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 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
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 ▇▇▇▇▇▇ ▇. Toll, ▇▇▇
▇▇▇▇▇▇▇▇ 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 or at the
head of his or her name.
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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.
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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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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 ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇; 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.
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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: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
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NAME AND MAILING ADDRESS OF SOLE MEMBER
SOLE MEMBER Address
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Toll Philmont Corporation ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
EXHIBIT B
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OFFICER LIST
Chairman of the Board ▇▇▇▇▇▇ ▇. Toll
President, Chief Operating Officer ▇▇▇ ▇▇▇▇▇▇▇▇
and Assistant Secretary
Executive Vice President, Treasurer, Chief Financial Officer ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
and Assistant Secretary
First Senior Vice President ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Senior Vice President, General Counsel ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
and Assistant Secretary
Vice President, Chief Accounting Officer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and Assistant Secretary
Vice President, Controller ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
and Assistant Secretary
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Vice Presidents
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