1
EXHIBIT 10.1
EXECUTION COPY
AGREEMENT OF
LIMITED PARTNERSHIP
OF
DISTRICT HOSPITAL PARTNERS, L.P.
(a District of Columbia Limited Partnership)
by and among
UHS of D.C., Inc.
and
THE XXXXXX XXXXXXXXXX UNIVERSITY
Dated as of April 2, 1997
2
LIMITED PARTNERSHIP AGREEMENT
OF
DISTRICT HOSPITAL PARTNERS, L.P.
This LIMITED PARTNERSHIP AGREEMENT (the "Agreement") is made and
entered into as of April 2, 1997 (the "Effective Date"), by and among UHS of
D.C., Inc., a Delaware corporation, as the general partner and a limited partner
("UHS"), and THE XXXXXX XXXXXXXXXX UNIVERSITY, a congressionally chartered
institution in the District of Columbia, as a limited partner (the
"University"). The parties to this Agreement shall also be referred to
individually as a "Partner" and collectively as the "Partners."
R E C I T A L S
WHEREAS, The Xxxxxx Xxxxxxxxxx University is a highly regarded
university and academic medical center that has among its activities and
affiliates The Xxxxxx Xxxxxxxxxx University Hospital (the "Hospital"), The
Xxxxxx Xxxxxxxxxx University School of Medicine and Health Sciences (the "School
of Medicine"), and The Xxxxxx Xxxxxxxxxx University faculty practice plan (the
"Medical Faculty Associates").
WHEREAS, The Xxxxxx Xxxxxxxxxx University, through its School of
Medicine and Medical Faculty Associates, trains physicians and allied health
professionals through a program of classroom and clinical education that meets
high academic standards.
WHEREAS, The Hospital is a 501-bed tertiary care hospital licensed as
an acute care hospital in the District of Columbia, founded in 1944 and
maintaining a strong commitment to community service.
WHEREAS, UHS is an affiliate of Universal Health Services, Inc. ("UHS
Parent"), a nationally known health care organization that has expertise in
managing and operating hospitals, developing regional networks, and providing
efficient, cost-effective community health care.
WHEREAS, UHS and UHS Parent recognize the Hospital as an important
asset of the District of Columbia community, recognize the academic mission and
charitable purposes of the University and the School of Medicine, recognize the
Hospital's significant contributions to the community, and have committed to
provide community service.
WHEREAS, the Partners intend to bring their health care resources
together in order to create efficiencies, compete effectively in the health care
market, provide affordable, high quality health care services in the community,
and enhance the graduate and undergraduate medical education programs of the
School of Medicine as well as the Medical Faculty
3
Associates and attending physicians. An ongoing clinical and academic
affiliation between the parties will meet their respective objectives by
improving the training of health care professionals and the delivery of high
quality health care services in the community.
WHEREAS, the Partners desire to form a limited partnership under the
laws of the District of Columbia for the purposes and on the terms and
conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the Partners agree as follows:
1. Definitions. When used in this Agreement, the following terms shall
have the meanings set forth below:
1.1. "Act" means the District of Columbia Uniform Limited
Partnership Act of 1987, being District of Columbia Code Section 41-401 et seq.,
as amended.
1.2. "Adjusted Capital Account Deficit" means, with respect to any
Partner, the deficit balance, if any, in such Partner's Capital Account as of
the end of the relevant Fiscal Year, after giving effect to the following
adjustments:
(i) Credit to such Capital Account any amounts which such
Partner is obligated to restore pursuant to any provision of this Agreement or
is deemed to be obligated to restore pursuant to the penultimate sentences of
Treasury Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(ii) Debit to such Capital Account the items described in
Sections 1.704- 1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and
1.704-1(b)(2)(ii)(d)(6) of the Treasury Regulations.
The foregoing definition of "Adjusted Capital Account Deficit" is
intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the
Treasury Regulations and shall be interpreted consistently therewith.
1.3. "Agreement" means this Agreement of Limited Partnership, as
amended from time to time.
1.4. "Ancillary Agreements" means the Academic Affiliation
Agreement, the HMO Hospital Services Agreement, the Guaranty Agreement, the
Trademark License Agreement, the Parking Rental Agreement, the Management
Agreement, and the Ground Lease which the Partners intend to execute as of the
Transfer Date.
-2-
4
1.5. "Assignee" means a Person acquiring a Transferred Interest as
set forth in Section 13.1.
1.6. "Bankruptcy" means the institution of any proceedings under
federal or state laws for relief of debtors, including filing of a voluntary or
involuntary petition in bankruptcy or the adjudication of a Person as insolvent
or bankrupt, or the assignment of a Person's property for the benefit of
creditors, or the appointment of a receiver, trustee or a conservator of any
substantial portion of the Person's assets or the seizure by a sheriff,
receiver, trustee or conservator of any substantial portion of the Person's
assets, and the failure, in the case of any of these events, to obtain the
dismissal of the proceeding or removal of the conservator, receiver or trustee
within thirty (30) days of the event.
1.7. "Capital Account" means, for any given Partner, an account
determined and maintained throughout the full term of the Partnership for such
Partner in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv).
Subject to and in accordance with said Regulation, each Partner's Capital
Account balance at any time shall equal such Partner's Capital Contribution
increased by the Partner's allocable share of Partnership Profits, and decreased
by Distributions made to the Partner by the Partnership and the Partner's
allocable share of Partnership Losses. Upon the contribution to or Distribution
from the Partnership of property, including money, in connection with the
admission to or retirement from the Partnership of a Partner, respectively, the
assets of the Partnership shall be revalued on the books of the Partnership to
reflect the fair market value of such assets at the time of the occurrence of
such event, and the Capital Accounts of the Partners shall be adjusted in the
manner provided in Treasury Regulation Section 1.704-1(b) (2)(iv)(f).
1.8. "Capital Contribution" means, for any given Partner, the
aggregate of the money and the fair market value of any property contributed by
the Partner to the capital of the Partnership (net of any liability secured by
such contributed property that the Partnership assumes or takes subject to as
primary obligor) pursuant to Section 3 hereof.
1.9. "Capital Plan" means the plan described in Section 3.7.2.
1.10. "Centers of Emphasis" means the six (6) clinical programs at
the Hospital that the University and UHS have identified as areas of special
emphasis and that are more fully described in Section 3.8.
1.11. "Chief Executive Officer" means an employee of either UHS or
an affiliate of UHS to manage, supervise and administer the day-to-day
operations of the Partnership.
1.12. "Code" means the Internal Revenue Code of 1986, as amended, or
corresponding provisions of any successor statute.
-3-
5
1.13. "Depreciation" means, for each Fiscal Year, an amount equal to
the depreciation, amortization, or other cost recovery deduction allowable for
federal income tax purposes with respect to an asset for such Fiscal Year,
except that if the Gross Asset Value of an asset differs from its adjusted basis
for federal income tax purposes at the beginning of such Fiscal Year,
Depreciation shall be an amount which bears the same ratio to such beginning
Gross Asset Value as the federal income tax depreciation, amortization, or other
cost recovery deduction for such Fiscal Year bears to such beginning adjusted
tax basis; provided, however, that if the adjusted basis for federal income tax
purposes of an asset at the beginning of such Fiscal Year is zero, Depreciation
shall be determined with reference to such beginning Gross Asset Value using any
reasonable method selected by the General Partner.
1.14. "Director" means a Person appointed to serve on the
Partnership Board.
1.15. "Distribution" means the aggregate of the money or the fair
market value of any property distributed to Partners with respect to their
Interests in the Partnership (net of any liability secured by such property that
the Partner assumes or takes subject to as primary obligor), other than payments
to Partners for services or as repayment of loans or advances.
1.16. "Fiscal Year" means the period defined in Section 6.1.
1.17. "General Partner" means initially UHS and includes any
successor, substitute or additional Person admitted to the Partnership as a
General Partner as provided in Section 13 of this Agreement.
1.18. "Gross Asset Value" means, with respect to any asset, the
asset's adjusted basis for federal income tax purposes, except the initial Gross
Asset Value of any asset contributed by a Partner to the Partnership shall be
the gross fair market value of such asset, as determined by the contributing
Partner and the General Partner, and the Gross Asset Value of any asset
distributed to any Partner shall be adjusted to equal its gross fair market
value as of the date of distribution, as determined by the General Partner and
the distributee partner, provided that the initial Gross Asset Values of the
assets contributed to the Partnership pursuant to Sections 3.1(b) and 3.1(c)
shall be as set forth in such Sections.
1.19. "Hospital" means the acute care hospital inpatient facility
located at 000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X., or as renovated or relocated
as described in Section 3.7.2.
1.20. "Initial Capital Loan" means the initial capital loan of UHS
to the Partnership described in Section 3.1(c).
1.21. "Interest" means the entire ownership interest of a Partner in
the Partnership at any particular time, including the right of such Partner to
any and all benefits to
-4-
6
which a Partner may be entitled as provided in this Agreement, subject to the
obligations of such Partner to comply with all of the terms and conditions of
this Agreement.
1.22. "Letter of Credit" means the irrevocable bank letter of credit
in the amount of Forty Million Dollars ($40,000,000) described in Section 3.9,
as the same may be renewed or modified.
1.23. "Limited Partner" means initially UHS and the University, and
includes any successor, substitute or additional Person admitted to the
Partnership as a limited partner as provided in Section 13 of this Agreement.
1.24. "Major Decisions" means any of the actions of the Partnership
requiring approval of a majority of the Directors appointed by UHS and a
majority of the Directors appointed by the University, as set forth in Section
7.3.
1.25. "Management Agreement" means the agreement between UHS or an
affiliate of UHS and the Partnership for the provision of management services to
the Hospital which the Partners intend to execute as of the Transfer Date.
1.26. "Nonrecourse Deductions" has the meaning set forth in Section
1.704- 2(b)(1) and 1.704-2(c) of the Treasury Regulations.
1.27. "Nonrecourse Liability" has the meaning set forth in Section
1.704- 2(b)(3) of the Treasury Regulations.
1.28. "Partner" means any General Partner or Limited Partner of the
Partnership.
1.29. "Partner Nonrecourse Debt" has the same meaning as the term
"partner nonrecourse debt" set forth in Section 1.704-2(b)(4) of the Treasury
Regulations.
1.30. "Partner Nonrecourse Debt Minimum Gain" means an amount, with
respect to each Partner Nonrecourse Debt, equal to the Partnership Minimum Gain
that would result if such Partner Nonrecourse Debt were treated as a Nonrecourse
Liability, determined in accordance with Section 1.704-2(i)(3) of the Treasury
Regulations.
1.31. "Partner Nonrecourse Deductions" has the same meaning as the
term "partner nonrecourse deductions" set forth in Sections 1.704-2(i)(1) and
1.704-2(i)(2) of the Treasury Regulations.
1.32. "Partnership" means District Hospital Partners, L.P., the
limited partnership organized pursuant to this Agreement.
-5-
7
1.33. "Partnership Board" means the board of directors of the
Partnership which board shall serve in an advisory capacity to the Partnership
and the Partners, except for those Major Decisions requiring a vote of the
Partnership Board under Section 7.3 hereof.
1.34. "Partnership Minimum Gain" has the meaning set forth in
Sections 1.704-2(b)(2) and 1.704-2(d) of the Treasury Regulations.
1.35. "Percentage Interest" means, for purposes of allocating all
items of Profits and Losses among the Partners, a ratio, expressed in
percentages, reflecting a Partner's Interest in the Partnership relative to the
Interests of other Partners. The initial Percentage Interests of the Partners
are as set forth on Exhibit 1.35 hereto.
1.36. "Person" means any natural person, partnership, corporation,
association, trust, governmental agency or other legal entity.
1.37. "Profits" and "Losses" means, for each Fiscal Year or other
period, the Partnership's taxable income or loss for such year or period,
determined in accordance with Section 703(a) of the Code (including in such
taxable income or loss all items of income, gain, loss or deduction required to
be stated separately), increased by any income of the Partnership that is exempt
from federal income tax, and decreased by expenditures of the Partnership
described in Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B)
expenditures pursuant to Section 1.704-1(b)(2)(iv) of the Treasury Regulations.
Profits and Losses, depreciation, depletion, amortization, gain, and loss with
respect to any property (including intangibles) that under Sections
1.704-1(b)(2)(iv)(d) and (b)(2)(iv)(f) of the Treasury Regulations is properly
reflected on the books of the Partnership at a book value that differs from the
adjusted tax basis of such property shall be determined based on the book value
of such property, in accordance with the principles of Section
1.704-1(b)(2)(iv)(g) of the Treasury Regulations. Any items which are specially
allocated pursuant to the provisions of Sections 5.4 and 5.5 shall not be taken
into account in computing Profits and Losses.
1.38. "Project Fund" means the account established for the purposes
set forth in Section 3.7.2.
1.39. "Purposes" means the business and purposes of the Partnership
as described in Section 2.4.
1.40. "Service Area" of the Partnership means the area described in
Exhibit 1.40 to be attached hereto.
1.41. "Substitute Partner" means an Assignee admitted as a Partner
as set forth in Section 13.1.
-6-
8
1.42. "UHS Contribution" means the initial Capital Contribution of
UHS as set forth in Section 3.1(c).
1.43. "Transfer" means any voluntary or involuntary sale,
assignment, transfer, exchange, lease, mortgage, charge, hypothecation, pledge
or other conveyance or encumbrance, including any transfer by operation of law
or otherwise.
1.44. "Transfer Date" means the Closing Date set forth in the
Contribution Agreement between the University and the Partnership.
1.45. "Transferred Interest" means an Interest that is subject to a
Transfer as set forth in Section 13.1.
1.46. "Treasury Regulation" means those regulations promulgated
pursuant to the Code.
1.47. "University Contribution" means the University's initial
Capital Contribution as set forth in Section 3.1(b).
1.48. "University Contribution Agreement" means the Contribution
Agreement between the University and the Partnership to be executed as of the
Transfer Date.
2. Organization of Partnership.
2.1. Formation.
(a) The Partners hereby form the Partnership pursuant to the
provisions of the Act, which shall govern the relationship of the Partners
except as expressly provided to the contrary herein;
(b) The Partners shall take any and all actions as may from
time to time be required under the laws of the District of Columbia to give
effect to the Partnership and to maintain it in good standing; and
(c) Except as provided herein, the Partnership shall be managed
by the General Partner of the Partnership, having the powers specified in
Section 7.1 hereof and subject to the limitations set forth in this Agreement.
2.2. Name. The name of the Partnership shall be District Hospital
Partners, L.P.
2.3. Principal Place of Business. The principal place of business of
the Partnership shall be at the Hospital, which as of the date hereof is located
at 000 00xx Xxxxxx,
-0-
0
X.X., Xxxxxxxxxx, X.X. The Partnership shall continuously maintain a principal
office in the District of Columbia, which office shall be located at its
principal place of business. The Partnership may also have such other offices or
places of business as the Partners may from time to time determine.
2.4. Purposes. The Purposes of the Partnership shall be (a) to own
and operate an acute care hospital in the District of Columbia known as The
Xxxxxx Xxxxxxxxxx University Hospital, (b) to provide or arrange for the
provision of health care services or related services, (c) to furnish
uncompensated and charity health care, (d) to develop and maintain an integrated
delivery system, (e) to develop Centers of Emphasis, (f) to support the academic
programs of the School of Medicine and the Medical Faculty Associates including
research and teaching and (g) to engage in any other business and do any and all
other acts and things agreed upon by the Partners and consistent with the
foregoing.
2.5. Term. The term of the Partnership shall commence as of the
Effective Date and shall continue for fifty (50) years (the "Term"), unless
dissolved, liquidated and terminated sooner pursuant to the provisions of
Section 14 hereof. At the end of the fifty (50) year term, UHS shall have right
to extend the Term for an additional five (5) year renewal term and four (4)
separate additional five (5) year renewal terms thereafter, provided that UHS
provides the University with eighteen (18) months written notice prior to the
end of the Term and each applicable renewal term thereafter.
2.6. Compliance With Securities Laws. Each Partner represents and
warrants that it has acquired or is acquiring its Interest for its own account,
and not with a view toward the resale thereof. Each of the parties hereto is
fully aware and acknowledges that the offer and sale of the Interest which it
has acquired or is acquiring has not been registered under the Securities Act of
1933, as amended, nor registered or qualified under the securities laws of any
state or the District of Columbia. Each Partner acknowledges and agrees that its
Interest may not be sold, transferred, pledged, or hypothecated without
registration under such acts or an opinion of legal counsel that such transfer
may be legally effected without such registration. Additional restrictions on
Transfers of Interests are set forth in this Agreement.
2.7. Resident Agent. The name and address of the Partnership's
resident agent in the District of Columbia shall be C T Corporation System, 0000
Xxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, until changed by the General
Partner.
-8-
10
3. Capitalization of Partnership.
3.1. Description, Timing and Value of Initial Capital Contributions.
(a) Provided the conditions set forth in Subsection (e) below
are satisfied, each Partner shall make its initial Capital Contribution to the
Partnership on the Transfer Date unless otherwise mutually extended by the
Partners.
(b) The University shall transfer and assign to the
Partnership, as its initial Capital Contribution (the "University
Contribution"), all of its rights, title and interest in and to the Assets as
defined in the University Contribution Agreement, subject to the obligations and
liabilities described in the University Contribution Agreement.
(c) UHS shall provide to the Partnership's Project Fund, as its
initial capital commitment, Eighty Million Dollars ($80,000,00). Seventy-two
Million Dollars ($72,000,000) of such initial capital commitment shall be in the
form of a Capital Contribution (the"UHS Contribution") and the remaining eight
million dollars ($8,000,000) shall be in the form of an initial capital loan
(the "Initial Capital Loan"). The UHS Contribution shall be allocated between
UHS's Interests as General Partner and as a Limited Partner in accordance with
the Percentage Interests of UHS set forth in Exhibit 1.35. Forty Million Dollars
($40,000,000) shall be delivered by wire transfer of immediately available funds
to the Partnership's account as of the Transfer Date. The remaining Forty
Million Dollars ($40,000,000) of UHS' capital commitment will be provided from
time to time as required to fund capital expenditures in accordance with the
Capital Plan and shall be secured by the Letter of Credit. The UHS Contribution
and Initial Capital Loan shall be used only for the Project Fund.
(d) UHS shall enter into a loan agreement with the Partnership
whereby UHS shall make the Initial Capital Loan. The Initial Capital Loan amount
shall be Eight Million Dollars ($8,000,000) and shall be added to the Project
Fund. The Initial Capital Loan shall be on a long term basis and shall bear
interest at a rate of twelve percent (12%) per annum to be paid by the
Partnership only to the extent that the Partnership has Profits.
(e) On or before the Transfer Date, the Partners shall take the
following actions and/or ensure that the following events occur and such actions
and events shall be conditions precedent to either Partner's obligation to
contribute its initial Capital Contribution:
(i) The University and the Partnership shall have executed and
performed all of the terms, covenants, representations and warranties set forth
in the University Contribution Agreement, as well as the terms, covenants,
representations and warranties set forth in this Agreement and the exhibits and
schedules attached hereto.
(ii) All parties shall have executed and delivered the Ancillary
Agreements.
-9-
11
(iii) UHS shall have delivered to the Partnership the Loan
Agreement.
(iv) The Partnership shall have executed and/or delivered or caused
to be delivered to each Partner the following:
a. A certificate of the General Partner certifying that all
consents and approvals that are required from any person, entity, governmental
body or regulatory agency in connection with the consummation of the
transactions contemplated by this Agreement by the Partnership have been
obtained;
b. A certificate of the corporate secretary of the General
Partner certifying (i) the incumbency of the officers of the General Partner
from the Effective Date to the Transfer Date and bearing the authentic
signatures of all such officers who shall execute this Agreement and any
additional documents contemplated by this Agreement; and (ii) the minutes of the
meeting of the shareholders of UHS and the resolutions of the Board of Directors
of the General Partner authorizing the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby, including the
transfer of the UHS Contribution, and that such minutes and resolutions have not
been amended or rescinded and remain in full force and effect;
c. A favorable original certificate of good standing of the
Partnership issued by the District of Columbia Department of Consumer and
Regulatory Affairs; and
d. Such other instruments, certificates, consents or other
documents as may be reasonably necessary to carry out the transactions
contemplated by this Agreement and to comply with the terms hereof.
(v) UHS shall have executed and/or delivered or caused to be
delivered to the Partnership the following:
a. A favorable original certificate of good standing issued by
the Delaware Secretary of State;
b. A certificate of the President or any Vice President of UHS
certifying to the Partnership (i) the accuracy of the representations and
warranties set forth in Section 4 hereof and (ii) that all consents and
approvals that are required from any person, entity, governmental body or
regulatory agency in connection with (a) the transfer of the UHS Contribution to
the Partnership's Project Fund and (b) the execution, delivery and performance
of the Management Agreement;
c. A certificate of the corporate Secretary of UHS certifying
to the Partnership (i) the incumbency of the officers of UHS from the Effective
Date to the Transfer Date and bearing the authentic signatures of all such
officers who shall execute this Agreement
-10-
12
and any additional documents contemplated by this Agreement; (ii) as to the
resolutions of the Board of Directors of UHS authorizing (a) the transfer of the
UHS Contribution by UHS to the Partnership, (b) the execution, delivery and
performance of this Agreement and the Ancillary Agreements by UHS, and (c) the
execution, delivery and performance of the Ancillary Agreements; (iii) that such
resolutions have not been amended or rescinded and remain in full force and
effect; and (iv) the current Articles of Incorporation and Bylaws of UHS;
d. Copies of the documents executed and/or delivered in
connection with the transfer of the UHS Contribution by UHS to the Partnership
which are identified in Exhibit 3.1(d)(v)d attached hereto, and
e. Such other certificates, consents, endorsements,
assignments, assumptions, evidences, and other documents or instruments as may
be reasonably requested by the Partnership in order to transfer the UHS
Contribution to the Partnership's Project Fund, to carry out the transaction
contemplated by this Agreement and to comply with the terms hereof.
(vi) The University shall have executed and/or delivered or caused
to be delivered to the Partnership and UHS the following:
a. A certificate of the corporate secretary of the University
certifying (i) the incumbency of the officers of the University from the
Effective Date to the Transfer Date and bearing the authentic signatures of all
such officers who shall execute this Agreement and any additional documents
contemplated by this Agreement; (ii) the minutes of the meeting of the Trustees
of the University and the resolutions of the Board of Trustees of the University
authorizing the execution and delivery of this Agreement and the Ancillary
Agreements and the consummation of the transactions contemplated hereby,
including the transfer of the University Contribution; (iii) that such minutes
and resolutions have not been amended or rescinded and remain in full force and
effect; and (iv) the current Charter and Bylaws of the University;
b. A favorable original certificate of good standing of the
University issued by the District of Columbia Department of Consumer and
Regulatory Affairs or an applicable alternative certificate;
c. Such other instruments, certificates, consents or other
documents as may be reasonably necessary to carry out the transactions
contemplated by this Agreement and to comply with the terms hereof; and
d. Copies of the documents executed and/or delivered in
connection with the transfer of the University Contribution to the Partnership,
which are identified in the University Contribution Agreement.
-11-
13
(vii) On the Transfer Date, no action or proceeding shall be pending
or threatened wherein an unfavorable judgment, decree or order would, in the
reasonable opinion of legal counsel for either Partner, prevent or make
materially unfavorable the carrying out of this Agreement, or would cause the
transactions contemplated by this Agreement to be rescinded. In the event of the
receipt of any communication from any department or agency of government or any
other notice (a copy of which communication or notice shall be promptly
delivered to the Partnership and each Partner) prior to the closing with regard
to the transactions contemplated by this Agreement, which communication or
notice shall, in the reasonable opinion of legal counsel, threaten such an
action or proceeding, either Partner may terminate this Agreement by giving
thirty (30) days advance written notice to the other Partner. During such thirty
(30) day period, UHS and the University shall meet and confer in good faith to
attempt to resolve the issue which is the subject of the action or proceeding.
In the event the parties are unable to do so, or fail to agree to extend the
thirty (30) day period, either Partner may terminate this Agreement by giving
written notice to the other Partner and all parties shall thereupon be released
from any and all liability related to this Agreement.
(f) In the event that each of the conditions precedent set
forth in Subsection (e) above shall not have been satisfied by the Transfer
Date, the Partners shall not be required to make the University Contribution or
the UHS Contribution and the Partnership shall be dissolved, pursuant to the
provisions of Section 14.
3.2. Additional Limited Partners. Subject to the provisions of
Section 7.3 and Section 13, the Partnership may from time to time elect to offer
limited partnership interests to other Persons, as permitted by law. Any Limited
Partner admitted to the Partnership after the execution of this Agreement shall
make an initial Capital Contribution in an amount and at a time as determined by
the Partnership in exchange for its Limited Partnership Interest. A new Limited
Partner's initial Capital Contribution under this Section 3.2 shall, unless
otherwise determined by the Partnership, equal the following amount:
(i) the Percentage Interest of the new Partner, multiplied by
(ii) the fair market value of all the Partnership's assets
(including any new Limited Partner's initial Capital Contribution) as of the
effective date of admission.
3.3. Additional Capital Requirements. It shall be the general policy
of the Partnership that all monies necessary to carry on the activities of the
Partnership shall be obtained first through funds derived from the operation of
the Partnership. To the extent funds derived from the Partnership are not
sufficient, it is the intent of the Partners that the Partners will contribute
an additional Forty-Five Million Dollars ($45,000,000) to the Partnership in
excess of the University Contribution, the UHS Contribution and the Initial
Capital Loan for Hospital operations over a ten (10) year period following the
Transfer Date. Additional capital including such Forty-five Million Dollars
($45,000,000) will, at the election of the General Partner, be, in whole or in
part, in the form of additional Capital Contributions
-12-
14
or capital loans as described in Section 3.4 hereof or loans from non-Partners.
No Partner shall be required to provide additional capital to the Partnership
for the Capital Plan until the Project Fund is fully depleted.
3.4. Capital Contributions and Capital Loans. Partners may be
required to make additional Capital Contributions to the Partnership in the
amounts and at the times determined by the General Partner. No Partner may make
a voluntary Capital Contribution without the consent of the General Partner. All
additional Capital Contributions shall be made in accordance with each Partner's
Percentage Interest in the Partnership, unless the Partners agree otherwise. In
the event a Partner fails to make an additional Capital Contribution, the
General Partner shall make the Capital Contribution in accordance with Sections
3.4 and 3.6. The Partnership may borrow funds from any of the Partners on
reasonable terms and conditions approved by the Partners at the time such loan
or advance is obtained, subject to Section 7.3. Such loans or advances shall not
increase or otherwise affect the Capital Accounts of any of the parties hereto.
Funds loaned by a Partner to the Partnership for purposes of satisfying the need
for an additional Capital Contribution shall accrue interest at the prime rate
as determined from time to time (as published in the Wall Street Journal) plus
two percent (2%) per annum and shall be repaid prior to any Distribution.
3.5. No Withdrawals from Capital Accounts. No Partner shall be
entitled to withdraw funds from its Capital Account, except pursuant to a
Distribution made in accordance with Section 5 or the liquidation of the
Partnership in accordance with Section 14, unless the Partners consent thereto.
3.6. Failure to Make Capital Contributions. The Interest of a
Partner who fails to make any required Capital Contribution or other payment to
the Partnership (subsequent to its initial Capital Contribution) shall be
reduced upon failure to make such Capital Contribution or payment, and each
Partner's Percentage Interest thereafter shall be recalculated.
3.7. Project Fund.
3.7.1. On the Transfer Date, the Partnership shall establish
the Project Fund, which the Partnership shall use to implement the Capital Plan
described in Section 3.7.2. The Project Fund shall consist of the proceeds of
the UHS Contribution and of the Loan Agreement and any additional Capital
Contributions as determined by the General Partner pursuant to Section 3.3
together with income on such funds.
3.7.2. The parties to this Agreement shall work diligently to
develop, approve, and implement a Capital Plan to be prepared by the General
Partner to substantially reconstruct, renovate and equip the existing Hospital
facility, using the Project Fund. Only after the Capital Plan has been fully
implemented and construction is complete, any funds remaining in the Project
Fund shall be used to develop an integrated delivery system
-13-
15
including, without limitation, linkage with the Medical Faculty Associates (as
that term is defined in the Academic Affiliation Agreement attached hereto as
Exhibit 3.7.2), development of a regional healthcare delivery infrastructure
(including expansion of an ambulatory care network) and continued development of
a primary care physician network.
3.7.3. The Project Fund shall not be used to pay management
fees under the Management Agreement, offset deficits in budget pools under the
HMO Hospital Service Agreement, make academic support payments under the
Academic Affiliation Agreement, or in any way fund operating deficits of the
Partnership.
3.8. Centers of Emphasis. The parties to this Agreement intend that
within two (2) years following the Transfer Date, the General Partner shall
develop strategic, capital and operating plans for each of the Centers of
Emphasis to provide capital, marketing and faculty support for the Centers of
Emphasis, each of which shall be subject to the approval of the University under
Section 7.3 hereof. "Centers of Emphasis" are the following six (6) clinical
programs at the Hospital that have been identified by the University as areas of
special emphasis: (1) cardiovascular disease, (2) cancer treatment and research,
(3) emergency medicine, (4) minimally invasive surgery, (5) neurologic disease
and (6) women's health.
3.9. Letter of Credit. The Letter of Credit shall be issued in favor
of the Partnership, effective as of the Transfer Date. The Letter of Credit may
be drawn by the Partnership in the event UHS fails to contribute to the
Partnership the deferred portion of the UHS Contribution or fails to make
available the Initial Capital Loan as the same are required from time to time to
fund continuing capital expenditures in accordance with the Capital Plan. From
and after such time as UHS contributes any of the deferred portion of the UHS
Contribution and makes any portion or all of the Initial Capital Loan to the
Partnership, UHS shall have the right to reduce the stated amount of the Letter
of Credit such that the sum of contributions actually made to the Project Fund
from the UHS Contribution and the Initial Capital Loan and the stated amount of
the Letter of Credit equals Eighty Million Dollars ($80,000,000). The Letter of
Credit shall be in a form, and issued by a financial institution, reasonably
acceptable to the University. The University will review in good faith the need
for the continued existence of the Letter of Credit to secure the ongoing
obligation of UHS to complete the UHS Contribution, taking into consideration
the progress of construction under the Capital Plan, the credit rating of UHS,
and other factors.
UHS shall bear the cost of the Letter of Credit, except that the
University shall reimburse UHS on an annual basis for its cost of the Letter of
Credit plus fifty (50) basis points up to a maximum of 1.75% of the stated
amount of the Letter of Credit not to exceed eight million dollars ($8,000,000)
stated amount; provided that for each dollar of reduction in the amount of the
face amount of the Letter of Credit other than as a result of the cash funding
of UHS Contribution, the amount of the Letter of Credit with respect to which
the University is obligated to pay UHS its cost shall be reduced
correspondingly.
-14-
16
3.10 Initial Capital Loan. Only after UHS contributes all of the
deferred portion of the UHS Contribution, the Initial Capital Loan may be drawn
upon from time to time to fund continuing capital expenditures in accordance
with the Capital Plan or after completion of the Capital Plan otherwise in
accordance with Section 3.7.2.
4. Representations and Warranties of UHS. UHS hereby represents and
warrants to the Partnership, which representations and warranties shall be true
and correct on the Effective Date, as follows:
4.1. Organization; Good Standing. UHS is a Delaware corporation,
duly organized, validly existing and in good standing under the laws of Delaware
with full corporate power and authority to carry on its businesses. UHS is also
duly qualified to carry on its businesses in the District of Columbia.
4.2. Authority; Validity; No Breach. UHS has the full right, power,
legal capacity and authority, to execute, deliver and carry out the terms of
this Agreement and all documents and agreements necessary to give effect to the
provisions of this Agreement and to consummate the transactions contemplated
hereby. All corporate and other actions required to be taken by UHS to authorize
the execution, delivery and performance of this Agreement, all documents
executed by it necessary to give effect to this Agreement, and all transactions
contemplated hereby have been duly and properly taken or obtained or will be
duly and properly taken or obtained by UHS prior to the Transfer Date. No other
corporate or other action on the part of UHS is necessary to authorize the
execution, delivery and performance of this Agreement, all documents necessary
to give effect to this Agreement and all transactions contemplated hereby. Any
consent which has not been obtained would not have an adverse effect on the
transactions contemplated hereby.
This Agreement is, and the documents to be delivered at closing will
be, the lawful, valid and legally binding obligations of UHS in accordance with
their respective terms. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby will not, with or without
the giving of notice and/or the passage of time: (a) violate the Articles of
Incorporation or Bylaws of UHS, or any provision of law, statute, rule or
regulation to which UHS is subject; or (b) violate or conflict with any
judgment, order, writ or decree of any court applicable to UHS; which violation
or conflict would have a material adverse effect on the transactions
contemplated hereby.
4.3. Consents and Approvals. UHS has obtained each consent,
approval, permit, waiver, authorization or other action of or by any court,
governmental or nongovernmental person or entity, that is required in connection
with the execution, delivery or performance of this Agreement by UHS.
4.4. Solvency. UHS is not insolvent and will not be rendered
insolvent as a result of any of the transactions contemplated by this Agreement.
For purposes hereof, the
-15-
17
term "solvency" means that: (a) the fair salable value of UHS's tangible assets
is in excess of the total amount of its liabilities (including for purposes of
this definition all liabilities, whether or not reflected on a balance sheet
prepared in accordance with generally accepted accounting principles, and
whether direct or indirect, fixed or contingent, secured or unsecured, and
disputed or undisputed); (b) UHS is able to pay its debts or obligations in the
ordinary course as they mature; and (c) UHS has capital sufficient to carry on
its businesses and all businesses in which it is about to engage.
4.5. Guaranty. UHS Parent will execute a guaranty agreement with UHS
(the "Guaranty Agreement"), a copy of which is attached hereto as Exhibit 4.5.
4.6. Community Service. UHS recognizes the significant contribution
the University has made to the local community through its support of
uncompensated and indigent care at the Hospital. For at least two (2) years from
the Transfer Date, the Partnership shall maintain the Hospitals policies for the
treatment of indigent patients as such policies exist as of the Transfer Date.
Moreover, UHS recognizes as a member of the community the Partnership's
responsibilities for the treatment of indigent patients. Notwithstanding
anything in this Agreement or any Ancillary Agreement to the contrary, the
Partnership shall comply with all applicable laws and regulations relating to
uncompensated care and community service, including but not limited to the
requirements of any applicable Certificate of Need law.
5. Distributions and Allocations.
5.1. Distributions. Subject to Section 14 below, the General Partner
may make Distributions to the Partners of cash or other property of the
Partnership. No Distribution under this Section 5.1 shall be made, however,
unless the cash or property to be distributed is determined by the General
Partner, in accordance with sound business practices, to be in excess of the
Partnership's business needs, including for this purpose any and all reasonable
reserves for working capital or liabilities of the Partnership, such as the
Partnership's repayment obligations with respect to any Capital Loans, or other
reasonably foreseeable contingencies. All Distributions shall be in proportion
to the Partners' respective Percentage Interests.
5.2. Record Date for Distributions. Each Distribution to the
Partners pursuant to this Agreement shall be made to the Partners who are
holders of record of Interests as of the date such Distribution is approved.
5.3. Allocations of Profits and Losses. Except as otherwise provided
in Sections 5.4 and 5.5, Profits and Losses shall be allocated among the
Partners annually at the close of each Fiscal Year of the Partnership according
to their respective Percentage Interests.
-16-
18
5.4. Special Allocations. The following special allocations shall be
made in the following order:
5.4.1. Minimum Gain Chargeback. Except as otherwise provided in
Section 1.704-2(f) of the Treasury Regulations, notwithstanding any other
provision of this Section 5, if there is a net decrease in Partnership Minimum
Gain during any Fiscal Year, each Partner shall be specially allocated items of
Partnership income and gain for such Fiscal Year (and, if necessary, subsequent
Fiscal Years) in an amount equal to such Partner's share of the net decrease in
Partnership Minimum Gain, determined in accordance with Treasury Regulations
Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made
in proportion to the respective amounts required to be allocated to each Partner
pursuant thereto. The items to be so allocated shall be determined in accordance
with Sections 1.704- 2(f)(6) and 1.704-2(j)(2) of the Treasury Regulations. This
Section 5.4.1 is intended to comply with the minimum gain chargeback requirement
in Section 1.704-2(f) of the Treasury Regulations and shall be interpreted
consistently therewith.
5.4.2. Partner Minimum Gain Chargeback. Except as otherwise
provided in Section 1.704-2(i)(4) of the Treasury Regulations, notwithstanding
any other provision of this Section 5, if there is a net decrease in Partner
Nonrecourse Debt Minimum Gain attributable to a Partner Nonrecourse Debt during
any Fiscal Year, each Partner who has a share of the Partner Nonrecourse Debt
Minimum Gain attributable to such Partner Nonrecourse Debt, determined in
accordance with Section 1.704-2(i)(5) of the Treasury Regulations, shall be
specially allocated items of Partnership income and gain for such Fiscal Year
(and, if necessary, subsequent Fiscal Years) in an amount equal to such
Partner's share of the net decrease in Partner Nonrecourse Debt Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in accordance with
Treasury Regulations Section 1.704-2(i)(4). Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to be
allocated to each Partner pursuant thereto. The items to be so allocated shall
be determined in accordance with Sections 1.704-2(i)(4) and 1.704-2(j)(2) of the
Treasury Regulations. This Section 5.4.2 is intended to comply with the minimum
gain chargeback requirement in Section 1.704-2(i)(4) of the Treasury Regulations
and shall be interpreted consistently therewith.
5.4.3. Qualified Income Offset. In the event any Partner
unexpectedly receives any adjustments, allocations, or distributions described
in Section 1.704- 1(b)(2)(ii)(d)(4), Section 1.704-1(b)(2)(ii)(d)(5), or Section
1.704-1(b)(2)(ii)(d)(6) of the Treasury Regulations, items of Partnership income
and gain shall be specially allocated to each such Partner in an amount and
manner sufficient to eliminate, to the extent required by the Treasury
Regulations, the Adjusted Capital Account Deficit of such Partner as quickly as
possible, provided that an allocation pursuant to this Section 5.4.3 shall be
made only if and to the extent that such Partner would have an Adjusted Capital
Account Deficit after all other allocations provided for in this Section 5 have
been tentatively made as if this Section 5.4.3 were not in the Agreement.
-17-
19
5.4.4. Gross Income Allocation. In the event any Partner has a
deficit Capital Account at the end of any Fiscal Year which is in excess of the
sum of (i) the amount such Partner is obligated to restore pursuant to any
provision of this Agreement, and (ii) the amount such Partner is deemed to be
obligated to restore pursuant to the penultimate sentences of Sections
1.704-2(g)(1) and 1.704-2(i)(5) of the Treasury Regulations, each such Partner
shall be specially allocated items of Partnership income and gain in the amount
of such excess as quickly as possible, provided that an allocation pursuant to
this Section 5.4.4 shall be made only if and to the extent that such Partner
would have a deficit Capital Account in excess of such sum after all other
allocations provided for in this Section 5 have been made as if this Section
5.4.4 were not in the Agreement.
5.4.5. Partner Nonrecourse Deductions. Any Partner Nonrecourse
Deductions for any Fiscal Year shall be specially allocated to the Partner who
bears the economic risk of loss with respect to the Partner Nonrecourse Debt to
which such Partner Nonrecourse Deductions are attributable in accordance with
Treasury Regulations Section 1.704-2(i)(1).
5.4.6. Nonrecourse Deductions. Nonrecourse Deductions for any
Fiscal Year shall be specially allocated among the Partners in proportion to
their Percentage Interests.
5.5. Curative Allocations. The allocations set forth in Sections
5.4.1, 5.4.2, 5.4.3, 5.4.4, 5.4.5 and 5.4.6 (the "Regulatory Allocations") are
intended to comply with certain requirements of the Treasury Regulations. It is
the intent of the Partners that, to the extent possible, all Regulatory
Allocations shall be offset either with other Regulatory Allocations or with
special allocations of other items of Partnership income, gain, loss, or
deduction pursuant to this Section 5.5. Therefore, notwithstanding any other
provision of this Section 5 (other than the Regulatory Allocations), the
General Partner shall make such offsetting special allocations of Partnership
income, gain, loss, or deduction in whatever manner it determines appropriate
so that, after such offsetting allocations are made, each Partner's Capital
Account balance is, to the extent possible, equal to the Capital Account
balance such Partner would have had if the Regulatory Allocations were not part
of the Agreement. In exercising its discretion under this Section 5.5, the
General Partner shall take into account future Regulatory Allocations under
Section 5.4.1 and 5.4.2 that, although not yet made, are likely to offset other
Regulatory Allocations previously made under Section 5.4.5 and 5.4.6.
5.6. Book Value/Tax Basis Differentials. In accordance with Section
704(b) and 704(c) of the Code and the Treasury Regulations promulgated
thereunder, income, gain, loss, deductions and credit with respect to (i) any
property contributed to the capital of the Partnership, and (ii) any property
revalued on the Partnership's books in accordance with Treasury Regulation
Section 1.704-1(b)(2)(iv)(f), shall, solely for tax purposes, be allocated among
the Partners so as to take into account any variation between the adjusted basis
of such
-18-
20
property to the Partnership for federal tax purposes and its value on the books
of the Partnership. The General Partner shall make such allocations using the
"remedial allocation method," as specified in Treasury Regulation Section
1.704-3(d).
5.7. Allocation in Respect of Interests Held for Partial Year. In
the event of a change in the Partners' Percentage Interests during any Fiscal
Year, Profits and Losses, if any, for such Fiscal Year shall be divided equally
among the months of such year, and each Partner shall participate in the
allocation for each month on the basis of its Percentage Interest as of the last
day of that month. Notwithstanding the foregoing, the Partnership shall in all
events utilize an accounting method for determining the allocable shares of the
above items to which the Partners are entitled that complies with Code Section
706(d) and the Treasury Regulations thereunder.
6. Reports, Books and Records.
6.1. Maintenance. The Partnership shall maintain complete and
accurate books and records, as required by the Act, at its principal office or
such other place or places as the General Partner may from time to time
determine. The Partnership shall adopt the same fiscal year as UHS uses in its
business, or such other fiscal year as is required to be adopted by the
Partnership for federal income tax purposes under Section 706 of the Code (a
"Fiscal Year").
6.2. Financial Statements and Income Tax Returns. The General
Partner shall cause to be prepared and delivered to each Partner, within one
hundred twenty (120) days after the expiration of each Fiscal Year, a balance
sheet and a profit and loss statement of the Partnership, a statement showing
the Capital Accounts, the Distributions and the share in the Profits and Losses
of each of the Partners for such Fiscal Year, and copies of all income tax
informational returns filed by or on behalf of the Partnership, together with
such additional tax information with respect to the Partnership's operations as
shall be necessary for the preparation by the Partners of their federal or state
income tax returns. Each of the Partners shall be entitled to request such
additional reports on the operations or financial condition of the Partnership
as they reasonably believe is appropriate.
6.3. Inspections. Each Partner of record shall have the right to
examine, at any reasonable time or times for all purposes, the books and records
of account, and the minutes and records of the Partnership, and to make copies
thereof at such Partner's expense. Such inspection may be made by any agent or
attorney of the Partner.
6.4. Tax Elections; Adjustment of Basis of Partnership. Upon the
Transfer of any Interest in the Partnership in the manner provided in Section
743 of the Code, or a Distribution of property made in the manner provided in
Section 734 of the Code, in the reasonable discretion of the General Partner,
the Partnership may file an election under Section 754 of the Code to adjust the
basis of the assets of the Partnership under the circumstances and
-19-
21
in the manner provided in Sections 734 and 743. In the event of such election,
the General Partner shall take any and all necessary steps to consummate such
adjustment, including, without limitation, the filing of the election with the
income tax return of the Partnership for the first Fiscal Year to which the
election applies.
The General Partner may (but need not), in its sole and absolute
discretion, make any other elections under the Code or the Treasury Regulations,
and the General Partner shall be absolved from all liability for any and all
consequences to any previously admitted or subsequently admitted partners
resulting from the making or failing to make any tax election.
6.5 Tax Matters Partner. The General Partner is hereby designated as
the "tax matters partners" in accordance with Section 6231(a)(7) of the Code,
and, in connection therewith and in addition to all other powers given thereto,
shall have all powers necessary and appropriate to perform such role and to
expend Partnership funds for professional services and costs associated
therewith.
7. Management of the Partnership.
7.1. Responsibilities and Authority of the General Partner. The
overall management and control of the Partnership and all of its affairs shall
be in the General Partner, except as otherwise set forth herein or in the
Management Agreement. The General Partner shall oversee the implementation of
the decisions of the Partners and the day-to-day management of the Partnership
by the Chief Executive Officer. The General Partner shall devote such attention
and business capacity to the affairs of the Partnership as may be reasonably
necessary to fully perform its duties as General Partner.
7.2. Partnership Board of Directors.
7.2.1. The board of directors of the Partnership (the
"Partnership Board") shall consist of six (6) Directors. Three (3) Directors
shall be appointed by the University and shall be University Directors, and
three (3) Directors shall be appointed by UHS and shall be UHS Directors.
7.2.2. The University shall elect the initial Chairman of the
Partnership Board after consultation with UHS. Thereafter, the Chairman shall be
elected by the Partnership Board of Directors on the basis of the Partners'
Partnership Interests.
7.2.3. The initial Directors shall be as set forth in Exhibit
7.2.3 attached hereto. The term of each of the initial Directors shall be from
the inception of the Partnership until the first meeting of the Partners, at
which time their successors shall be elected and qualified by the University and
UHS, respectively. The University and UHS shall retain the discretion to replace
any of their respective elected Directors during their term as Directors. After
the first meeting of the Partners, all Directors shall serve for terms of one
(1)
-20-
22
year, or until their successors shall have been elected and qualified or until
the earlier of their death, removal, resignation or disqualification. After the
first meeting, each Partner shall annually elect its class of Directors.
Directors elected by a Partner shall be automatically disqualified as Directors
in the event that the Partner ceases to be a Partner. There shall be no
limitation on the number of terms a Director may serve.
7.2.4. In all events, a Director shall hold office until his
successor has been elected and qualified.
7.2.5. An annual meeting of the Partnership Board shall be held
at the date, time and place determined by the Partnership Board. Special
meetings of the Partnership Board may be called by the Chairman, the Partnership
Board or any two (2) Directors by giving at least five (5) days written notice
to the Directors, except in the case of an emergency, which shall require at
least forty-eight (48) hours written notice, of the date, time, place and
purpose of the special meeting. Participation at any meeting may be by any means
of communication pursuant to which all Directors participating may
simultaneously hear each other.
7.2.6. Any Director may waive notice of any meeting. Except as
set forth in the following sentence, the waiver must be in writing, signed by
the Director entitled to the notice and filed with the minutes or other records
of the Partnership. A Director's attendance at or participation in a meeting
shall constitute a waiver of notice of that meeting unless the Director is
attending for the sole purpose of objecting to the notice. Neither the business
to be transacted at, nor the purpose of, any meeting of the Directors (other
than for special meetings) need be specified in the notice or waiver of notice
of the meeting.
7.2.7. The presence at a meeting of Directors representing a
majority of the total voting power of the Partnership Board shall constitute a
quorum for such meeting. If less than a quorum of the Directors is present at a
meeting, the Directors present shall adjourn the meeting to a different time.
7.2.8. Except as otherwise provided in this Agreement, the
Directors appointed by a particular Partner shall, as a group, have voting
rights equivalent to that Partner's Percentage Interest. With the exception of
the Major Decisions described in Section 7.3, the affirmative vote of a majority
of the Percentage Interests represented at a meeting at which a quorum is
present shall be required for an action of the Directors.
7.2.9. The Partner which elected a Director may remove the same
Director with or without cause. A Director may resign at any time by giving
written notice to the Directors or to the Chairman. A resignation is effective
when the notice is given unless the notice specifies a future date. The pending
vacancy may be filled before the effective date, but the successor shall not
take office until the effective date.
-21-
23
7.2.10. A vacancy created by removal, death, incapacity,
resignation or an increase in the number of Directors or by any other reason may
be filled only by election by the Partner which elected such Director or, in the
case of an increase in the number of Directors, by the Partner entitled to elect
the new Directors. The individual elected to fill a vacancy shall serve until
the next annual appointment of Directors by the Partners.
7.2.11. A Director who is present at a meeting of the Directors
at which any official action is taken shall be conclusively presumed to have
assented to the action unless he announces his dissent at the meeting, or his
dissent is entered in the minutes of the meeting, or he files his written
dissent with the secretary of the meeting before the meeting is adjourned.
7.2.12. Any action required or permitted to be taken at a
meeting of the Directors may be taken without a meeting if a written consent
setting forth the action so taken is signed by each Director and is filed with
the minutes of proceedings of the Directors.
7.2.13. No Director shall receive a salary from the Partnership
solely on account of his service as a Director, but this shall not preclude the
Partnership from reimbursing Directors for expenses reasonably incurred in
connection with their service or from paying Directors for other services
rendered to the Partnership.
7.3. Major Decisions. While the University's Percentage Interest is
twenty percent (20%) or greater or if less than twenty percent (20%), until the
Capital Plan has been fully implemented (with respect to Section 7.3(h) only),
the approval of a majority of the Directors appointed by the University and a
majority of the Directors appointed by UHS shall be required for the following
actions:
(a) Material amendments to this Agreement;
(b) Sale or transfer of more than ten percent (10%) of the
assets of the Partnership;
(c) Addition of Partners to the Partnership or sale of any
Partnership Interest, provided that approval shall not be unreasonably withheld;
(d) Incurrence of debt by the Partnership which results in debt
as a percentage of total capitalization in excess of fifty percent (50%);
(e) Annual capital expenditures (not including those incurred
as part of the Project Fund) in excess of fifteen percent (15%) of the net book
value of the Partnership's total assets, with any unused portion to be carried
over to future years;
-22-
24
(f) Distributions to the Partners by the Partnership except in
accordance with this Agreement;
(g) Agreements between the Partnership and either the
University or UHS or any affiliate of either party, unless such agreements are
on terms and conditions at least as favorable as available from third parties;
(h) Approval of the Project Fund and plans for the support and
development of the Centers of Emphasis, and material modifications thereto; and
(i) Acceptance of a business opportunity pursuant to Section
12.2.
7.4. Advisory Powers. In addition to the powers expressly set forth
in this Agreement, the Partnership Board shall advise the Partnership on other
matters affecting the Partnership. The Partnership Board shall receive advice
from the Hospital Board of Trustees regarding Hospital matters.
8. Hospital Board of Trustees. The Partnership shall establish a board
of twelve (12) trustees (the "Board of Trustees"). At least seven (7) of the
trustees will be residents of the Hospital service area so as to provide local
guidance to the policy and direction of the Hospital. The University and UHS
shall each appoint six (6) Trustees, provided that no more than four (4)
trustees shall be employed by or affiliated with the University and no more than
four (4) trustees shall be employed by or affiliated with UHS. No less than four
(4) trustees shall be members of the community who are not employed by or
affiliated with UHS or the University. The responsibilities of the Board of
Trustees shall be (a) establishing and maintaining accreditation and meeting
accreditating agency requirements relating to medical staff credentialing,
quality assurance, and oversight of Hospital responsibilities, (b) amending the
Hospitals medical staff bylaws, rules and regulations, (c) promoting community
involvement and community service and (d) advising the Partnership Board
regarding Hospital matters. The Bylaws of the Board of Trustees are attached
hereto as Exhibit 8.
9. Chief Executive Officer. The General Partner shall consult with the
University with respect to the selection of the Chief Executive Officer of the
Hospital. The Chief Executive Officer shall be appointed by, and shall serve at
the pleasure of, The Partnership Board. The Chief Executive Officer shall be
responsible for managing, supervising and administering the day-to-day
operations of the Partnership.
10. Reserve Powers. Notwithstanding anything in this Agreement or any
Ancillary Agreement to the contrary, and regardless of the Partnership Interest,
if any, held by the University, the following actions of the Partnership shall
require the approval of the University, which actions shall not affect the
University's status as a Limited Partner or provide the University with any
power to bind the Partnership:
-23-
25
10.1. Any material discontinuance, addition, or transfer outside of
the Washington Circle area of the District of Columbia of any significant
medical services provided at the Hospital as of the Transfer Date; provided that
the University's approval shall not be unreasonably withheld. For purposes of
this Section 10.1, the University's reasonable determination shall take into
account such factors as:
(a) Whether the discontinuance, addition, or transfer of services
will materially adversely affect academic programs;
(b) Whether the continuation of a service would impose a significant
financial burden on the Partnership;
(c) Whether the services to be discontinued or transferred are
available in the community, subject to considerations of cost, quality, and
reasonable access by patients and physicians; and
(d) Whether the discontinuance, addition, or transfer of services is
in the financial and strategic interest of the Partnership;
10.2. Any material discontinuance, addition, or transfer outside of
the Washington Circle area of the District of Columbia of (a) any programs of
undergraduate and graduate medical education sponsored or offered by The Xxxxxx
Xxxxxxxxxx University at the Hospital as of the Transfer Date; (b) clinical
programs conducted by the Medical Faculty Associates at the Hospital as of the
Transfer Date; (c) Clinical Support Positions, as defined in the Academic
Affiliation Agreement; and (d) Centers of Emphasis;
10.3. Selection of Clinical Chiefs as provided in the Academic
Affiliation Agreement; and
10.4. Discontinuance of operation of an acute care hospital in the
Washington Circle area of the District of Columbia.
11. Confidential and Proprietary Information.
11.1. Confidential Information. Each Partner recognizes that due to
the nature of this Agreement, it will have access to information of a
proprietary nature owned by the Partnership, another Partner, and/or affiliates
of another Partner including but not limited to documents and programs (whether
or not completed or in use), operating manuals or similar materials that
constitute nonmedical systems, policies and procedures, and methods of doing
business, administrative, advertising or marketing techniques, financial
affairs, and other proprietary information (collectively, the "Confidential
Information"). Consequently, each Partner acknowledges and agrees that the
Partnership, the other Partner(s) and the affiliates of the other Partner(s)
respectively, have a proprietary interest in such Confidential Information
-24-
26
and that all such information constitutes confidential and proprietary
information and/or trade secret property of the respective party or parties.
Each Partner hereby expressly and knowingly waives any and all right, title and
interest in and to other parties' Confidential Information and agrees to return
all copies of Confidential Information to the provider(s) of such information at
the Partner's expense upon the expiration or earlier termination of this
Agreement; provided, however, that any Confidential Information developed and
owned by the Partnership shall continue to be available for use by the Partners
and their affiliates following the expiration or termination of this Agreement.
Notwithstanding the foregoing, any Confidential Information used by the Partners
after the expiration or termination of this Agreement shall remain confidential
and proprietary and shall not be shown or disclosed to Persons other than the
Partner's affiliates without the prior written consent of the party or parties
furnishing the Confidential Information or except: (1) as required in
governmental filings or judicial, administrative or arbitration proceedings, or
(2) as otherwise required by law (including but not limited to in response to a
subpoena from a court or authorized governmental agency) (hereinafter the
"Confidentiality Exception"). All provider cost and rate information and other
comparable data deemed by a party to be proprietary shall only be furnished to
the other party or parties and their representatives (or, if deemed by counsel
to be appropriate in connection with compliance with applicable antitrust or
similar laws, to a neutral party), who shall not release it to any other Person
without a consent of the party or parties owning such data or unless a
Confidentiality Exception applies.
Each Partner further acknowledges and agrees that the Partnership,
other Partner(s), and other Partner(s)' affiliates, respectively, are entitled
to prevent their respective competitors from obtaining and utilizing the
Confidential Information. Therefore, each Partner agrees to hold the
Confidential Information in strictest confidence and to not disclose such
information or allow such information to be disclosed, directly or indirectly,
during and after the Term of this Agreement to any Person or entity other than
those Persons or entities who are legal and financial advisors or employees of
or are otherwise affiliated with the Partnership, a Partner or an affiliate of a
Partner, or the Partnership's affiliates (collectively, the "Partnership
Representatives") on a need to know basis, without the prior written consent of
the party or parties furnishing Confidential Information unless a
Confidentiality Exception applies. Further, each Partner shall require its
Partnership Representatives that receive the Confidential Information to abide
by the terms of this Section 11.1. Neither the Partnership, a Partner nor any of
the Partnership Representatives shall use Confidential Information other than in
connection with the business of the Partnership or a Partner's performance of
its obligations under this Agreement until expiration or earlier termination of
this Agreement. In addition, after the expiration or earlier termination of this
Agreement, no Partner shall disclose to anyone any Confidential Information
obtained by the Partner from the Partnership, a Partner or an affiliate of a
Partner, other than upon the prior written consent of the party or parties
providing the Confidential Information unless a Confidentiality Exception
applies.
-25-
27
11.2. The restrictions set forth in Section 11.1 above shall not
apply to any information which becomes publicly known through no fault of the
Partners and their affiliates which received or was given access to such
information by the other party or parties.
12. Rights and Duties of the Partners.
12.1. Indemnification.
12.1.1. Actions by Third Persons. To the extent and in the
manner permitted by the laws of the District of Columbia, the Partnership shall
indemnify, defend and hold harmless any Person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
other than an action by, or in the right of the Partnership, by reason of the
fact that such Person is or was a Director, trustee, officer, employee or agent
of the Partnership, or is or was a Partner (including the General Partner in its
role as Tax Matters Partner), or an officer, director, trustee, employee or
agent of such Partner, or is or was serving at the request of the Partnership as
a director, officer, employee or agent of another limited liability company,
corporation, partnership, joint venture, trust or other enterprise against
expenses (including but not limited to attorneys' fees, judgments, fines and
amounts paid in settlement) actually and reasonably incurred by such Person in
connection with such action, suit or proceeding (i) if such Person acted in good
faith and in a manner such Person reasonably believed to be in, or not opposed
to, the best interests of the Partnership, (ii) if the acts or omissions forming
the basis for such allegation were appropriately authorized by the Partnership,
and (iii) if, with respect to any criminal action or proceeding, such Person had
no reasonable cause to believe the conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon a
plea of nolo contenders or its equivalent, shall not, of itself, create a
presumption that the Person did not act in good faith and in a manner which such
Person reasonably believed to be in or not opposed to, the best interests of the
Partnership and, with respect to any criminal action or proceeding, had
reasonable cause to believe that conduct was unlawful. Indemnification shall not
be permitted if a Partner has been adjudged liable for personal benefits
improperly received, willful misconduct, recklessness, or gross negligence with
respect to the business of the Partnership.
12.1.2. Determination. Any indemnification under the
provisions of Section 12.1.1 of this Agreement, unless ordered by a court,
shall be made available to the Director, trustee, Partnership only as
authorized in the specific case following a specific determination that
indemnification of the Director, trustee, Partner, officer, employee or agent
is proper under the circumstances because such Person has met the applicable
standard of conduct set forth in Section 12.1.1 of this Agreement. Such
determination shall be made:
(a) by the Partners by the vote of a majority in
Percentage Interest consisting of Partners who were not parties to such action,
suit or proceeding; or
-26-
28
(b) if the disinterested Partners so direct, by
independent legal counsel in a written opinion.
12.1.3. Expense Advances. Expenses incurred by an officer of
the Partnership or Parties in defending a civil or criminal action, suit or
proceeding may be paid by the Partnership in advance of the final disposition of
such action, suit or proceeding, determined on a case-by-case basis, if the
action, suit or proceeding arises from the performance by such officer or
Partner of Partnership duties; and upon receipt of an undertaking by or on
behalf of such officer or Partner to repay such amount if it shall ultimately be
determined that such officer or Partner is not entitled to be indemnified by the
Partnership as authorized by the provisions of this Section 12. Such expenses
incurred by other employees and agents may be so paid upon such terms and
conditions, if any, as the Partners deem appropriate.
12.1.4. Insurance. The Partnership may, to the full extent
permitted by the laws of the District of Columbia, but only to such extent as
may be determined by the Partners, purchase and maintain insurance on behalf of
any Person who is or was a Director, trustee, officer, employee or agent of the
Partnership, or is or was a Partner or an officer, director, employee or agent
of such Partner, or is or was serving at the request of the Partnership as a
partner, officer, employee or agent of another limited liability company,
corporation, partnership, joint venture, trust or other enterprise against any
liability asserted against and incurred by such Person in any such capacity or
arising out of such Person's status as such, whether or not the Partnership
would have the power to indemnify such Person against such liability under the
provisions of this Section 12.
12.1.5. Continuation of Indemnification. The indemnification
and advancement of expenses provided by or granted pursuant to this Section 12
shall continue as to a Person who has ceased to be a Director, trustee, Partner,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a Person.
12.2. Partnership Business Opportunities.
12.2.1. New Business Opportunities. The Partnership shall
have the first right to acquire, manage or operate any opportunity of a Partner
to engage in any healthcare or related activity within the Partnership's
Service Area which is not conducted by a Partner immediately after the Transfer
Date. Accordingly, if a Partner is presented such an opportunity, such Partner
shall offer the Partnership the first right to acquire, manage or operate such
activity. An offer under this Section 12.2.1 shall be based on a summary term
sheet prepared in good faith by the presenting Partner, or by the General
Partner if the opportunity was first made available to the Partnership. Such
term sheet shall describe the nature of the opportunity, its relationship to
the activities of the Partnership, and any other material terms and conditions
of the opportunity relevant to its consideration by the Partnership. The
Partners intend that a business opportunity of the Partnership may be
-27-
29
pursued in whatever manner best accomplishes the purposes of the Partnership
including, but not limited to, having ownership of assets used in the business
in the name of one or more Partners. The Partnership shall determine whether to
act on the business opportunity in accordance with Section 7.3(i). If the
Partnership does not state in writing to the proposing Partner that it is
willing to acquire, manage or operate the business opportunity within thirty
(30) days after the Partnership's receipt of the offer, or if the Partnership
does not proceed with all due diligence to consummate the transaction, either
Partner may negotiate for and acquire, manage or operate such business
opportunity.
12.2.2. Remedies. In the event of an actual or threatened
breach by the Partnership or a Partner of this Section 12.2 the nonbreaching
Partner or its affected affiliate shall be entitled to an injunction restraining
the breaching party from the prohibited conduct. Notwithstanding any other
provision of this Agreement, if a court of competent jurisdiction should hold
that the scope (geographic or otherwise) of the foregoing covenants is
unreasonable, then, to the extent permitted by law, the court may prescribe a
scope (geographic or otherwise) that is reasonable and judicially enforceable.
Nothing herein stated shall be construed as prohibiting a nonbreaching Partner
or any affiliate thereof from pursuing any other remedies available to it for
such breach or threatened breach, including, the recovery of damages from any
breaching party.
12.3. Covenant Not to Compete. As of the Transfer Date, the
Partners and their affiliates shall not, without the prior written consent of
the Partnership, own or operate, directly or indirectly, any healthcare related
business which may be competitive with the activities of the Partnership within
the Partnership's Service Area; provided, however, that this Section 12.3 shall
not apply to (i) the operations of the Partners and their respective affiliates
in place as of the Effective Date of this Agreement that are listed on Exhibit
12.3 hereto or (ii) the particular opportunities presented to the Partnership
under Section 12.2.1, which the Partnership has chosen not to pursue. To the
extent that any portion of the provisions of this Section 12.3 shall be deemed
by a court of competent jurisdiction to exceed the time or geographic limits or
any other limitations permitted by applicable law, then this Section 12.3 shall
be deemed reformed to the maximum extent permitted by applicable law.
12.4. Partnership Assets. The credit and assets of the Partnership
shall be used solely for the benefit of the Partnership and shall not otherwise
be used to further the personal gain of any of the Partners. Title to and
ownership of all of the assets of the Partnership shall at all times be vested
in and stand in the name of the Partnership. The General Partner shall execute,
file and record such documents which may become necessary to reflect the
Partnership's ownership of such property in such public offices as may be
required.
12.5 MFA Activities. The provisions of Sections 12.2 and 12.3 shall
not apply to activities of the Medical Faculty Associates relating to the type
of health care services provided by the members of the Medical Faculty
Associates in their respective offices as of the Effective Date.
-28-
30
13. Transfer of Partnership Interests.
13.1. Restrictions on Transfer.
13.1.1. Restrictions on Transfers by UHS and the University.
Neither UHS nor the University may Transfer their respective Interests in the
Partnership unless the Partner desiring to Transfer its Interest under this
Section 13.1 obtains the prior written approval of the nontransferring Partner,
which approval shall not be unreasonably withheld.
13.1.2. Limitations on Rights of Assignees. Transfers of
interests in the Partnership under this Section 13.1 shall be, and any Person(s)
acquiring a Transferred Interest (an "Assignee") shall acquire such Transferred
Interest in the Partnership, subject to all of the terms and conditions of this
Agreement. A Transfer of an Interest in the Partnership shall not relieve the
transferring Partner of its duties and obligations to the Partnership unless the
General Partner agrees in writing to release the transferring Partner. An
Assignee shall not be admitted as a Partner (a "Substitute Partner") unless all
the requirements of Section 13.3 of this Agreement are satisfied. Absent
admission as a Substitute Partner, Assignees shall be permitted to receive only
the share of the Partnership's income, gain, deductions, credits and losses to
which the transferring Partner was previously entitled.
13.2. New Partners. New Partners may be admitted to the Partnership
upon satisfaction of the requirements of Sections 3.2 and 13.3 of this Agreement
and subject to the provisions of Section 7.3. As new Partners are admitted, any
adjustment in the Percentage Interests of existing Partners shall be made as
mutually agreed.
13.3. Substitution of Assignees and Admission of New Partners.
Subject to Section 13.1 hereof relating to Transfers of Interests and Section
13.2 hereof relating to the admission of new Partners, an Assignee may become a
Substitute Partner with all the rights and liabilities of any Partner under this
Agreement, and new Partners may be admitted to Partnership, if and only if (i)
the Assignee or new Partner executes and agrees to be bound by this Agreement in
the place of the transferring Partner or as a new Partner, as applicable; (ii)
in the event such Assignee is a corporation, partnership (general or limited),
trust or limited liability company, such Assignee or new Partner provides the
General Partner with evidence satisfactory to counsel for the Partnership of
such Assignee's or new Partner's authority to become a Partner under the terms
and conditions of this Agreement; (iii) the assignment or admission instruments,
documents or statements, if any, are prepared, executed, acknowledged, filed,
published and delivered as required by the Act or otherwise; (iv) the Assignee
or new Partner pays or obligates itself to pay any and all reasonable costs and
expenses, including attorneys' fees, incurred by the Partnership in connection
with such substitution or admission; and (v) the Partners and the Partnership
Board approve the admission of the new Partner, or the Assignee as a Substitute
Partner, under Section 7.3(c) of this Agreement, which approval shall not be
unreasonably withheld. The admission of such Assignee or new Partner shall not
cause a dissolution of the Partnership. In addition, this
-29-
31
Agreement and Exhibit 1.34 hereto shall be amended to reflect the admission of
new Partners and reflect the reallocation of the existing Partners' respective
Percentage Interests in the Partnership without the necessity of any existing
Partner's signature.
13.4. Effective Date of Assignment or Admission. For the purpose of
allocating Partnership income, gains, deductions, credits and losses, an
Assignee or new Partner shall be treated as a Partner on such date as consent of
the nontransferring Partners to such Transfer as is required under this Section
13 is obtained.
14. Dissolution, Liquidation and Termination of the Partnership.
14.1. Limitations. The Partnership may be dissolved, liquidated and
terminated only pursuant to the provisions of this Section 14. The Partners
hereby irrevocably waive any and all other rights they may have to cause a
dissolution of the Partnership or a sale or partition of any or all of its
assets.
14.2. Exclusive Causes. The following events, and only the
following events, shall cause the Partnership to be dissolved, liquidated and
terminated pursuant to the provisions of this Section 14.2:
14.2.1. Expiration. The expiration of the Term of the
Partnership.
14.2.2. Consent. The consent of all Partners to dissolve the
Partnership.
14.2.3. Unlawful Event. The occurrence of any event which
makes it unlawful for the business of the Partnership to be carried on, whether
by the Partners or the Partnership.
14.2.4. Sale of All or Substantially All of Partnership
Assets. The sale of all or substantially all of the assets of the Partnership
and the receipt of all cash proceeds from such sale.
14.2.5. Failure to Execute and Close. The failure of any of
the parties to this Agreement to execute any of the Ancillary Agreements or to
close the transactions contemplated by Section 3 of this Agreement by December
31, 1997 or by such later date mutually agreed to by the parties.
14.2.6. Expiration or Termination of Ground Lease. The
termination of the Ground Lease between the University and the Partnership due
to expiration or a breach by the University, unless otherwise approved by the
Partners.
-30-
32
14.2.7. Bankruptcy of a Partner. The Bankruptcy of any
Partner unless the Partnership is continued by the consent of the other
Partner(s).
14.2.8. Bankruptcy of the Partnership. The Bankruptcy of the
Partnership.
14.2.9. Judicial Dissolution. A decree of dissolution
rendered by a court of competent jurisdiction pursuant to District of Columbia
Code Section 41-482.
14.2.10. Breach by a Partner. A material breach of this
Agreement by any Partner; provided, however, that the Partner alleged to have
breached this Agreement shall have twenty (20) business days to cure such
alleged breach to the satisfaction of a majority in Percentage Interest of the
nonbreaching Partners.
14.3. Liquidating Trustee; Continuation of Business. Upon the
dissolution of the Partnership, the General Partner shall act as the
"Liquidating Trustee" of the Partnership. During the period of the dissolution,
liquidation and termination of the Partnership pursuant to the provisions of
this Section 14, the business of the Partnership may be continued by the
Liquidating Trustee to the extent necessary to allow an orderly winding up of
the Partnership's affairs, including without limitation, the liquidation of the
Partnership pursuant to the provisions of Section 14.4 below.
14.4. Liquidation of Partnership. Upon the dissolution of the
Partnership pursuant to the provisions of Section 14.2 and within a reasonable
time thereafter, the . Liquidating Trustee shall wind up the Partnership's
business and affairs in the following manner.
14.4.1. The Liquidating Trustee shall obtain and furnish an
accounting with respect to all Partnership accounts and the Capital Accounts of
each Partner and with respect to the Partnership's assets and liabilities and
its operations from the date of the last financial statements of the Partnership
to the date of its liquidation.
14.4.2. To the extent the Liquidating Trustee deems
appropriate, all material, equipment, and real and personal property of the
Partnership of any kind or nature may be sold.
14.4.3. The Liquidating Trustee shall pay the expenses of
liquidation and the debts of the Partnership from the Partnership's assets,
including debts owing to the Partners in the order of priority provided by law,
except the claims of secured creditors whose obligations will be assumed or
otherwise transferred upon the liquidation or Distribution of the Partnership's
assets.
-31-
33
14.4.4. The Liquidating Trustee shall ascertain the fair
market value by appraisal or other reasonable means of all assets of the
Partnership not sold and intended to be distributed to the Partners in
connection with the liquidation, and each Partner's Capital Account shall be
charged or credited, as the case may be, as if such properly had been sold at
such fair market value and the gain or loss realized thereby had been allocated
to and among the Partners.
14.4.5. Remaining proceeds shall be paid to the Partners who
have net positive balances in their Capital Accounts, as determined after taking
into account all Capital Account adjustments for the Partnership's Fiscal Year,
until all such balances have been reduced to zero or, in the event proceeds are
insufficient, pro rata on account thereof.
14.4.6. In the event any proceeds remain after Distributions
pursuant to Sections 14.4.1 through 14.4.5 above, such proceeds shall be
distributed to the Partners according to their respective Percentage Interests.
15. Miscellaneous.
15.1. Notices. Any and all notices or demands in connection with
this Agreement shall be in writing and served either personally, by certified
mail, return receipt requested, or by Federal Express or other reputable
overnight courier, at the respective addresses set forth opposite the signatures
of the Partners, or to such other addresses as any of them shall from time to
time designate. If served personally, service shall be conclusively deemed made
at the time of such service. If served by certified mail, service shall be
conclusively deemed made on the fourth business day after the deposit thereof in
the United States mail, postage prepaid, addressed pursuant to the provisions of
this Section 15.1. If served by Federal Express or other overnight reputable
courier, service shall be conclusively deemed made on the day after transmittal
thereof.
15.2. Hospital Name. Pursuant to the Trademark License Agreement
between the University and the Partnership, the Partnership shall continue to
use the name "The Xxxxxx Xxxxxxxxxx University Hospital" in connection with the
Hospital so long as it continues to operate the Hospital in the Washington
Circle area of the District of Columbia unless such name is required to be
changed to comply with applicable law. The University agrees that it shall not
license the name "The Xxxxxx Xxxxxxxxxx University Hospital" to, or use the name
in connection with, any entity, facility, or service without the consent of the
Partnership.
-32-
34
15.3. Attorneys' Fees. Should any party retain counsel to enforce
any of the provisions herein or protect its interest in any matter arising under
this Agreement, or to recover damages by reason of any alleged breach of any
provision of this Agreement, the losing party in any action pursued in a court
of competent jurisdiction (the formality of which is not legally contested)
shall pay to the prevailing party all costs, damages, and expenses incurred by
the prevailing party, including, without limitation, attorneys' fees and costs
incurred in connection therewith.
15.4. Interpretation. No provision of this Agreement is to be
interpreted for or against any party because that party or that party's legal
representative drafted such provision.
15.5. Waiver. No breach of any provision of this Agreement may be,
waived except in writing. Waiver of any one breach of any provision of this
Agreement shall not be deemed to be a waiver of any other breach of the same or
any other provision of this Agreement.
15.6. Severability. In the event that any covenant, condition or
other provision contained in this Agreement is held to be invalid, void or
illegal by any court of competent jurisdiction, the same shall be deemed
severable from the remainder of this Agreement and shall in no way affect,
impair or invalidate any other covenant, condition or other provision contained
in this Agreement so long as severance of the invalid provision does not
materially alter the rights and obligations of the parties. If such condition,
covenant or other provision shall be deemed invalid due to its scope or breadth,
such covenant, condition or other provision shall be deemed valid to the extent
of the scope or breadth permitted by law.
15.7. Additional Documents. In addition to the documents and
instruments to be delivered as provided in this Agreement, each of the parties
shall, from time to time at the request of the other parties, execute and
deliver to the other parties or the Partnership such other documents and shall
take such other action as may be reasonably required to carry out more
effectively the terms of this Agreement.
15.8. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the District of Columbia.
15.9. Headings. Paragraph titles or captions contained in this
Agreement are inserted as a matter of convenience and for reference purposes
only, and in no way define, limit, interpret, extend or describe the scope of
this Agreement or any provision of this Agreement.
15.10. Survival of Obligations. All indemnities, and continuing
agreements and covenants contained or referred to in this Agreement shall
survive the execution and delivery
-33-
35
of this Agreement, and it shall not be a condition precedent to any indemnity
set forth herein that the indemnified party shall have made any payment on
account of any claim, loss, damage, obligation, liability, deficiency, penalty,
cost or expense indemnified against herein.
15.11. Amendment. The Partners acknowledge that the exhibits to
this Agreement will be finalized subsequent to the execution of this Agreement.
Subject to the provisions of Section 7.3, this Agreement may be amended by the
Partnership Board.
15.12. Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties and their respective
representatives, successors and permitted assigns.
15.13. Third Party Beneficiaries. Nothing in this Agreement shall
be for the benefit of anyone not a party to this Agreement.
15.14. Incorporation. All exhibits attached to this Agreement are
incorporated herein by this reference.
15.15. Execution in Counterparts. This Agreement may be executed in
two (2) or more counterparts, each of which shall be an original instrument, but
all of which shall constitute one and the same agreement.
15.16. Entire Agreement. This Agreement, including any exhibits,
supersedes all previous written or oral agreements between the parties hereto
with respect to the subject matter hereof. Furthermore, upon the attachment of
the last exhibit to be attached to this Agreement, the Letter of Intent, dated
March 25, 1997, between the University and Universal Health Services, Inc.,
shall be terminated and the parties thereto shall have no further rights or
obligations thereunder.
-34-
36
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
UHS of D.C., INC
000 Xxxxx Xxxxx Xxxx By: [SIG]
X.X. Xxx 00000 ------------------------------
King of Prussia, PA 19046-0958 Xxxxxxx X. Xxxxxx
Its:
------------------------------
Vice President
THE XXXXXX XXXXXXXXXX UNIVERSITY
0000 X Xxxxxx, X.X. By: [SIG]
Xxxxx 000, Xxxx Xxxx ------------------------------
Xxxxxxxxxx, XX 00000 Xxxxx X. Xxxx
Its: Vice President and Treasurer
-35-
37
Exhibit 1.35
PERCENTAGE INTERESTS OF THE PARTNERS
GENERAL PARTNER
Name Interest
UHS 1%
LIMITED PARTNERS
Name Interest
UHS 79%
The University 20%
-36-
38
Exhibit 7.2.3
INITIAL BOARD OF DIRECTORS
-37-
