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;
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(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;
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(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.
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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.
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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.
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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
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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).
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(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.
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(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.
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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.
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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.
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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.:
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By:
Thomas C. Martin
Authorized Representative
Thomas C. Martin
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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
---------------------------------
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EXHIBIT A
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
TOLL DE X, LLC
Certificate of Formation
[See attached]
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EXHIBIT B
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF
TOLL DE X, LLC
Form of Membership Interest Certificate
[See attached]
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