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 000
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxxxxxxx 00000, 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.
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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
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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.
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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.
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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.
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"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.
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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.
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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
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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.
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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.
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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: Xxxxx X. Toll
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HUNTINGDON. INC.
By: Xxxxx X. Toll
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