to the Expiration Date, the exchange agent must have received from such Eligible Institution, at one of the addresses of the exchange agent set forth herein, a properly completed and duly executed Notice of Guaranteed Delivery (by facsimile, mail or hand delivery) substantially in the form provided by the Company setting forth the name(s) and address(es) of the registered holder(s) of such Old Notes, the certificate number(s) and the principal amount of Old Notes being tendered for exchange and stating that the tender is being made thereby and guaranteeing that, within three (3) business days after the Expiration Date, a properly completed and duly executed Letter of Transmittal, or a facsimile thereof, together with certificates representing the Old Notes (or confirmation of book-entry transfer of such Old Notes into the exchange agent's account with DTC and an Agent's Message) and any other documents required by this Letter of Transmittal and the instructions hereto, will be deposited by such Eligible Institution with the exchange agent; and (c) this Letter of Transmittal or a facsimile thereof, properly completed together with duly executed certificates for all physically delivered Old Notes in proper form for transfer (or confirmation of book-entry transfer of such Old Notes into the exchange agent's account with DTC as described above) and all other required documents must be received by the exchange agent within three (3) business days after the date of the Notice of Guaranteed Delivery. All tendering holders, by execution of this Letter of Transmittal, waive any right to receive any notice of the acceptance of their Old Notes for exchange. 3. INADEQUATE SPACE. If the space provided in the box entitled "Description of Old Notes Tendered" above is inadequate, the certificate numbers and principal amounts of Old Notes tendered should be listed on a separate signed schedule affixed hereto. -11- 4. WITHDRAWAL OF TENDERS. For a withdrawal to be effective, a written notice of withdrawal sent by telex, facsimile transmission, or letter must be received by the exchange agent at the address set forth on the cover of this Letter of Transmittal before the Expiration Date. To be effective, a notice of withdrawal must: - specify the name of the person having tendered the Old Notes to be withdrawn (the "Depositor"); - identify the Old Notes to be withdrawn (including the certificate number or numbers and principal amount of such Old Notes); - include a statement that such holder is withdrawing his election to have such Old Notes exchanged; - be signed by the holder in the same manner as the original signature on the Letter of Transmittal by which such Old Notes were tendered or as otherwise described above (including any required signature guarantees) or be accompanied by documents of transfer sufficient to have the trustee under the Indenture register the transfer of such Old Notes into the name of the person withdrawing the tender; and - specify the name in which any such Old Notes are to be registered, if different from that of the Depositor. The exchange agent will return the properly withdrawn Old Notes promptly following receipt of notice of withdrawal. If Old Notes have been tendered pursuant to the procedure for book-entry transfer, any notice of withdrawal must specify the name and number of the account at the book-entry transfer facility. All questions as to the validity of notices of withdrawals, including, time of receipt, will be determined by the Company and such determination will be final and binding on all parties. Any Old Notes so withdrawn will be deemed not to have been validly tendered for exchange for purposes of the Exchange Offer. Any Old Notes which have been tendered for exchange but which are not exchanged for any reason will be returned to the holder thereof without cost to such holder (or, in the case of Old Notes tendered by book-entry transfer into the exchange agent's account at the book-entry transfer facility pursuant to the book-entry transfer procedures described above, such Old Notes will be credited to an account with such book-entry transfer facility specified by the holder) as soon as practicable after withdrawal, rejection of tender or termination of the Exchange Offer. Properly withdrawn Old Notes may be retendered by following one of the procedures described under the caption "The Exchange Offer--Procedures for Tendering Old Notes" in the prospectus at any time prior to the Expiration Date. 5. PARTIAL TENDERS (NOT APPLICABLE TO HOLDERS OF OLD NOTES WHO TENDER BY BOOK-ENTRY TRANSFER). Tenders of Old Notes will be accepted only in integral multiples of $1,000 principal amount. If a tender for exchange is to be made with respect to less than the entire principal amount of any Old Notes, fill in the principal amount of Old Notes which are tendered for exchange in column (4) of the box entitled "Description of Old Notes Tendered," as more fully described in the footnotes thereto. In the case of a partial tender for exchange, a new -12- certificate, in fully registered form, for the remainder of the principal amount of the Old Notes, will be sent to the holders of Old Notes unless otherwise indicated in the boxes entitled "Special Issuance Instructions" or "Special Delivery Instructions" above, as soon as practicable after the expiration or termination of the Exchange Offer. 6. SIGNATURES ON THIS LETTER OF TRANSMITTAL; INSTRUMENTS OF TRANSFER AND ENDORSEMENTS. If this Letter of Transmittal is signed by the holder(s) of the Old Notes tendered for exchange hereby, the signature(s) must correspond exactly with the name(s) as written on the face of the certificate(s) without alteration, enlargement or any change whatsoever. If any of the Old Notes tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal. If any tendered Old Notes are registered in different names on several certificates, it will be necessary to complete, sign and submit as many separate copies of this Letter of Transmittal and any necessary or required documents as there are names in which certificates are held. If this Letter of Transmittal or any certificates or powers of attorney are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and proper evidence satisfactory to the Company of its authority so to act must be submitted, unless waived by the Company. If this Letter of Transmittal is signed by the holder(s) of the Old Notes listed and transmitted hereby, no endorsements of certificates or instruments of transfer are required unless certificates for Old Notes not tendered or not accepted for exchange are to be issued or returned in the name of a person other than for the holder(s) thereof. Signatures on such certificates must be guaranteed by an Eligible Institution (unless signed by an Eligible Institution). If this Letter of Transmittal is signed by a person other than the registered holder(s) of the Old Notes, the certificates representing such Old Notes must be properly endorsed for transfer by the registered holder or be accompanied by a written instrument of transfer in form satisfactory to the Company from the registered holder, in either case signed by such registered holder(s) exactly as the name(s) of the registered holder(s) the Old Notes appear(s) on the certificates. Signatures on the endorsement or written instrument of transfer must be guaranteed by an Eligible Institution (unless signed by an Eligible Institution). 7. TRANSFER TAXES. Except as set forth in this Instruction 7, the Company will pay or cause to be paid any transfer taxes applicable to the exchange of Old Notes pursuant to the Exchange Offer. However, the transfer taxes will be payable by the tendering holder if: o certificates representing Exchange Notes or Old Notes for principal amounts not tendered or accepted for exchange are to be delivered to, or are to be issued in the name of, any person other than the registered holder of the Old Notes tendered; or o tendered Old Notes are registered in the name of any person other than the person signing the Letter of Transmittal; or -13- o a transfer tax is imposed for any reason other than the exchange of Old Notes pursuant to the Exchange Offer. If satisfactory evidence of the payment of such taxes or exemptions therefrom is not submitted with this Letter of Transmittal, the amount of such transfer taxes will be billed directly to such tendering holder. 8. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If the Exchange Notes are to be issued or if any Old Notes not tendered or not accepted for exchange are to be issued or sent to a person other than the person(s) signing this Letter of Transmittal or to an address other than that shown above, the appropriate boxes on this Letter of Transmittal should be completed. Holders of Old Notes tendering Old Notes by book-entry transfer may request that Old Notes not accepted for exchange be credited to such account maintained at DTC as such holder may designate. 9. IRREGULARITIES. All questions as to the forms of all documents and the validity of (including time of receipt) and acceptance of the tenders and withdrawals of Old Notes will be determined by the Company, in its sole discretion, which determination shall be final and binding. Alternative, conditional or contingent tenders will not be considered valid. The Company reserves the absolute right to reject any or all tenders of Old Notes that are not in proper form or the acceptance of which would, in the Company's opinion, be unlawful. The Company also reserves the right to waive any defects, irregularities or conditions of tender as to particular Old Notes. The Company's interpretations of the terms and conditions of the Exchange Offer (including the instructions in this Letter of Transmittal) will be final and binding. Any defect or irregularity in connection with tenders of Old Notes must be cured within such time as the Company determines, unless waived by the Company. Tenders of Old Notes shall not be deemed to have been made until all defects or irregularities have been waived by the Company or cured. Neither the Company, the exchange agent, nor any other person will be under any duty to give notice of any defects or irregularities in tenders of Old Notes, or will incur any liability to registered holders of Old Notes for failure to give such notice. 10. WAIVER OF CONDITIONS. To the extent permitted by applicable law, the Company reserves the right to waive any and all conditions to the Exchange Offer as described under "The Exchange Offer--Certain Conditions to the Exchange Offer" in the prospectus, and accept for exchange any Old Notes tendered. 11. TAX IDENTIFICATION NUMBER AND BACKUP WITHHOLDING. Federal income tax law generally requires that a holder of Old Notes whose tendered Old Notes are accepted for exchange or such holder's assignee (in either case, the "Payee"), provide the exchange agent (the "Payor") with such Payee's correct Taxpayer Identification Number ("TIN"), which, in the case of a Payee who is an individual, is such Payee's social security number. If the Payor is not provided with the correct TIN or an adequate basis for an exemption, such Payee may be subject to a $50 penalty imposed by the Internal Revenue Service and backup withholding in an amount equal to 30% of the gross proceeds received pursuant to the Exchange Offer. If withholding results in an overpayment of taxes, a refund may be obtained. -14- To prevent backup withholding, each Payee must provide such Payee's correct TIN by completing the "Substitute Form W-9" set forth herein, certifying that the TIN provided is correct (or that such Payee is awaiting a TIN) and that: - the Payee is exempt from backup withholding; - the Payee has not been notified by the Internal Revenue Service that such Payee is subject to backup withholding as a result of a failure to report all interest or dividends; or - the Internal Revenue Service has notified the Payee that such Payee is no longer subject to backup withholding. If the Payee does not have a TIN, such Payee should consult the enclosed Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (the "W-9 Guidelines") for instructions on applying for a TIN, write "Applied For" in the space for the TIN in Part 1 of the Substitute Form W-9, and sign and date the Substitute Form W-9 and the Certificate of Awaiting Taxpayer Identification Number set forth herein. If the Payee does not provide such Payee's TIN to the Payor within 60 days, backup withholding will begin and continue until such Payee furnishes such Payee's TIN to the Payor. NOTE: Writing "Applied For" on the form means that the Payee has already applied for a TIN or that such Payee intends to apply for one in the near future. If Old Notes are held in more than one name or are not in the name of the actual owner, consult the W-9 Guidelines for information on which TIN to report. Exempt Payees (including, among others, all corporations and certain foreign individuals) are not subject to these backup withholding and reporting requirements. To prevent possible erroneous backup withholding, an exempt Payee must enter its correct TIN in Part I of the Substitute Form W-9, write "Exempt" in Part 2 of such form and sign and date the form. See the W-9 Guidelines for additional instructions. In order for a nonresident alien or foreign entity to qualify as exempt, such person must submit a completed Form W-8, "Certificate of Foreign Status," signed under penalty of perjury attesting to such exempt status. Such form may be obtained from the Payor. 12. MUTILATED, LOST, STOLEN OR DESTROYED OLD NOTES. Any holder of Old Notes whose Old Notes have been mutilated, lost, stolen or destroyed should contact the exchange agent at the address or telephone number set forth on the cover of this Letter of Transmittal for further instructions. 13. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for assistance or for additional copies of the prospectus, this Letter of Transmittal, the Notice of Guaranteed Delivery and the Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 may be directed to the exchange agent at its address set forth on the cover of this Letter of Transmittal. IMPORTANT--THIS LETTER OF TRANSMITTAL, TOGETHER WITH CERTIFICATES FOR TENDERED OLD NOTES AND ALL OTHER REQUIRED DOCUMENTS, WITH ANY REQUIRED SIGNATURE -15- GUARANTEES AND ALL OTHER REQUIRED DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE. PAYOR'S NAME: BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
- ---------------------------------------------------------------------------------------------------------------------- SUBSTITUTE Part 1 - PLEASE TIN ____________________________ FORM W-9 PROVIDE YOUR TIN IN (Social Security Number or THE BOX AT RIGHT AND Employer Identification Number) CERTIFY BY SIGNING AND DATING BELOW ------------------------------------------------------------------------- Part 2 - FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING PLEASE WRITE "EXEMPT" HERE (SEE INSTRUCTIONS) ------------------------------------------------------------------------- Part 3--CERTIFICATION UNDER PENALTIES OF PERJURY, I CERTIFY THAT (1) The number shown on this form is my correct TIN (or I am waiting for a number to be issued to me), and (2) I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of a failure to report all interest or dividends or (c) the IRS has notified me that I am no longer subject to backup withholding. Department of the Treasury Internal Revenue Service ------------------------------------------------------------------------- Payor's Request for THE INTERNAL REVENUE SERVICE DOES NOT REQUIRE YOUR CONSENT TO ANY Taxpayer Identification PROVISION OF THIS DOCUMENT OTHER THAN THE CERTIFICATIONS REQUIRED TO Number ("TIN") AVOID BACK-UP WITHHOLDING and Certification SIGNATURE _______________ DATE ___________ - ----------------------------------------------------------------------------------------------------------------------
You must cross out item (2) of Part 3 above if you have been notified by the IRS that you are currently subject to backup withholding because of underreporting interest or dividends on your tax return. YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU WROTE "APPLIED FOR" IN PART 1 OF THE SUBSTITUTE FORM W-9 CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER I CERTIFY UNDER PENALTIES OF PERJURY THAT A TAXPAYER IDENTIFICATION NUMBER HAS NOT BEEN ISSUED TO ME, AND THAT I MAILED OR DELIVERED AN APPLICATION TO RECEIVE A TAXPAYER IDENTIFICATION NUMBER TO THE APPROPRIATE INTERNAL REVENUE SERVICE CENTER OR SOCIAL SECURITY ADMINISTRATIVE OFFICE (OR I INTEND TO MAIL OR DELIVER AN APPLICATION IN THE NEAR FUTURE). I UNDERSTAND THAT IF I DO NOT PROVIDE A TAXPAYER IDENTIFICATION NUMBER TO THE PAYOR WITHIN 60 DAYS, THE PAYOR IS REQUIRED TO WITHHOLD 30 PERCENT OF ALL CASH PAYMENTS MADE TO ME THEREAFTER UNTIL I PROVIDE A NUMBER. Signature ____________ Date ____________ -16- NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING OF 30 PERCENT OF ANY CASH PAYMENTS. PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS. -17- EX-99.2 100 ex99-2.txt EXHIBIT 99.2 EXHIBIT 99.2 FORM OF NOTICE OF GUARANTEED DELIVERY WITH RESPECT TO TENDER OF ANY AND ALL OUTSTANDING 6.875% SENIOR NOTES DUE 2012 IN EXCHANGE FOR 6.875% SENIOR NOTES DUE 2012 OF TOLL BROTHERS FINANCE CORP. PURSUANT TO THE PROSPECTUS DATED ___________, 2003 THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ____________, 2003, UNLESS EXTENDED (SUCH TIME AND DATE, AS THE SAME MAY BE EXTENDED FROM TIME TO TIME, THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE. THE EXCHANGE AGENT IS: BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY REGISTERED OR FACSIMILE TRANSACTIONS: BY HAND OR OVERNIGHT DELIVERY: CERTIFIED MAIL: (Eligible Institutions Only) Bank One Trust Company, Bank One Trust Company, (614) 248-9987 National Association National Association 1111 Polaris Parkway, Suite N1-OH1-0184 1111 Polaris Parkway, Suite TO CONFIRM BY TELEPHONE Columbus, Ohio 43240 N1-OH1-0184 Columbus, Ohio OR FOR INFORMATION CALL: Attn: Exchanges 43240 Attn: Exchanges (800) 346-5153
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR TRANSMISSION VIA FACSIMILE, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE VALID DELIVERY. As set forth in the prospectus dated ___________, 2003 of Toll Brothers Finance Corp. (the "Company") and in the accompanying Letter of Transmittal and instructions thereto (the "Letter of Transmittal"), this form or one substantially equivalent hereto must be used to accept the Company's offer (the "Exchange Offer") to exchange new 6.875% Senior Notes due 2012 ("Exchange Notes") that have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for all of its outstanding 6.875% Senior Notes due 2012 (the "Old Notes") if the Letter of Transmittal or any other documents required thereby cannot be delivered to the exchange agent, or Old Notes cannot be delivered or if the procedures for book-entry transfer cannot be completed prior to the Expiration Date. This form may be delivered by an Eligible Institution (as defined in the prospectus) by mail or hand delivery or transmitted, via facsimile, to the exchange agent as set forth above. Capitalized terms used but not defined herein shall have the meaning given to them in the prospectus. THIS FORM IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON THE LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE LETTER OF TRANSMITTAL. -2- Ladies and Gentlemen: The undersigned hereby tender(s) to the Company, upon the terms and subject to the conditions set forth in the prospectus and the related Letter of Transmittal (receipt of which is hereby acknowledged), the principal amount of Old Notes specified below pursuant to the guaranteed delivery procedures set forth in the prospectus and in Instruction 2 of the Letter of Transmittal. By so tendering, the undersigned does hereby make, at and as of the date hereof, the representations and warranties of a tendering holder of Old Notes set forth in the Letter of Transmittal. The undersigned understands that tenders of Old Notes may be withdrawn if the exchange agent receives at one of its addresses specified on the cover of this Notice of Guaranteed Delivery, not later than 5:00 p.m., New York City time on the Expiration Date, a facsimile transmission or letter setting forth the name of the holder, the aggregate principal amount of Old Notes the holder delivered for exchange, the certificate number(s) (if any) of the Old Notes and a statement that such holder is withdrawing his election to have such Old Notes or any portion thereof exchanged, in accordance with the procedures set forth in the prospectus. All authority conferred or agreed to be conferred by this Notice of Guaranteed Delivery shall not be affected by, and shall survive, the death or incapacity of the undersigned, and every obligation of the undersigned under this Notice of Guaranteed Delivery shall be binding upon the heirs, executors, administrators, trustees in bankruptcy, personal and legal representatives, successors and assigns of the undersigned. -3- PLEASE SIGN AND COMPLETE
- ---------------------------------------------------------------------------------------- Signature(s) of registered holder(s) or Date: ---------------------------------- Authorized Signatory: Address: ------------------------------- - --------------------- ---------------------------------------- - ------------------------------------------- Area Code and Telephone No. ------------ - ------------------------------------------- Name(s) of registered holder(s): - ------------ If Old Notes will be delivered by - ------------------------------------------- book-entry transfer, check trust company - ------------------------------------------- below: Principal Amount of Old Notes Tendered: / / The Depository Trust Company - ------------------------------------------- - ------------------------------------------- - ------------------------------------------- Certificate No.(s) of Old Notes (if Depository Account No. ----------------- available): - -------------------------------------------
- -------------------------------------------------------------------------------- DO NOT SEND OLD NOTES WITH THIS FORM. OLD NOTES SHOULD BE SENT TO THE EXCHANGE AGENT TOGETHER WITH A PROPERLY COMPLETED AND DULY EXECUTED LETTER OF TRANSMITTAL. - -------------------------------------------------------------------------------- This Notice of Guaranteed Delivery must be signed by the registered holder(s) of the Old Notes exactly as their name(s) appear on certificate(s) for the Old Notes or, if tendered by a participant in one of the book-entry transfer facilities, exactly as such participant's name appears on a security position listing as the owner of Old Notes, or by person(s) authorized to become registered holder(s) by endorsements and documents transmitted with this Notice of Guaranteed Delivery. If the signature above is by a trustee, executor, administrator, guardian, attorney-in-fact, officer or other person acting in a fiduciary or representative capacity, such person must provide the following information: PLEASE PRINT NAME(S) AND ADDRESS(ES) Name(s): ______________________________________________________________________ _______________________________________________________________________________ Capacity: _____________________________________________________________________ Address(es): __________________________________________________________________ _______________________________________________________________________________ - -------------------------------------------------------------------------------- -4- GUARANTEE (NOT TO BE USED FOR SIGNATURE GUARANTEE) The undersigned, a participant in the Security Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program or the Stock Exchange Medallion Program (each, an "Eligible Institution"), hereby (i) represents that the above-named persons are deemed to own the Old Notes tendered hereby within the meaning of Rule 14e-4 promulgated under the Securities Exchange Act of 1934, as amended ("Rule 14e-4"), (ii) represents that such tender of Old Notes complies with Rule 14e-4 and (iii) guarantees that the Old Notes tendered hereby in proper form for transfer or confirmation of book-entry transfer of such Old Notes into the exchange agent's account at the book-entry transfer facility, in each case together with a properly completed and duly executed Letter of Transmittal (or manually signed facsimile thereof) with any required signature guarantees and any other documents required by the Letter of Transmittal, will be received by the exchange agent at its address set forth above within three business days after the date of execution hereof. The Eligible Institution that completes this form must communicate the guarantee to the exchange agent and must deliver the Letter of Transmittal and Old Notes to the exchange agent within the time period shown herein. Failure to do so could result in a financial loss to such Eligible Institution. Name of Firm: ________________________________________________ ______________________________________________________________ Authorized Signature: ________________________________________ Title: _______________________________________________________ Address: _____________________________________________________ ______________________________________________________________ (Zip Code) Area Code and Telephone Number: ______________________________ -5- EX-99 101 ex99-3.txt EXHIBIT 99.3 EXHIBIT 99.3 GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE PAYER--Social Security Numbers have nine digits separated by two hyphens: i.e., 000-00-0000. Employer Identification Numbers have nine digits separated by only one hyphen: i.e., 00-0000000. The table below will help determine the type of number to give the payer.
GIVE THE GIVE THE EMPLOYER SOCIAL SECURITY IDENTIFICATION FOR THIS TYPE OF ACCOUNT: NUMBER OF-- FOR THIS TYPE OF ACCOUNT: NUMBER OF-- - --------------------------- --------------------------- --------------------------- --------------------------- 1. An individual's account The individual 8. Sole proprietorship The owner (4) account 2. Two or more individuals The actual owner of the 9. A valid trust, estate or The legal entity (Do not (joint account) account or, if combined pension trust furnish the identifying funds, any one of the number of the personal individuals (1) representative or trustee unless the legal entity itself is not designated in the account title) (5) 3. Husband and wife (joint The actual owner of the 10. Corporate account The corporation account) account or, if joint funds, either person (1) 4. Custodian account of a The minor (2) 11. Religious, charitable, The organization minor (Uniform Gift to or educational Minors Act) organization account 5. Adult and minor (joint The adult or, if the minor 12. Partnership account The partnership account) is the only contributor, held in the name of the the minor (1) business 6. Account in the name of The ward, minor, or 13. Association, club, or The organization guardian or committee incompetent person (3) other tax-exempt for a designated ward, organization minor, or incompetent person 7. a. The usual revocable The grantor-trustee (1) 14. A broker or registered The broker or nominee savings trust account nominee (grantor is also trustee) b. So-called trust The actual owner (1) 15. Account with the The public entity account that is not a Department of legal or valid trust Agriculture in the name under State law of a public entity (such as a State or local government, school district, or prison) that receives agricultural program payments
- ------------------------------ (1) List first and circle the name of the person whose number you furnish. (2) Circle the minor's name and furnish the minor's social security number. (3) Circle the ward's, minor's or incompetent person's name and furnish such person's social security number. (4) You must show your individual name, but you may also enter your business or "doing business" name. You may use either your Social Security Number or Employer Identification Number. (5) List first and circle the name of the legal trust, estate, or pension trust. NOTE: If no name is circled when there is more than one name, the number will be considered to be that of the first name listed. GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 OBTAINING A NUMBER If you do not have a taxpayer identification number or if you do not know your number, obtain Form SS-5, Application for Social Security Number Card (for individuals), or Form SS-4, Application for Employer Identification Number, at the local office of the Social Security Administration or the Internal Revenue Service (the "IRS") and apply for a number. PAYEES EXEMPT FROM BACKUP WITHHOLDING Payees specifically exempted from backup withholding on ALL payments by brokers include the following: - A corporation. - A financial institution. - An organization exempt from a tax under Section 501(a), or an individual retirement plan or a custodial account under Section 403(b)(7) if the account satisfies the requirements of Section 401(F)(2). - The United States or any agency or instrumentality thereof. - A State, the District of Columbia, a possession of the United States, or any subdivision or instrumentality thereof. - A foreign government, a political subdivision of a foreign government, or any agency or instrumentality thereof. - An international organization or any agency or instrumentality thereof. - A registered dealer in securities or commodities registered in the U.S. or a possession of the U.S. - A real estate investment trust. - A common trust fund operated by a bank under Section 584(a). - An entity registered at all times under the Investment Company Act of 1940. - A foreign central bank of issue. - A futures commission merchant registered with the Commodity Futures Trading Commission. - A person registered under the Investment Advisors Act of 1940 who regularly acts as a broker. Payments of dividends and patronage dividends not generally subject to backup withholding include the following: - Payments to nonresident aliens subject to withholding under Section 1441. - Payments to partnerships not engaged in a trade or business in the U.S. and which have at least one nonresident partner. - Payments of patronage dividends where the amount received is not paid in money. - Payments made by certain foreign organizations. - Payments made to a nominee. Payments of interest not generally subject to backup withholding include the following: - Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and is paid in the course of the payer's trade or business and you have not provided your correct taxpayer identification number to the payer. - Payments of tax-exempt interest (including exempt-interest dividends under Section 852). - Payments described in Section 6049(b)(5) to nonresident aliens. - Payments on tax-free covenant bonds under Section 1451. -2- - Payments made by certain foreign corporations. - Payments made to a nominee. Exempt payees described above should file Form W-9 to avoid possible erroneous backup withholding. FILE THIS FORM WITH THE PAYER, FURNISH YOUR TAXPAYER IDENTIFICATION NUMBER, CHECK "EXEMPT" IN PART II OF THE FORM, SIGN AND DATE THE FORM AND RETURN IT TO THE PAYER. Certain payments other than interest, dividends, and patronage dividends, that are not subject to information reporting are also not subject to backup withholding. For details, see the regulations under Section 6041, 6041(A)(a), 6045, and 6050A. PRIVACY ACT NOTICE.--Section 6109 requires most recipients of dividend, interest, or other payments to give taxpayer identification numbers to payers who must report the payments to the IRS. The IRS uses the numbers for identification purposes. Payers must be given the numbers whether or not recipients are required to file tax returns. Beginning January 1, 1993, payers must generally withhold 31% of taxable interest, dividend, and certain other payments to a payee who does not furnish a taxpayer identification number to a payer. Certain penalties may also apply. PENALTIES (1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.--If you fail to furnish your taxpayer identification number to a payer, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect. (2) FAILURE TO REPORT CERTAIN DIVIDEND AND INTEREST PAYMENTS.--If you fail to include any portion of an includible payment for interest, dividends, or patronage dividends in gross income, such failure will be treated as being due to negligence and will be subject to a penalty of 5% on any portion of an under-payment attributable to that failure unless there is clear and convincing evidence to the contrary. (3) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you make a false statement with no reasonable basis which results in no imposition of backup withholding, you are subject to a penalty of $500. (4) CRIMINAL PENALTY FOR FALSIFYING INFORMATION.--Falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment. FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE SERVICE. -3- EX-99.4 102 ex99-4.txt EXHIBIT 99.4 EXHIBIT 99.4 FORM OF LETTER TO DTC PARTICIPANTS REGARDING THE OFFER TO EXCHANGE ANY AND ALL OUTSTANDING 6.875% SENIOR NOTES DUE 2012 FOR 6.875% SENIOR NOTES DUE 2012 OF TOLL BROTHERS FINANCE CORP. PURSUANT TO THE PROSPECTUS DATED ___________, 2003 THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ______________, 2003 UNLESS EXTENDED (SUCH TIME AND DATE, AS THE SAME MAY BE EXTENDED FROM TIME TO TIME, THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE. ________________, 2003 To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees: We have been appointed by Toll Brothers Finance Corp. (the "Company"), to act as exchange agent in connection with its offer (the "Exchange Offer") to exchange new 6.875% Senior Notes due 2012 ("Exchange Notes") that have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for all of its outstanding 6.875% Senior Notes due 2012 (the "Old Notes"), upon the terms and subject to the conditions set forth in the prospectus dated __________, 2003 and in the accompanying Letter of Transmittal (the "Letter of Transmittal") which together constitute the Exchange Offer. Capitalized terms used but not defined herein have the respective meanings ascribed to them in the prospectus. Enclosed herewith are copies of the following documents: 1. The prospectus dated ________________, 2003; 2. The Letter of Transmittal for your use and for the information of your clients, together with guidelines of the Internal Revenue Service for Certification of Taxpayer Identification Number on Substitute Form W-9 providing information relating to backup Federal income tax withholding; 3. The Notice of Guaranteed Delivery to be used to accept the Exchange Offer if the Old Notes and all other required documents cannot be delivered to the exchange agent prior to the Expiration Date; 4. A form of letter which may be sent to your clients for whose account you hold Old Notes in your name or in the name of a nominee, with space provided for obtaining such clients' instructions with regard to the Exchange Offer; and 5. A return envelope addressed to the exchange agent. DTC Participants will be able to execute tenders and deliver consents through the DTC Automated Tender Offer Program. PLEASE NOTE THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON _____________, 2003, UNLESS EXTENDED BY THE COMPANY. WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. You will be reimbursed for customary mailing and handling expenses incurred by you in forwarding the enclosed materials to your clients. Additional copies of the enclosed materials may be obtained from the exchange agent, at the address and telephone numbers set forth on the front of the Letter of Transmittal. Very truly yours, BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION ------------------------ NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR ANY OTHER PERSON AS THE AGENT OF THE COMPANY OR THE EXCHANGE AGENT OR AUTHORIZE YOU OR ANY OTHER PERSON TO GIVE ANY INFORMATION OR MAKE ANY REPRESENTATION ON BEHALF OF ANY OF THEM WITH RESPECT TO THE EXCHANGE OFFER NOT CONTAINED IN THE PROSPECTUS OR THE LETTER OF TRANSMITTAL. -2- EX-99.5 103 ex99-5.txt EXHIBIT 99.5 EXHIBIT 99.5 FORM OF LETTER TO BENEFICIAL HOLDERS REGARDING THE OFFER TO EXCHANGE ANY AND ALL OUTSTANDING 6.875% SENIOR NOTES DUE 2012 FOR 6.875% SENIOR NOTES DUE 2012 OF TOLL BROTHERS FINANCE CORP. PURSUANT TO THE PROSPECTUS DATED ________, 2003 THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON _______________, 2003 UNLESS EXTENDED (SUCH TIME AND DATE, AS THE SAME MAY BE EXTENDED FROM TIME TO TIME, THE "EXPIRATION DATE"). TENDERS MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE. ______________, 2003 To Our Clients: Enclosed for your consideration is the prospectus dated __________, 2003 and the accompanying Letter of Transmittal (the "Letter of Transmittal") that together constitute the offer (the "Exchange Offer") by Toll Brothers Finance Corp. (the "Company"), to exchange new 6.875% Senior Notes due 2012 ("Exchange Notes") that have been registered under the Securities Act of 1933, as amended (the "Securities Act"), for all of its outstanding 6.875% Senior Notes due 2012 (the "Old Notes"), upon the terms and subject to the conditions set forth in the prospectus. The prospectus and the Letter of Transmittal more fully describe the Exchange Offer. Capitalized terms used but not defined herein have the respective meanings ascribed to them in the prospectus. To participate in the Exchange Offer, persons in whose names Old Notes are registered on the books of the registrar ("Registered Holders") must either: - cause to be delivered to Bank One Trust Company, National Association (the "Exchange Agent"), at the address set forth in the Letter of Transmittal, Old Notes in proper form for transfer, together with a properly executed Letter of Transmittal; or - cause a DTC Participant to tender such holder's Old Notes to the Exchange Agent's account maintained at the Depository Trust Company ("DTC") for the benefit of the Exchange Agent through the DTC's Automated Tender Offer Program ("ATOP"), including transmission of an agent's message in which the Registered Holder acknowledges and agrees to be bound by the terms of the Letter of Transmittal. By complying with DTC's ATOP procedures with respect to the Exchange Offer, the DTC Participant confirms on behalf of itself and the beneficial owners of tendered Old Notes all provisions of the Letter of Transmittal applicable to it and such beneficial owners as fully as if it completed, executed and returned the Letter of Transmittal to the Exchange Agent. We are the holder of Old Notes held for your account. A TENDER OF SUCH OLD NOTES CAN BE MADE ONLY BY US AS THE HOLDER FOR YOUR ACCOUNT AND PURSUANT TO YOUR INSTRUCTIONS. THE ENCLOSED LETTER OF TRANSMITTAL IS FURNISHED TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED TO TENDER OLD NOTES. We request instructions as to whether you wish to tender any or all of the Old Notes held by us for your account, pursuant to the terms and subject to the conditions set forth in the prospectus and the Letter of Transmittal. Your instructions to us should be forwarded as promptly as possible in order to permit us to tender your Old Notes on your behalf in accordance with the provisions of the prospectus and the Letter of Transmittal. THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON _______________, 2003, UNLESS EXTENDED BY THE COMPANY. Old Notes properly tendered may be withdrawn at any time prior to the Expiration Date. The Exchange Offer is not conditioned upon any minimum number of Old Notes being tendered. Pursuant to the Letter of Transmittal, each holder of Old Notes must represent to the Company that: - the Exchange Notes to be acquired by such holder pursuant to the Exchange Offer are being acquired in the ordinary course of business of the holder; - such holder is not participating, does not intend to participate, and has no arrangement or understanding with any person to participate, in the distribution of the Exchange Notes; - such holder is not an "affiliate," as defined under Rule 405 of the Securities Act, of the Company; - such holder acknowledges that any person who is a broker-dealer registered under the Securities Exchange Act of 1934, as amended, or who tenders Old Notes in the Exchange Offer for the purpose of participating in a distribution of the Exchange Notes must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction and cannot rely on the position of the staff of the Securities and Exchange Commission enunciated in its series of interpretive "no-action" letters with respect to exchange offers; -2- - if the holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Old Notes, it must represent that the Old Notes to be exchanged for Exchange Notes were acquired as a result of market-making activities or other trading activities and must acknowledge that it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of Exchange Notes received in respect of such Old Notes pursuant to the Exchange Offer; however, by so acknowledging and by delivering a prospectus, the holder will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act; and - if the holder is not a broker-dealer, it must represent that it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes. The enclosed "Instruction to Registered Holder or DTC Participant from Beneficial Owner" form contains an authorization by you, as the beneficial owner of Old Notes, for us to make the foregoing representations on your behalf. We urge you to read the enclosed Letter of Transmittal in conjunction with the Exchange Offer carefully before instructing us to tender your Old Notes. Your attention is directed to the following: 1. The Exchange Offer is described in and subject to the terms and conditions set forth in the prospectus dated ______________, 2003. 2. Subject to the terms and conditions of the Exchange Offer, the Company will accept for exchange on the Expiration Date all Old Notes properly tendered and will issue Exchange Notes promptly after such acceptance. 3. If you desire to tender any Old Notes pursuant to the Exchange Offer, we must receive your instructions in ample time to permit us to effect a tender of the Old Notes on your behalf prior to the Expiration Date. 4. Any brokerage fees, commissions or transfer taxes will be borne by the Company, except as otherwise provided in Instruction 7 of the Letter of Transmittal. If you wish to tender any or all of the Old Notes held by us for your account, please so instruct us by completing, executing, detaching and returning to us the instruction form attached hereto. If you authorize the tender of your Old Notes, all such Old Notes will be tendered unless otherwise specified on the instruction form. Your instructions should be forwarded to us in ample time to permit us to submit a tender on your behalf on or prior to the Expiration Date. The specimen Letter of Transmittal is furnished to you for your information only and cannot be used by you to tender Old Notes held by us for your account. The Company is not aware of any jurisdiction in which the making of the Exchange Offer or the tender of Old Notes in connection therewith would not be in compliance with the laws of such jurisdiction. If the Company becomes aware of any jurisdiction in which the making of the Exchange Offer would not be in compliance with such laws, the Company will make a good faith effort to comply -3- with any such laws or seek to have such laws declared inapplicable to the Exchange Offer. If, after such good faith effort, the Company cannot comply with any such laws, the Exchange Offer will not be made to the Registered Holders residing in such jurisdiction. -4- INSTRUCTIONS TO REGISTERED HOLDER OR DTC PARTICIPANT FROM BENEFICIAL OWNER OF 6.875% SENIOR NOTES DUE 2012 OF TOLL BROTHERS FINANCE CORP. The undersigned hereby acknowledges receipt of the prospectus dated __________, 2003 of Toll Brothers Finance Corp. (the "Company") and the accompanying Letter of Transmittal, that together constitute the Company's offer (the "Exchange Offer"). This will instruct you, the registered holder, as to the action to be taken by you relating to the Exchange Offer with respect to the 6.875% Senior Notes due 2012 (the "Old Notes") held by you for the account of the undersigned, on the terms and subject to the conditions in the prospectus and Letter of Transmittal. The aggregate face amount of the Old Notes held by you for the account of the undersigned is (fill in the amount): $______________ of the Old Notes. With respect to the Exchange Offer, the undersigned hereby instructs you (check appropriate box): / / To TENDER the following Old Notes held by you for the account of the undersigned (insert principal amount of Old Notes to be tendered, if any): $______________ of the Old Notes. / / NOT to TENDER any Old Notes held by you for the account of the undersigned. If the undersigned instructs you to tender the Old Notes held by you for the account of the undersigned, it is understood that you are authorized: - to make, on behalf of the undersigned (and the undersigned, by its signature below, hereby makes to you), the representations and warranties contained in the Letter of Transmittal that are to be made with respect to the undersigned as a beneficial owner of the Old Notes, including but not limited to the representations that: - the undersigned is acquiring the Exchange Notes in the ordinary course of business of the undersigned; -5- - the undersigned is not participating, does not intend to participate, and has no arrangement or understanding with any person to participate, in the distribution of the Exchange Notes; - the undersigned is not an "affiliate," as defined under Rule 405 of the Securities Act of 1933, as amended (the "Securities Act"), of the Company; - the undersigned acknowledges that any person who is a broker-dealer registered under the Securities Exchange Act of 1934, as amended, or is participating in the Exchange Offer for the purpose of distributing the Exchange Notes must comply with the registration and prospectus delivery requirements of the Securities Act, in connection with a secondary resale transaction of the Exchange Notes acquired by such person and cannot rely on the position of the staff of the Securities and Exchange Commission enunciated in its series of interpretative no-action letters with respect to exchange offers; - if the undersigned is a broker-dealer that will receive Exchange Notes for its own account in exchange for Old Notes, it represents that the Old Notes to be exchanged for the Exchange Notes were acquired by it as a result of market-making activities or other trading activities and acknowledges that it will deliver a prospectus in connection with any resale of such Exchange Notes; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act; and' - if the undersigned is not a broker-dealer, the undersigned represents that it is not engaged in, and does not intend to engage in, a distribution of the Exchange Notes; and - to agree, on behalf of the undersigned, as set forth in the Letter of Transmittal; and - to take such other action as necessary under the prospectus or the Letter of Transmittal to effect the valid tender of Old Notes. -6- SIGN HERE Name of Beneficial Owner(s):____________________________________________________ ________________________________________________________________________________ Signature(s):___________________________________________________________________ Name(s) (please print):_________________________________________________________ ________________________________________________________________________________ Address:________________________________________________________________________ ________________________________________________________________________________ Telephone Number(s):____________________________________________________________ ________________________________________________________________________________ Taxpayer Identification or Social Security Number(s):___________________________ ________________________________________________________________________________ Date: __________________________________________________________________________ -7- EX-99 104 ex99-6.txt EXHIBIT 99.6 Exhibit 99.6 EXCHANGE AGENT AGREEMENT THIS EXCHANGE AGENT AGREEMENT (this "Agreement") is made and entered into as of June __, 2003, by and among Toll Brothers Finance Corp., a Delaware corporation ("Issuer"), Toll Brothers, Inc., a Delaware corporation ("Guarantor"), and Bank One Trust Company, N.A., a national banking association, as exchange agent ("Exchange Agent"). RECITALS Issuer proposes to make an offer to exchange, upon the terms and subject to the conditions set forth in its Prospectus dated June __, 2003 (the "Offering Document") and the accompanying letter of transmittal (the "Letter of Transmittal"), forms of which are attached hereto as Exhibit A and Exhibit B (and which, taken together, constitute the "Exchange Offer"), the Issuer's outstanding 6.875% Senior Notes due 2012 (CUSIP No. 889478AD5) (the "Old Notes") for up to U.S.$300,000,000 of Issuer's 6.875% Senior Notes due 2012 (the "Exchange Notes" and, together with the Old Notes, the "Notes"). The Exchange Offer will commence as soon as practicable after the Issuer's Registration Statement on Form S-4 relating to the Exchange Offer is declared effective under the Securities Act of 1933, as certified in writing to Exchange Agent by the Issuer (the "Commencement Date") and shall terminate at 5:00 p.m., New York City time, on _________, 2003 (the "Expiration Date"). Subject to the terms and conditions set forth in the Prospectus, the Issuer expressly reserves the right to extend the Exchange Offer from time to time and may extend the Exchange Offer by giving oral, promptly confirmed in writing, or written notice before 9:00 a.m., New York City time, on the business day following the previously scheduled Expiration Date, in which case, the term "Expiration Date" shall mean the latest date and time to which the Exchange Offer is extended. 1. Appointment and Duties as Exchange Agent ---------------------------------------- Issuer hereby authorizes Bank One Trust Company, N.A., to act as Exchange Agent in connection with the Exchange Offer, and Bank One Trust Company, N.A., hereby agrees to act as Exchange Agent and to perform the services outlined herein in connection with the Exchange Offer on the terms and conditions contained herein. 2. Mailing ------- A. As soon as practicable after its receipt of certification from the Issuer as to the Commencement Date, Exchange Agent will mail to each registered holder of Old Notes, and to other persons as directed in writing by Issuer (each a "Holder" and collectively, the "Holders") (i) a Letter of Transmittal with instructions (including instructions for completing a substitute Form W-9), (ii) the Offering Document and (iii) a Notice of Guaranteed Delivery substantially in the form attached hereto as Exhibit C (the "Notice of Guaranteed Delivery"), all in accordance with the procedures described in the Offering Document. B. Issuer shall supply Exchange Agent with sufficient copies of the materials described in Paragraph 2.A above to enable Exchange Agent to perform its duties hereunder. 3. ATOP Registration ----------------- As soon as practicable, Exchange Agent shall establish an account with DTC in its name to facilitate book-entry tenders of Old Notes through DTC's Automated Tender Offer Program ("ATOP") for the Exchange Offer. 4. Receipt of Letters of Transmittal and Related Items --------------------------------------------------- From and after the Commencement, Exchange Agent is hereby authorized and directed to accept (i) Letters of Transmittal, duly executed in accordance with the instructions thereto (or a manually signed facsimile thereof), and any requisite collateral documents from owners of beneficial interests in the Old Notes ("Beneficial Owners") and (ii) surrendered Old Notes to which such Letters of Transmittal relate. Exchange Agent is authorized to request from Beneficial Owners tendering Old Notes such additional documents as Exchange Agent or Issuer deems appropriate. Exchange Agent is hereby authorized and directed to process withdrawals of tenders to the extent withdrawal thereof is permitted by the Exchange Offer. 5. Defective or Deficient Old Notes and Instruments ------------------------------------------------ A. As soon as practicable after receipt, Exchange Agent will examine instructions transmitted by DTC ("DTC Transmissions"), Old Notes, Letters of Transmittal and other documents received by Exchange Agent in connection with tenders of Old Notes to ascertain whether (i) the Letters of Transmittal are completed and executed in accordance with the instructions set forth therein (or that the DTC Transmissions contain the proper information required to be set forth therein), (ii) the Old Notes have otherwise been properly tendered in accordance with the Offering Document and the Letters of Transmittal (or that book-entry confirmations are in due and proper form and contain the information required to be set forth therein) and (iii) if applicable, the other documents are properly completed and executed. Alternative, conditional or contingent tenders will not be considered valid, unless otherwise agreed with the Issuer. B. If any Letter of Transmittal or other document has been improperly completed or executed (or any DTC Transmissions are not in due and proper form or omit required information) or the Old Notes accompanying such Letter of Transmittal are not in proper form for transfer or have been improperly tendered (or the book-entry confirmations are not in due and proper form or omit required information) or if some other irregularity in connection with any tender of any Old Notes exists, Exchange Agent shall promptly report such information to the tendering party. If such condition is not promptly remedied, Exchange Agent shall report such condition to Issuer and await Issuer's direction. All questions as to the validity, form, eligibility (including timeliness of receipt), acceptance and withdrawal of any Old Notes tendered or delivered shall be determined by Issuer, in its sole discretion. Notwithstanding the above, Exchange Agent shall not incur any liability for failure to give such notification unless such failure constitutes negligence, bad faith or willful misconduct. C. Issuer reserves the absolute right (i) to reject any or all tenders of any particular Old Notes determined by Issuer not to be properly tendered or the acceptance or exchange of which may, in the opinion of Issuer or the Issuer's counsel, be unlawful and (ii) to waive any of the conditions of the 2 Exchange Offer or any defect or irregularity in the tender of any particular Old Notes, and Issuer's interpretation of the terms and conditions of the Exchange Offer (including the Letter of Transmittal and the instructions set forth therein) will be final and binding. 6. Requirements of Tenders ----------------------- A. Tenders of Old Notes shall be made only as set forth in the Letter of Transmittal, and shall be considered properly tendered only when tendered in accordance therewith. Notwithstanding the provisions of this paragraph, any Old Notes that the Chairman, President, Chief Financial Officer, General Counsel or Chief Accounting Officer of Guarantor, authorized representatives of Issuer, shall approve as having been properly tendered shall be considered to be properly tendered. B. Exchange Agent shall (i) ensure that each Letter of Transmittal and the related Old Notes or a bond power are duly executed (with signatures guaranteed where required) by the appropriate parties in accordance with the terms of the Exchange Offer; (ii) in those instances where the person executing the Letter of Transmittal (as indicated on the Letter of Transmittal) is acting in a fiduciary or a representative capacity, ensure that proper evidence of his or her authority so to act is submitted; and (iii) in those instances where the Old Notes are tendered by persons other than the Holder of such Old Notes, ensure that customary transfer requirements, including any applicable transfer taxes, and the requirements imposed by the transfer restrictions on the Old Notes (including any applicable requirements for certifications, legal opinions or other information) are fulfilled. 7. Exchange of the Old Notes ------------------------- A. Promptly after the Expiration Date and authentication of the Exchange Notes by the trustee under the indenture governing the Exchange Notes, Issuer will deliver the Exchange Notes to Exchange Agent. Upon surrender of the Old Notes properly tendered and acceptance thereof by Issuer in accordance with the Exchange Offer, Exchange Agent is hereby directed to deliver or cause to be delivered Exchange Notes to the Holder of such surrendered and accepted Old Notes. The principal amount of the Exchange Notes to be delivered to a Holder shall equal the principal amount of the Old Notes surrendered by such Holder and accepted. B. The Exchange Notes issued in exchange for certificated Old Notes shall be mailed by Exchange Agent, in accordance with the instructions contained in the Letter of Transmittal, by first class or registered mail, and under coverage of Exchange Agent's blanket surety bond for first class or registered mail losses protecting Issuer from loss or liability arising out of the non-receipt or non-delivery of such Exchange Notes or the replacement thereof. The Exchange Notes issued in exchange for Old Notes in global book-entry form shall be delivered in book-entry form through the facilities of DTC. C. Notwithstanding any other provision of this Agreement, issuance of the Exchange Notes for accepted Old Notes pursuant to the Exchange Offer shall be made only after deposit with Exchange Agent of the Old Notes, the related Letter of Transmittal and any other required documents. 3 8. Exchange Notes Held in Trust ---------------------------- The Exchange Notes and any cash or other property (the "Property") deposited with or received by Exchange Agent (in such capacity) from Issuer shall be held in a segregated account, solely for the benefit of Issuer and Holders tendering Old Notes, as their interests may appear, and the Property shall not be commingled with securities, money, assets or property of Exchange Agent or any other party. 9. Reports to Issuer ----------------- Exchange Agent shall regularly notify, by facsimile or electronic communication, Issuer as to the principal amount of the Old Notes which have been duly tendered since the previous report and the aggregate amount tendered since the Commencement Date daily until the Expiration Date; provided, however, that if, during any particular day, no additional Old Notes have been tendered, no additional items have been received by Exchange Agent and such totals have not changed since the Exchange Agent last provided such information as required above, the Exchange Agent need not provide the information referred to above in this Section 9 for such day. Such notice shall be delivered in substantially the form set forth as Exhibit D. 10. Record Keeping -------------- Each Letter of Transmittal, Old Note and any other documents received by Exchange Agent in connection with the Exchange Offer shall be stamped by Exchange Agent to show the date of receipt (or if Old Notes are tendered by book-entry delivery, such form of record keeping of receipt as is customary for tenders through ATOP) and, if defective, the date and time the last defect was cured or waived by Issuer. Exchange Agent shall cancel any certificated Old Notes tendered in the Exchange Offer only following (i) their acceptance and (ii) the issuance of the Exchange Notes in exchange for those Old Notes. Exchange Agent shall retain all Old Notes and Letters of Transmittal and other related documents or correspondence received by Exchange Agent until the Expiration Date. Exchange Agent shall return all such material to Issuer as soon as practicable after the Expiration Date. If Exchange Agent receives any Letters of Transmittal after the Expiration Date, Exchange Agent shall return the same together with all enclosures to the party from whom such documents were received. 11. Discrepancies or Questions -------------------------- Any discrepancies or questions regarding any Letter of Transmittal, Old Note, notice of withdrawal or any other documents received by Exchange Agent in connection with the Exchange Offer shall be referred to Issuer, and Exchange Agent shall have no further duty with respect to such matter; provided that Exchange Agent shall cooperate with Issuer in attempting to resolve such discrepancies or questions. 12. Transfer of Registration ------------------------ Exchange Notes may be registered in a name other than that of the Holder of a surrendered Old Note, if and only if (i) the Old Note is (a) endorsed or accompanied by written instrument of transfer; (b) duly executed by the Holder; and (c) the signature on the endorsement or instrument of transfer is guaranteed by an Eligible Institution, as defined in the Letter of 4 Transmittal, (ii) the person requesting such transfer of registration shall pay (or shall be billed directly for such transfer taxes) to Exchange Agent any transfer or other taxes required, or shall establish to Exchange Agent's satisfaction that such tax is not owed or has been paid and (iii) such other documents and instruments as Issuer or Exchange Agent require shall be received by Exchange Agent. 13. Partial Tenders --------------- If, pursuant to the Exchange Offer, less than all of the principal amount of any Old Note submitted to Exchange Agent is tendered, Exchange Agent shall, promptly after the Expiration Date, return, or cause the registrar with respect to each such Old Note to return, a new Old Note for the principal amount not being tendered to, or in accordance with the instruction of, the Holder who has made a partial tender, provided that tenders of Old Notes shall be accepted only in integral multiples of US$1,000. 14. Withdrawals ----------- A tendering Holder may withdraw tendered Old Notes as set forth in the Offering Document, in which event Exchange Agent shall, after proper notification of such withdrawal, return such Old Notes to, or in accordance with the instructions of, such Beneficial Owner and such Old Notes shall no longer be considered properly tendered. Any withdrawn Old Notes may be tendered again by following the procedures therefor described in the Offering Document at any time on or prior to the Expiration Date. 15. Rejection of Tenders -------------------- If, pursuant to the Exchange Offer, Issuer does not accept for exchange all of the Old Notes tendered by a Holder of Old Notes, Exchange Agent shall return or cause to be returned such Old Notes to, such Holder of Old Notes. 16. Cancellation of Exchanged Old Notes ----------------------------------- Exchange Agent is authorized and directed to cancel all Old Notes received by it upon delivering the Exchange Notes to tendering Holders of the Old Notes as provided herein. Exchange Agent shall maintain a record as to which Old Notes have been exchanged pursuant to Section 7 hereof. 17. Requests for Information ------------------------ Exchange Agent shall accept and comply with telephone, e-mail and mail requests for information from any Holder concerning the proper procedure to tender Old Notes. Exchange Agent shall provide copies of the Offering Document and Letter of Transmittal to any party upon request. All other requests for information shall be referred to Joseph R. Sicree, Chief Accounting Officer. Exchange Agent shall not offer any concessions or pay any commissions or solicitation fees to any brokers, dealers, banks or other persons or engage any persons to solicit tenders. 5 18. Tax Matters ----------- Exchange Agent shall file with the Internal Revenue Service and send to Holders Form 1099 reports regarding principal and interest payments on Old Notes which Exchange Agent has made in connection with the Exchange Offer, if any. Any questions with respect to any tax matters relating to the Exchange Offer shall be referred to Issuer, and Exchange Agent shall have no duty with respect to any such matter; provided that Exchange Agent shall cooperate with Issuer in attempting to resolve such questions. 19. Reports ------- Within five (5) days after the Expiration Date, Exchange Agent shall furnish Issuer a final report showing the disposition of the Exchange Notes. 20. Fees and Expenses ----------------- Issuer will pay Exchange Agent its reasonable fees and expenses, including reasonable counsel fees and disbursements, as set forth in Exhibit E. 21. Concerning Exchange Agent ------------------------- As exchange agent hereunder, Exchange Agent: A. shall have no duties or obligations other than those specifically set forth in this Agreement or as may be subsequently agreed upon in writing by the Issuer and the Exchange Agent; B. will make no representation and will have no responsibility as to the validity, value or genuineness of the Exchange Offer, shall not make any recommendation as to whether a Beneficial Owner of Old Notes should or should not tender its Old Notes and shall not solicit any Beneficial Owner for the purpose of causing such Beneficial Owner to tender its Old Notes; C. shall not be obligated to take any action hereunder which may, in Exchange Agent's sole judgment, involve any expense or liability to Exchange Agent unless it shall have been furnished with indemnity against such expense or liability which, in Exchange Agent's reasonable judgment, is adequate; D. may rely on and shall be protected in acting upon any certificate, instrument, opinion, notice, instruction, letter, telegram or other document, or any security, delivered to Exchange Agent and reasonably believed by Exchange Agent to be genuine and to have been signed by the proper party or parties; E. may reasonably rely on and shall be protected in acting upon the written instructions of Issuer (or its authorized representatives) or its counsel; F. shall not be liable for any claim, loss, liability or expense, incurred without Exchange Agent's negligence, bad faith or willful misconduct, arising out of or in connection with the administration of Exchange Agent's duties hereunder; and 6 G. may consult with counsel reasonably acceptable to Issuer and the advice of such counsel or any opinion of counsel shall be full and complete authorization and protection in respect of any action reasonably taken, suffered or omitted by Exchange Agent hereunder in accordance with the advice of such counsel or any opinion of counsel. 22. Indemnification --------------- A. Issuer and Guarantor, jointly and severally, covenant and agree to indemnify and hold harmless Exchange Agent, its directors, officers, employees and agents (the "Indemnified Persons") against any and all losses, damages, costs or expenses (including reasonable attorneys' fees and court costs), arising out of or attributable to its performance as Exchange Agent hereunder, provided that such indemnification shall not apply to losses, damages, costs or expenses incurred due to negligence, bad faith or willful misconduct of Exchange Agent, or Exchange Agent's breach of this Agreement. Exchange Agent shall notify Issuer and Guarantor in writing of any asserted claim against Exchange Agent or of any other action commenced against Exchange Agent, reasonably promptly after Exchange Agent shall have received any notice of such claim or shall have been served with a summons in connection therewith. The Issuer and the Guarantor shall be entitled to participate at their own expense in the defense of any such claim or other action and, if the Issuer and Guarantor so elect, the Issuer and the Guarantor shall assume the defense of any suit brought to enforce any such claim. In the event that the Issuer and the Guarantor shall assume the defense of any such suit, the Issuer and the Guarantor shall not be liable for the fees and expenses of any additional counsel thereafter retained by the Exchange Agent, so long as the Issuer and the Guarantor shall retain counsel reasonably satisfactory to Exchange Agent to defend such suit, and so long as the Exchange Agent has not determined, in its reasonable judgment, that a conflict of interest exists between the Exchange Agent and the Issuer and the Guarantor. B. Exchange Agent agrees that, without the prior written consent of Issuer and Guarantor, it will not settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification could be sought in accordance with the indemnification provision of this Agreement (whether or not any Indemnified Persons is an actual or potential party to such claim, action or proceeding). 23. Applicable Law -------------- This Agreement shall be construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of laws principles and the parties consent to the jurisdiction of the courts of the State of New York in the Borough of Manhattan any action brought to enforce any rights under this Agreement. 24. Notices ------- Notices or other communications pursuant to this Agreement shall be delivered by facsimile transmission, reliable overnight courier or by first-class mail, postage prepaid, addressed as follows: 7 To Issuer at: Toll Brothers Finance Corp. 3103 Philmont Avenue Huntingdon Valley, Pennsylvania 19006-4298 Attention: Chief Accounting Officer Facsimile: (215) 938-8422 Or to Exchange Agent at: Bank One Trust Company, N.A. 1111 Polaris Parkway, Suite N1-OH1-0184 Columbus, Ohio 43240 Attention: Exchanges Facsimile: (614) 248-9987 Or to such address as any party shall provide by notice to the other parties. 25. Change of Exchange Agent ------------------------ Exchange Agent may resign from its duties under this Agreement by giving to Issuer and Guarantor thirty (30) days prior written notice. If Exchange Agent resigns or becomes incapable of acting as Exchange Agent and Issuer fails to appoint a new exchange agent within a period of thirty (30) days after it has been notified in writing of such resignation or incapacity by Exchange Agent, Issuer shall appoint a successor exchange agent or assume all of the duties and responsibilities of Exchange Agent. Any successor exchange agent shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named as Exchange Agent without any further act or deed; but Exchange Agent shall deliver and transfer to the successor exchange agent any Property at the time held by it hereunder, and execute and deliver any further assurance, conveyance, act or deed necessary for such purpose. 26. Miscellaneous ------------- No party may transfer or assign its rights or responsibilities under this Agreement without the written consent of the other party hereto; provided, however, that Exchange Agent may transfer and assign its rights and responsibilities hereunder to any of its affiliates reasonably acceptable to Issuer and Guarantor and otherwise eligible to act as Exchange Agent and, upon reasonable prior notice to Exchange Agent, Issuer and Guarantor may transfer and assign its rights and responsibilities hereunder to any successor by merger or consolidation, any purchaser of all or substantially all of the common stock of Issuer or Guarantor (as applicable), or any purchaser of all or substantially all of Issuer's or Guarantor's assets (as applicable). This Agreement may be amended only in writing signed by each of the parties hereto. Any Exchange Notes which remain undistributed after the Expiration Date shall be cancelled and delivered to Issuer upon demand, and any Old Notes which are tendered thereafter shall be promptly returned by Exchange Agent to the tendering party. Except for Sections 20 and 22, this Agreement shall terminate on the 31st day after the Expiration Date. 8 27. Parties in Interest ------------------- This Agreement shall be binding upon and inure solely to the benefit of each party hereto and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefits or remedy of any nature whatsoever under or by reason of this Agreement. Without limitation to the foregoing, the parties hereto expressly agree that no Holder or Beneficial Owner shall have any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. 28. Entire Agreement; Headings -------------------------- This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. 29. Counterparts ------------ This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of such counterparts together shall constitute one and the same instrument. 9 IN WITNESS WHEREOF, Issuer, Guarantor, and Exchange Agent have caused this Agreement to be signed by their respective officers thereunto authorized as of the date first written above. TOLL BROTHERS FINANCE CORP. By: ----------------------------- Name: Title: TOLL BROTHERS, INC. By: ------------------------------ Name: Title: BANK ONE TRUST COMPANY, N.A., as Exchange Agent By: ----------------------------- Name: Title: 10 Exhibit E Schedule of Fees Per letter of transmittal mailed or processed: US$150.00 Minimum fee: US$5,000.00 Extraordinary services and special requests: by appraisal Reasonable out of pocket expenses incurred will be billed for reimbursement at invoiced cost The minimum fee of $5,000.00 shall be due and payable upon execution of the Exchange Agent Agreement. The remaining balance shall be due and payable upon receipt of Exchange Agent's invoice therefor. -----END PRIVACY-ENHANCED MESSAGE-----