EX-3 13 ex3-116.txt EXHIBIT 3.116 Exhibit 3.116 LIMITED LIABILITY COMPANY OPERATING AGREEMENT OF TOLL PLAZA, LLC This Limited Liability Company Operating Agreement (the "Agreement") is entered into as of the 28th day of August, 2003 by TOLL PHILMONT CORPORATION, a Delaware corporation ("SOLE MEMBER"). WHEREAS, TOLL PLAZA, LLC (the "Company") was formed on August 28, 2003, upon the filing of its Certificate of Organization (the "Certificate") with the Department of State of the Commonwealth of Pennsylvania. NOW THEREFORE, SOLE MEMBER by execution of this Agreement, hereby continues the Company as a limited liability company pursuant to the Limited Liability Company Law of 1994 of the Commonwealth of Pennsylvania, as amended from time to time (the "Act"), upon the following terms and conditions. 1. Name. The name of the limited liability company is TOLL PLAZA, LLC. 2. Purpose. The purpose for which the Company is organized is limited solely to (A) being the sole general partner of Toll Plaza, LP, a Pennsylvania limited partnership (the "Partnership"), (B) acting as, and exercising all of the authority of, the general partner of the Partnership, and (C) transacting any and all lawful business for which a limited liability company may be organized under the laws of the Commonwealth of Pennsylvania that is incident, necessary and appropriate to accomplishing the foregoing. 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, but at all times subject to the limitations and requirements set forth in the Certificate (which are incorporated herein as though fully set forth), 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. Without limiting the foregoing, the Company is hereby specifically authorized to enter into the transactions and to perform all of the undertakings set forth on Exhibit D attached to this Agreement, and the Managers or the appropriate Officers of the Company are hereby authorized to execute and deliver all contracts, certificates, agreements, instruments and other documents on behalf of the Company as shall be necessary or convenient therefor. 5. Registered Office. The address of the registered office of the Company in the Commonwealth of Pennsylvania is 3103 Philmont Avenue, Huntingdon Valley, PA 19006. 6. Registered Agent. The name and address of the registered agent of the Company for service of process on the Company in the Commonwealth of Pennsylvania is 3103 Philmont Avenue, Huntingdon Valley, PA 19006. 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 Robert I. Toll, Zvi Barzilay and Joel H. Rassman 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 or at the head of 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. 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. 3 14. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, 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; provided, however, that for so long as the Loan remains outstanding the provisions specified in paragraphs 2, 15, 16, 17 and 18 of this Agreement shall not be amended without approval of such amendment by the Lender. Lender may condition its approval on obtaining, at Borrower's cost and expense, a confirmation from each of the applicable rating agencies that such amendment would not result in the qualification, withdrawal or downgrade of any securities rating. For purposes of this Agreement: "Lender" means LaSalle Bank National Association, a national banking association, formerly known as LaSalle National Bank, as Trustee for the registered holders of the Morgan Stanley Capital I, Inc., Commercial Mortgage Pass-Through Certificates, Series 1999-RM1, together with its successors and/or assigns; "Loan" means a certain loan in the original principal sum of $800,000.00, currently held by Lender, secured by a mortgage upon certain premises located with an address at 2755 Philmont Avenue, Huntington Valley, Montgomery County, Pennsylvania; and "Loan Documents" means, collectively, the documents evidencing or securing the Loan. 16. Incorporation of Certificate. The terms and conditions specified in the Certificate of Organization of the Company, a copy of which is attached hereto as Exhibit C, are incorporated herein by reference and shall be a part of this Agreement. 17. Continuation of the Company. If there is a death, dissolution or other "termination event" for any member of the Company, the vote of a majority in interest of the remaining members shall be sufficient to continue the life of the Company. 18. Unanimous Consent Required for Certain Acts. Notwithstanding any provisions to the contrary contained herein, so long as the Loan remains outstanding, the unanimous consent of all members shall be required for the Company to do any of the following or cause the Partnership to do any of the following: a. File or consent to the filing of any bankruptcy, insolvency or reorganization case or proceeding; institute any proceedings under any applicable insolvency law or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally; b. Seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for the Company or a substantial portion of its properties; c. Make any assignment for the benefit of the Company's creditors; or d. Take any action in furtherance of any of the foregoing. 4 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. TOLL PHILMONT CORPORATION, a Delaware corporation By: Mark J. Warshauer ------------------------ Name: Mark J. Warshauer Title: Vice President 5 EXHIBIT A --------- NAME AND MAILING ADDRESS OF SOLE MEMBER
SOLE MEMBER Address ----------- ------- Toll Philmont Corporation 3103 Philmont Avenue, Huntingdon Valley, PA 19006
EXHIBIT B --------- OFFICER LIST
Chairman of the Board Robert I. Toll President, Chief Operating Officer Zvi Barzilay and Assistant Secretary Executive Vice President, Treasurer, Chief Financial Officer Joel H. Rassman and Assistant Secretary First Senior Vice President Wayne S. Patterson Senior Vice Presidents Thomas A. Argyris, Jr. James W. Boyd Barry A. Depew G. Cory DeSpain Richard T. Hartman Werner Thiessen Edward D. Weber Douglas C. Yearley, Jr. Senior Vice President, General Counsel Kenneth J. Gary and Assistant Secretary Vice President, Chief Accounting Officer Joseph R. Sicree and Assistant Secretary Vice President, Controller Kevin J. McMaster and Assistant Secretary First Vice President and Secretary Michael I. Snyder Vice Presidents Peter Alles J. Michael Donnelly Keith Anderson Jonathan C. Downs Thomas Anhut Kevin D. Duermit William J. Bestimt John P. Elcano Ronald Blum Evan G. Ernest Charles W. Bowie Alan Euvrard Paul Bruckardt Augustine P. Flores Roger A. Brush Robert B. Fuller Scott L. Coleman Christopher Gaffney Frederick N. Cooper Patrick Galligan Perry J. Devlin Jed Gibson William J. Gilligan Walter Nowak John D. Harris Joseph J. Palka Douglas C. Heppe Michael J. Palmer John Jakominich Daniel O'Brien Benjamin D. Jogodnik John Pagenkopf Robert A. Johnson Jon Payntor Gregory Kamedulski Robert Parahus Gregory Kelleher William D. Perry Webb A. Koschene Ralph E. Reinert B. Mitchell Kotler William C. Reilly Gary Lemon David Richey Manfred P. Marotta David K. Sadler Gary M. Mayo Douglas C. Shipe James Majewski, Jr. James A. Smith John G. Mangano Ronnie E. Snyder Marc F. McAlpine Michael Sosinski Kira McCarron Steven A. Turbyfill Robert N. McCarron Philip M. Turner Richard C. McCormick Christopher Utschig Richard Miller Steven W. Walker Charles E. Moscony, Jr. Mark J. Warshauer Thomas J. Murray
Assistant Vice Presidents David Anderson Brad Nelson Robert Babyok Richard Nelson Leanne Barbosa Michael Noles Daniel Brouillette Michael O'Hara Anthony Casapulla Edward Oliu Sandy Colden Joseph Pease Robert Craig Charles Raddatz Mark Culichia Byron Rimmer Michael Davenport Anthony Rocco Paul Eberz Gary Rosmarin Robert Frakes Robert Schoonmaker Michael Glenn Seth Shapiro Charles Hare John Smith Paul S. Hare Ronnie E. Snyder Gordon Ivascu Andrew Stern Robert Kardos John Szakats Daniel Kennedy Ken Thirtyacre Steven Krasoff Alan Truitt