Exhibit 3.114
TOLL XXXXXX XX
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
This Amended and Restated Limited Partnership Agreement (the
"Agreement") is made as of this 13th day of January, 2004 by and among the
undersigned parties (the "Partners") in accordance with the New Jersey Uniform
Limited Partnership Law, New Jersey Statutes Annotated, Title 42, Chapter 2A
(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 Toll Xxxxxx XX, 0000 Xxxxxxxx
Xxxxxx, Xxxxxxxxxx Xxxxxx, XX 00000.
2. The name and address of the General Partner are Toll Land Corp. No.
10, a Delaware corporation, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx Xxxxxx, XX 00000.
3. The name and address of the Limited Partner are Toll Bros., Inc., a
Pennsylvania corporation, or its designee, 0000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx
Xxxxxx, XX 00000.
4. The percentage interests and capital contributions of the Partners
are as follows:
General Partner Percentage Interest Capital Contribution
--------------- ------------------- --------------------
Toll Land Corp. No. 10 5% $ 500.00
Limited Partner
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Toll Bros., Inc., 95% $9,500.00
or its designee
5. The date of formation of the partnership is November 26, 2003.
6. The sole purpose of the Partnership is to act as a member of PT
Xxxxxxx, L.L.C., a New Jersey limited liability company (the "LLC") which will
acquire, own, hold, maintain and operate certain real property known as
1101-1125 Xxxxxx Street, City of Hoboken, Xxxxxx County, New Jersey (the
"Property"). Notwithstanding anything contained herein to the contrary, the
Partnership shall not engage in any business, and it shall have no purpose,
unrelated to the LLC and the Property and shall not acquire any real property or
own assets other than those related to the Property and/or otherwise in
furtherance of the purposes of the LLC.
GENERAL TERMS
In addition to the above-specified Specific Terms, the Partners agree
as follows:
1. The terms and conditions specified in the Certificate of Limited
Partnership for the Partnership attached hereto are incorporated herein by
reference and shall be part of the 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.
6. The General Partner, and any additional or substitute general
partner of the Partnership, may not be an individual. Additionally, any
additional or substitute general partner of the Partnership shall have
organizational documents which conform in all material respects to the
organizational documents of the General Partner.
7. Anything in this Agreement to the contrary notwithstanding, the
General Partner shall have no authority to perform any act in respect of the
Partnership in violation of any (a) applicable laws or regulations or (b) any
agreement between the LLC and Wachovia Bank, National Association or its
successors or assigns (collectively, the "Lender").
8. Anything in this Agreement to the contrary notwithstanding, so long
as any indebtedness remains outstanding by the LLC to the Lender, the
Partnership shall not:
a) make any loans to the General Partner or its Affiliates;
b) dissolve, wind-up, or liquidate the Partnership;
c) merge, consolidate or acquire substantially all the assets
of another person or entity;
d) change the nature of the business conducted by the
Partnership; or
e) except as permitted by the Lender in writing, amend or
modify this Agreement.
For purposes of this Agreement, Affiliate means any person or entity which
directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with a Partner. For purposes hereof,
the terms "control", "controlled", or "controlling" shall include, without
limitation, (i) the ownership, control or power to vote ten percent (10%) or
more of (x) the outstanding shares of any class of voting securities or (y) the
Partnership or beneficial interests of any such person or entity, as the case
may be, directly or indirectly, or acting through one or more persons or
entities, (ii) the control in any manner over the general partner(s) or the
election of more than one director or trustee (or persons exercising similar
functions) of such person or entity, or (iii) the power to exercise, directly or
indirectly, control over the management or policies of such person or entity.
9. All funds of the Partnership shall be deposited in such checking
accounts, savings accounts, time deposits, or certificates of deposit in the
Partnership's name or shall be invested in the Partnership's name, in such
manner as shall be designated by the General Partner from time to time.
Partnership funds shall not be commingled with those of any other person or
entity. Partnership funds shall be used by the General Partner only for the
business of the Partnership.
10. Title to Partnership assets shall be held in the Partnership's
name.
11. The Partnership shall not, without the affirmative vote of 100
percent of the Partners, including the vote of an Independent Director, if any,
of the General Partner, institute proceedings to be adjudicated bankrupt or
insolvent; or consent to the institution of bankruptcy or insolvency proceedings
against it; or file a petition seeking, or consent to, reorganization or relief
under any applicable federal or state law relating to bankruptcy; or consent to
the appointment of a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Partnership or a substantial part of its
property; or make any assignment for the benefit of creditors; or admit in
writing its inability to pay its debts generally as they become due; or take any
action in furtherance of any such action.
12. The Partnership shall not terminate or dissolve solely as a
consequence of the bankruptcy, insolvency, appointment of a receiver,
liquidator, assignee, trustee or sequestrator (or other similar official) of a
General Partner of the Partnership or a substantial part of such General
Partner's property, or assignment for the benefit of its creditors, or an
admission in writing of the inability to pay its debts generally as they become
due, or any similar action, of one or more of the General Partners so long as
there remains a solvent general partner of the Partnership.
13. The Partnership shall at all times observe the applicable legal
requirements for the recognition of the Partnership as a legal entity separate
from any partners of the Partnership ("Partners") and Affiliates, including,
without limitation, as follows:
(a) The Partnership shall maintain its records and books and
accounts separate from those of any Affiliate or any other entity.
(b) The Partnership shall hold itself out to the public
(including any Affiliate's creditors) under the Partnership's own name
and as a separate and distinct entity and not as a department, division
or otherwise of any Affiliate.
(c) All customary formalities regarding the existence of the
Partnership, including holding meetings and maintaining current and
accurate records separate from those of any Affiliate, shall be
observed.
(d) The Partnership shall act solely in its own name through
the duly authorized officers of its General Partner. No Affiliate shall
be appointed or act as agent of the Partnership.
(e) Investments shall be made in the name of the Partnership
directly by the Partnership or on its behalf by brokers engaged and
paid by the Partnership or its agents.
(f) Except as required by Wachovia Bank, National Association
or its successors or assigns (collectively, the "Lender"), the
Partnership shall not guarantee or assume any liabilities or
obligations for the benefit of any party, including, without
limitation, any Affiliate or hold itself out or permit itself to be
held out as having guaranteed or assumed any liabilities or obligations
of any party, including, without limitation, any Partner or any
Affiliate, nor shall it make any loan to any party (including any
Affiliate).
(g) The Partnership is and will be solvent and shall pay its
own liabilities, indebtedness and obligations of any kind, including
all administrative expenses, from its own separate assets.
(h) Assets of the Partnership shall be separately identified,
maintained and segregated. The Partnership's assets shall at all times
be held by or on behalf of the Partnership and if held on behalf of the
Partnership by another entity, shall at all times be kept identifiable
(in accordance with customary usages) as assets owned by the
Partnership. This restriction requires, among other things, that
Partnership funds shall not be commingled with those of any Affiliate
and it shall maintain all accounts in its own name and with its own tax
identification number, separate from those of any Affiliate.
(i) The Partnership shall not take any action if, as a result
of such action, the Partnership would be required to register as an
investment Partnership under the Investment Partnership Act of 1940, as
amended.
(j) The Partnership shall at all times be adequately
capitalized to engage in the transactions contemplated at its
formation.
(k) None of the Partnership's funds shall be invested in
securities issued by any Affiliate.
(l) The Partnership shall not enter into any contract or
agreement with any employee, shareholder, consultant, agent, director,
partner, member or manager of the Partnership or any Affiliate, as
applicable, except upon terms and conditions that are intrinsically
fair and substantially similar to those that would be available on an
arms-length basis with third parties other than an Affiliate.
(m) The Partnership shall file its own tax returns.
(n) The Partnership shall not do any act which would make it
impossible to carry on the ordinary business of the Partnership.
(o) The Partnership shall not hold title to the Partnership's
assets other than in the Partnership's name.
IN WITNESS WHEREOF, the Partners have duly executed this Agreement as
of the day and year first written above, intending this Agreement to be
effective as of the date of formation specified above.
GENERAL PARTNER
TOLL LAND CORP. NO. 10
By: Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Xxxxxx Vice President
Attest: Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Assistant Secretary
LIMITED PARTNER
TOLL BROS., IN
By: Xxxxxxx X. Xxxx
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Xxxxxxx X. Xxxx
Xxxxxx Vice President
Attest: Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Assistant Secretary
