AGREEMENT OF LIMITED PARTNERSHIP OF LAMAR SURGERY CENTER, L.P.
Exhibit 3.146
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
XXXXX SURGERY CENTER, L.P.
THE PARTNERSHIP INTERESTS ISSUED UNDER THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE’S SECURITIES LAWS, AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF ABSENT SUCH REGISTRATION UNLESS, IN THE OPINION OF COUNSEL TO
THE GENERAL PARTNER, SUCH REGISTRATION IS NOT REQUIRED.
AGREEMENT OF LIMITED PARTNERSHIP OF
XXXXX SURGERY CENTER, L.P.
XXXXX SURGERY CENTER, L.P.
TABLE OF CONTENTS
I. DEFINITIONS |
1 | |||
II. ORGANIZATION |
4 | |||
2.1. Formation |
4 | |||
2.2. Name |
5 | |||
2.3. Fictitious Business Name |
5 | |||
III. PRINCIPAL PLACE OF BUSINESS |
5 | |||
IV. BUSINESS |
5 | |||
V. TERM |
5 | |||
VI. CAPITAL CONTRIBUTION AND STATUS |
5 | |||
6.1. Capital Contribution of the General Partner |
5 | |||
6.2. Contribution of Original Limited Partner to Partnership Capital |
5 | |||
6.3. Capital Contribution of the Limited Partners |
5 | |||
6.4. Limited Liability |
6 | |||
6.5. Role of Limited Partners |
6 | |||
6.6. Withdrawal of Capital Contributions |
6 | |||
6.7. Assessments |
6 | |||
6.8. Loans |
6 | |||
VII. EXPENSES OF THE PARTNERSHIP |
6 | |||
7.1. Reimbursement of Expenses Incurred by the General Partner |
6 | |||
7.2. Organizational and Offering Expenses |
6 | |||
7.3. Compensation Receivable By the General Partner and Certain of its Affiliates |
6 | |||
7.3.1. Management Fee |
7 | |||
7.3.2. Facility Lease |
7 | |||
7.3.3. Equipment Lease |
7 | |||
7.3.4. Employee Lease Agreement |
7 | |||
7.3.5. Contribution Agreement and Assumption Agreement |
7 | |||
7.3.6. Cash Management and Revolving Credit Loan Agreement |
7 | |||
VIII. ALLOCATION OF INCOME AND LOSSES; CASH DISTRIBUTIONS |
8 | |||
8.1. Capital Accounts |
8 | |||
8.2. Allocation of Net Income and Net Losses |
8 | |||
8.3. Distribution of Available Cash Flow |
8 | |||
8.4. Curative Allocations |
8 | |||
8.5. Section 704(c) Allocations Code |
8 | |||
8.6. Allocations in Case of Transfers |
9 | |||
8.7. Consequences of Distributions |
9 | |||
8.8 Interpretation |
9 | |||
IX. RIGHTS, POWERS AND OBLIGATIONS OF THE GENERAL PARTNER |
9 | |||
9.1. Powers |
9 | |||
9.2. Independent Activities |
10 |
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9.3. Duties |
10 | |||
9.4. Advisory Board |
10 | |||
9.5. Certain Limitations |
10 | |||
9.6. Tax Matters Partner |
11 | |||
X. TRANSFER OF INTERESTS IN THE PARTNERSHIP |
12 | |||
10.1. In General |
12 | |||
10.2. Substituted Limited Partners |
13 | |||
10.3. Purchase of Units by the General Partner |
13 | |||
XI. SPECIAL PROVISIONS |
14 | |||
11.1. Terminating Event |
14 | |||
11.2. Subsequent Legislation |
14 | |||
11.3. Restriction on Ownership |
15 | |||
11.4. Repurchase Event |
15 | |||
11.5. Medical Malpractice Insurance |
15 | |||
XII. RESIGNATION OR REMOVAL OF THE GENERAL PARTNER; ELECTION OF SUCCESSOR GENERAL
PARTNER |
15 | |||
12.1. Resignation of the General Partner |
15 | |||
12.2. Removal of the General Partner |
16 | |||
12.3. Notice of Resignation or Removal |
16 | |||
12.4. Liability of the General Partner after Resignation or Removal |
16 | |||
12.5. Continuing Interest of the General Partner after Resignation or Removal |
16 | |||
12.6. Election of Successor General Partner |
16 | |||
XIII. DISSOLUTION AND WINDING UP OF THE PARTNERSHIP |
16 | |||
13.1. Dissolution of the Partnership |
16 | |||
13.2. Winding Up of the Partnership |
17 | |||
13.3. Election of Liquidating Trustee |
17 | |||
XIV. BOOKS OF ACCOUNT, ACCOUNTING, REPORTS, FISCAL YEAR, BANKING AND TAX ELECTION |
17 | |||
14.1. Books of Account |
17 | |||
14.2. Financial Reports |
17 | |||
14.3. Banking |
18 | |||
14.4. Tax Election |
18 | |||
14.5. Tax Returns |
18 | |||
XV. POWER OF ATTORNEY |
18 | |||
15.1. Appointment of Attorney-in-Fact |
18 | |||
15.2. Qualification in Other States |
18 | |||
15.3. Effect of Power |
19 | |||
XVI. LIABILITY OF THE GENERAL PARTNER |
19 | |||
16.1. Return of Capital Contributions |
19 | |||
16.2. No Liability for Actions |
19 | |||
16.3. Indemnification |
19 | |||
XVII. MISCELLANEOUS |
19 | |||
17.1. Notices |
19 | |||
17.2. Section Captions |
20 | |||
17.3. Severability |
20 | |||
17.4. Amendments |
20 |
ii
17.5. Meeting and Voting by Written Consent |
21 | |||
17.6. Manner of Voting |
21 | |||
17.7. Right to Rely Upon the Authority of the General Partner |
22 | |||
17.8. Waiver of Action for Partition |
22 | |||
17.9. Counterpart Execution |
22 | |||
17.10. Parties in Interest |
22 | |||
17.11. Integrated Agreement |
22 | |||
17.12. Arbitration; Venue; Services of Process |
22 | |||
17.13. Waiver |
22 | |||
17.14. Construction |
23 |
iii
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
XXXXX SURGERY CENTER, L.P.
Northwest Medical Center-Winfield, LLC, a Delaware limited liability company, with its
principal office located at 000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000 (the “General
Partner”), and Xxxxxxx Xxxxxxxx, a Tennessee resident, whose business address is 000 Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, as the original limited partner (the “Original Limited
Partner”), and all of the persons who may become limited partners under the terms of
this Agreement of Limited Partnership (each a “Limited Partner” and collectively the “Limited
Partners”) do hereby certify that a Certificate of Limited Partnership was filed with the Secretary
of State of Delaware on October 30, 2003, and this Agreement of Limited Partnership has been
executed and a limited partnership has been formed under the Act (as defined below) on the terms
set forth herein.
The parties hereto agree as follows:
I. DEFINITIONS
When used in this Agreement of Limited Partnership, the following terms shall have the
meanings set forth below.
1.1. “Act” means the Delaware Revised Uniform Limited Partnership Act, being
chapter 17 of Title 6 of the Delaware Code, as amended from time to time.
1.2. “Affiliate” means (i) any person directly or indirectly controlling,
controlled by or under common control with another person; (ii) any person owning or
controlling 10% or more of the outstanding voting securities of such other person; (iii)
any officer, director or partner of such person; and (iv) if such other person
is an officer, director or partner, any company for which such person acts in any such capacity,
and, in the case of a Limited Partner, other than the General Partner, also includes (a) such
Limited Partner’s Family Members, (b) any trust for the benefit of such Limited Partner or a Family
Member of such Limited Partner, (c) any Affiliate of a Family Member of a Limited Partner and (d)
any entity through or to which the Limited Partner provides medical services.
1.3. “Agreement” means this Agreement of Limited Partnership, as amended from time to
time.
1.4. “Available Cash Flow” means all cash funds of the Partnership on hand at the end of each
calendar quarter of each year, other than proceeds resulting from the winding up of the
Partnership, less (i) provision for payment of all outstanding and unpaid current cash
obligations of the Partnership at the end of such quarter (including those which are in dispute)
and (ii) provisions for adequate reserves for reasonably anticipated cash expenses and
contingencies (which may include Partnership indebtedness) as determined by the General Partner,
but without deduction for depreciation or any other non-cash expenses.
1
1.5. “Capital Account” means, as to each Partner, an account which is increased by his
Capital Contribution and allocations of Net Income and items thereof to him and decreased by
distributions and allocations of Net Loss and items thereof to him and otherwise maintained in
accordance with the Code and Treasury Regulation Section 1.704-1 as determined necessary by the
General Partner so that such allocations in Article VIII of this Agreement are respected for
federal income tax purposes.
1.6. “Capital Contribution” means of, or in respect of, any Partner or of such Partner means
the amount of all cash, notes, and the fair market value of other property, tangible or
intangible, contributed by such Partner to the capital of the Partnership.
1.7. “Center” means the ambulatory surgery center located at 00000 Xxxxxxx 00 Xxxxx,
Xxxxxxxxx, Xxxxxxx 00000 which is operated by the Partnership.
1.8. “Code” means the United States Internal Revenue Code of 1986, as amended from time to
time.
1.9. “Competing Business” shall mean any health care business which provides a facility in
which surgical procedures are performed and shall include, without limitation, a specialty
hospital, hospital or ambulatory or other type of surgery center; provided, the private medical
practice of any Limited Partner will not be a Competing Business as long as 80% of the Limited
Partner’s professional services are rendered through such practice and such practice only performs
surgeries which do not require a separate license, the presence of an anesthesiologist or involve
conscious sedation.
1.10. “Disability” means a physical or mental impairment that incapacitates a Limited Partner
or prevents or interferes with a Limited Partner engaging in the practice of medicine, either
full-time or part-time, in the State of Alabama; provided, however, that such Limited Partner shall
consent to a physical, upon the request of the General Partner, to make such determination.
1.11. “Equipment” means the medical equipment, furniture and fixtures with an initial book
value of approximately $320,000 located at the Center and leased to the Partnership by the General
Partner.
1.12. “Family Member” means a person’s spouse, siblings, ancestors and lineal descendents, as
well as the spouse of each, and such person’s spouse.
1.13. “Fiscal Year” shall mean the fiscal year of the Partnership, which shall be the calendar
year.
1.14. “Formula Value” means four times the Trailing EBITDA less Partnership debt, other than
current accounts payable, determined in accordance with GAAP, for the most recently ended Fiscal
Year; provided, however, that, if, at the time the Formula Value is being calculated,
the Partnership has been in existence for less than one Fiscal Year, the Formula Value shall be
four times the annualized EBITDA less Partnership debt, other than current accounts payable,
determined in accordance with GAAP using the months ended at the time the Formula Value is being
calculated.
1.15. “GAAP” shall mean generally accepted accounting principles as determined by the General
Partner, applied on a consistent basis.
1.16. “General Partner” means the party listed as such in the initial paragraph of this
Agreement, and any successor therefor elected as provided in Section 12.6 of this Agreement.
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1.17. “Limited Partners” means the persons (including substituted Limited Partners), other
than the Original Limited Partner, who are, from time to time, admitted to the Partnership as
limited partners (pursuant to the provisions of the Act and Section 10.2 of this Agreement). The
names, business or residence addresses and taxpayer identification numbers, the number of Units
owned by each, and the Capital Contribution of each Limited Partner appear as Annex A to this
Agreement, as amended from time to time.
1.18. “Limited Partnership Percentage” in respect of any Limited Partner means that fraction,
expressed as a percentage, having as its numerator the number of Units owned by such Limited
Partner and having as its denominator the total number of Units owned by all Limited Partners.
1.19. “Net Book Value” shall mean the book value of the Partnership’s assets (determined
after depreciation) less the Partnership’s liabilities as determined by the General Partner in
accordance with GAAP.
1.20. “Net Income” and “Net Loss” mean, for each Fiscal Year or other period, an amount equal
to the Partnership’s taxable income or loss (including but not limited to any gain or
loss to the Partnership from any sale or disposition of all or any portion of the assets of the
Partnership) for such year or period, determined in accordance with Code Section 703(a) (for this
purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to
Code Section 703(a)(1) shall be included in taxable income or loss), with the following
adjustments:
(i) Expenditures described in Section 705(a)(2)(B) of the Code (including amounts treated as
Section 705(a)(2)(B) expenditures under Treasury Regulation Section 1.704-1(b)(2)(iv)(1)) shall be
included as an expense in the determination of Net Income and Net Loss;
(ii) Income exempt from taxation shall be included in the determination of Net
Income and Net Loss;
(iii) If the book value of property is adjusted pursuant to Treasury Regulation Sections
1.704-1(b)(2)(iv)(f) or (e), such adjustment should be taken into account as gain or loss from the
disposition of an asset and, in lieu of depreciation as calculated for federal income tax purposes,
subsequently such deductions shall be computed in accordance with Treasury Regulation Sections
1.704-1(b)(2)(iv)(g)(3) or 1.704-3(d)(2), as the case may be;
(iv) Subsequent calculating of gain or loss resulting from the disposition of an asset for
federal income tax purposes shall be computed by reference to its book value as
reflected in Partners’ Capital Accounts rather than its adjusted tax basis; and
(v) Any items specially allocated shall not be taken into account in determining Net Income
and Net Loss.
1.21. “Original Limited Partner” means the party listed as such in the initial paragraph of
this Agreement.
1.22. “Partners” means collectively the General Partner and the Limited Partners.
1.23. “Partnership” means the limited partnership formed pursuant to a Certificate of Limited
Partnership of Xxxxx Surgery Center, L.P. and governed by this Agreement.
1.24. “Partnership Percentage” means 1% per Unit held by a Limited Partner to the Limited
Partners and the remainder to the General Partner.
3
1.25. “Partnership Return” means the U.S. Partnership Information Return of Income of the
Partnership.
1.26. “Qualified Owner” means the General Partner and its Affiliates and physicians licensed
in Alabama who utilize the Center in the manner required by the General Partner in its discretion
and in accordance with applicable law as an extension of their medical practice.
1.27. “Retirement” means an individual Limited Partner who attains the age of 62 and who is
no longer engaged in the practice of medicine, either full-time or part-time, in the State of
Alabama.
1.28. “Tax Matters Partner” means the Partner designated as such by this Agreement, which Tax
Matters Partner shall have all of the duties and responsibilities designated by the Code and the
rules and regulations applicable thereto. The General Partner shall be the Tax Matters Partner.
1.29. “Terminating Event” means any of the following:
(i) A Limited Partner has breached the terms and conditions of this Agreement, as
determined in the reasonable discretion of the General Partner, including without limitation,
violating the restrictions with respect to ownership of an interest in a Competing Business as set
forth in Article XI and the transfer restrictions set forth in Article X;
(ii) A Limited Partner has disrupted the affairs of the Partnership or has acted
adversely to the best interests of the Partnership, as determined in the reasonable
discretion of the General Partner; or
(iii) A Limited Partner ceases to be a Qualified Owner, as determined by the General Partner,
or fails to comply with the General Partner’s request for information to determine if such Limited
Partner is a Qualified Owner.
1.30. “Trailing EBITDA” means the earnings before incomes taxes, interest, depreciation and
amortization of the Partnership for the most recently ended Fiscal Year, all of which
components shall be determined by the General Partner in accordance with GAAP; provided, however,
that all leases shall be treated as operating leases.
1.31. “Treasury Regulation Section 1.704-1” means the Temporary and Final Treasury Regulations
promulgated under Section 704(b) of the Code. The portions of this Agreement that are designed to
comply with Treasury Regulation Section 1.704-1 shall be interpreted to comply with the principles
of such Treasury Regulation, including any amended or successor regulations thereto.
1.32. “Unit” means an interest in the capital of the Partnership in an amount determined by
the General Partner. The authorized number of Units of the Partnership is 49.
II. ORGANIZATION
2.1. Formation. The parties hereby form a limited partnership under and pursuant to
the Act. If required by the Act or if the General Partner deems it appropriate to do
so, the General Partner shall promptly cause this Agreement to be filed for record in the Office of
the Secretary of State of Delaware, and in such other places as necessary to protect the status of
the Partnership as a limited partnership and as otherwise required by law. No copies of this
Agreement or any amendment hereto need be delivered to the Limited Partners, unless requested by a
Limited Partner pursuant to Section 17-305 of the Act.
4
2.2. Name. The name of the Partnership is Xxxxx Surgery Center, L.P. The business of
the Partnership may be conducted under any name chosen by the General Partner, and the General
Partner may in its sole discretion from time to time change the name of the
Partnership.
2.3. Fictitious Business Name. The General Partner shall execute and promptly cause
to be filed and published in the applicable jurisdictions, a Fictitious Business Name
Statement with respect to the name of the Partnership and with respect to any other fictitious
names used by the Partnership in the operation of its business if required by applicable law.
III. PRINCIPAL PLACE OF BUSINESS
The registered agent and registered office of the Partnership shall be The
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The principal place of
business of the Partnership in Alabama shall be located at 00000 Xxxxxxx 00 Xxxxx, Xxxxxxxxx,
Xxxxxxx 00000 or at such other place as the General Partner may from time to time designate by
notice to the Limited Partners.
IV. BUSINESS
The business to be conducted by the Partnership shall be to lease or
sublease and operate an ambulatory surgery center and to carry on any and all
activities necessary, proper, convenient, or advisable in connection therewith.
V. TERM
The term of the Partnership commenced on the date the Certificate of Limited
Partnership was filed in the Office of the Secretary of State of Delaware and shall continue until
December 31, 2099, unless terminated sooner pursuant to Section 13.1 of this Agreement.
VI. CAPITAL CONTRIBUTION AND STATUS
6.1. Capital Contribution of the General Partner. In consideration for its interest in
the Partnership, the General Partner will transfer intangible assets and certain other current
assets associated with the operation of the Center to the Partnership, in accordance with Section
7.3.5 hereof.
6.2. Contribution of Original Limited Partner to Partnership Capital. The Original
Limited Partner shall contribute $10 in cash to the capital of the Partnership upon the formation
of the Partnership and shall be a Limited Partner solely to facilitate the formation
of the Partnership. Such contribution shall be returned to him in cash on the day of
the admission of any other person or persons as a Limited Partner or Limited Partners, at which
time the Original Limited Partner shall cease to be a Limited Partner. The General Partner and each
Limited Partner hereby consent to the withdrawal by the Original Limited Partner of his $10
contribution pursuant to this Section 6.2, and hereby waive and release the Original Limited
Partner from any right, claim or action that they or any of them may have against him
for such withdrawal.
6.3. Capital Contribution of the Limited Partners. Each Limited Partner, other than
the Original Limited Partner, shall make a Capital Contribution to the Partnership per Unit in the
amount determined by the General Partner to be the fair market value per Unit to be
owned by such Limited Partner. Such Capital Contribution shall be made in cash in full
upon subscription. No Limited Partner shall receive interest on his Capital
Contribution.
5
6.4. Limited Liability. A Limited Partner shall not be bound by, or personally
liable for, the expenses, liabilities or obligations of the Partnership, except as provided in the
Act. Notwithstanding the foregoing, in the event that the General Partner becomes liable for state
or federal income or withholding taxes on income allocated to one or more Limited Partners in
accordance with this Agreement, each Limited Partner whose income creates such tax liability shall
pay to the General Partner or to the appropriate taxing authority the amount of tax, interest or
penalties so assessed. If the General Partner must take or threaten legal action to receive such
payment, such Limited Partner shall also reimburse the General Partner for reasonable attorneys’
fees and other costs.
6.5. Role of Limited Partners. Except as otherwise provided in this Agreement and the
Act, a Limited Partner shall take no part in or interfere in any manner with the conduct or
control of the business of the Partnership and shall have no right or authority to act for or bind
the Partnership.
6.6. Withdrawal of Capital Contributions. No Limited Partner, other than the Original
Limited Partner, shall have the right to withdraw or reduce his Capital Contribution without the
consent of the General Partner. No Limited Partner shall have the right to demand or receive
property other than cash in return for his Capital Contribution, and no Limited Partner, other
than the Original Limited Partner, shall have priority over any other Limited Partner, either as
to the return of Capital Contributions or as to income, losses or distributions.
6.7. Assessments. Partners will not be subject to additional assessments for Capital
Contributions to the Partnership.
6.8. Loans. The Partnership will participate in the Cash Management System (as hereinafter
defined) pursuant to the Cash Management and Loan Agreement (as hereinafter defined). In addition
to any loans the Partnership may obtain thereunder, the General Partner or any Affiliate thereof
may, but is not obligated to, loan or cause to be loaned to the Partnership such
additional sums as the General Partner deems appropriate or necessary for the conduct of the
Partnership’s business. Any such additional Loans made by any Partner (including the General
Partner), or any Affiliate thereof, shall be upon commercially reasonable terms and conditions. If
any Partner (including the General Partner), or any Affiliate thereof, loans its own money to the
Partnership, such loans shall be at rates per annum and on terms as to security and other charges
and fees at least as favorable to the Partnership as those negotiated by unaffiliated lenders on
comparable loans for the same purpose in the same locale.
VII. EXPENSES OF THE PARTNERSHIP
7.1. Reimbursement of Expenses Incurred by the General Partner. The General Partner
may charge the Partnership for all direct expenses incurred by it or its Affiliates in connection
with the Partnership’s business including legal, accounting, record keeping and data processing
services. The General Partner may also charge the Partnership with all allocable portions of direct
expenses incurred in connection with Partnership activities, such allocation to be determined on
any basis selected by the General Partner consistent with good accounting practice.
7.2. Organizational and Offering Expenses. The Partnership will pay all expenses
incurred in connection with the organization of the Partnership and obtaining its debt and equity
capital.
7.3. Compensation Receivable By the General Partner and Certain of its Affiliates. The
General Partner and certain of its Affiliates will receive from the Partnership on the terms and
conditions hereinafter set forth certain fees and compensation, which shall be in addition
6
to the interest of the General Partner in the Net Income, Net Loss, and Available Cash Flow of
the Partnership. Each Limited Partner, upon his execution of this Agreement, hereby approves,
consents to, and ratifies all of the arrangements pursuant to which the fees described below are to
be paid.
7.3.1. Management Fee. The Partnership shall enter into a Management Agreement
(“Management Agreement”) with the General Partner. As compensation for its services in
managing and supervising the conduct of the business and administering the affairs of the
Partnership pursuant to the Management Agreement, the Partnership shall pay to the General
Partner an annual fee equal to 6% of the Partnership’s net revenues from the operation of the
Center (in general, billed revenues less contractual adjustments excluding any reduction for
bad debts) (the “Management Fee”). This Management Fee is in addition to the General
Partner’s right to be reimbursed for all reasonable direct costs incurred in performing such
services as set forth elsewhere in the Management Agreement. No part of such Management Fee
shall be considered or deemed a distribution to the General Partner but, rather shall be
considered and deemed a guaranteed amount payable for current services rendered to the
Partnership. The General Partner shall also be entitled to monthly reimbursement for the
direct expenses it incurs in managing the Center.
7.3.2. Facility Sublease. The Center will be subleased from the General Partner
who will sublease the facility comprised of the Center and a rural health clinic
from Xxxxx Healthcare Services, Inc., an Alabama corporation.
7.3.3. Equipment. The General Partner will lease the Equipment to
the Partnership pursuant to an Equipment Lease. Any equipment purchases by
the Partnership may be funded, at the sole discretion of the General Partner, by the
Partnership using excess cash flows.
7.3.4. Employee Lease Agreement. The Center’s staff will be employed
by the General Partner and leased to the Partnership pursuant to an employee lease
agreement (the “Employee Lease Agreement”). The General Partner will have the
right to exercise control over all personnel and shall be responsible for hiring,
firing and supervising the personnel. The Partnership shall indemnify and hold the General
Partner harmless for any claims arising from the activities of personnel who are acting under
the Partnership’s supervision. The Partnership shall pay the General Partner a fee equal
to the General Partner’s cost of employing the personnel, including, without
limitation, wages, payroll taxes and fringe benefits, including all reasonable fringe benefits
which are or may become standard for personnel at the Center (such as health insurance,
disability insurance, life insurance, retirement plans, employee stock option plans, employee
stock purchase plans, seminar and related travel expenses and professional dues).
7.3.5. Contribution Agreement and Assumption Agreement. In exchange for its
interest as General Partner, the General Partner will transfer intangible assets
and certain other current assets associated with the operation of the Center to the
Partnership pursuant to a Contribution Agreement.
7.3.6. Cash Management and Revolving Credit Loan Agreement. The Partnership will
participate in the cash management system (the “Cash Management System”) of LifePoint
Hospitals Holdings, Inc. and/or its affiliates (“LifePoint”), an Affiliate of the General
Partner, pursuant to a cash management and revolving credit loan agreement (the “Cash
Management and Loan Agreement”). Also pursuant to the Cash Management and Loan Agreement, upon
the General Partner’s request on behalf of the Partnership, LifePoint may provide the
Partnership with revolving credit loans in the aggregate amount of up to
7
$1,000,000 (the “Revolving Credit Loans”). Any such Revolving Credit Loans will bear
interest at a rate of 5% above the prime rate, as established from time to time, and the
outstanding principal and interest will be repaid from time to time. The General Partner
may, at its sole discretion, determine the base interest rate on Revolving Credit Loans
from time to time. All funds deposited by or on behalf of the Partnership in any account
with the Cash Management System will first be applied automatically to interest and then to
the outstanding principal of the Revolving Credit Loans. Once the Revolving Credit Loans
have been reduced to zero, all balances of the Partnership in any account with the Cash
Management System will earn interest at the prime rate as published in the Wall Street
Journal. In addition to the Revolving Credit Loans, if the Partnership requires additional
capital, an Affiliate of the General Partner may provide that capital on commercially
reasonable terms.
VIII. ALLOCATION OF INCOME AND LOSSES; CASH DISTRIBUTIONS
8.1. Capital Accounts. The Partnership will maintain a Capital Account for
each Partner.
8.2. Allocation of Net Income and Net Losses.
(a) Subject to special allocations determined necessary by the General Partner for the
allocations of income and loss to be respected for federal income tax purposes pursuant to Treasury
Regulation Section 1.704-1(b) and 1.704-2 (i.e., loss limitations, qualified income offset, minimum
gain chargebacks, and non-recourse deductions), all Net Income and Net Loss of the Partnership,
except those arising on the Partnership’s liquidation or the sale of all or substantially all of
its assets, and all items of income, gain, deduction and loss entering into the determination of
such Net Income and Net Loss shall be allocated among the Partners in accordance with their
Partnership Percentage;
(b) Upon the Partnership’s liquidation, or sale of all, or substantially all of its assets,
all items of gain, income, deduction and loss will be specifically allocated among the Partners so
as to cause each Partner’s ending Capital Account balance, as a percentage of all Capital Accounts
balance, to equal his Partnership Percentage.
8.3. Distribution of Available Cash Flow. The General Partner shall distribute the
Available Cash Flow of the Partnership to the Partners in accordance with their Partnership
Percentage. Such distributions shall be made at such time or times as the General Partner shall
deem practicable.
8.4. Curative Allocations. If any special allocation of gain, income, loss or
deduction is made pursuant to Treasury Regulation Sections 1.704-l(b) or 1.704-2 (the “Regulatory
Allocations”) with respect to one or more Partners, then gross income, gain, loss and deduction
shall be allocated by the General Partner to the extent permitted by Treasury Regulation Section
1.704-1 and Code Section 704 and related provisions, 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 no
Regulatory Allocations were made.
8.5. Section 704(c) Allocations Code. Income, gain, loss and deduction as computed for
income tax purposes with respect to Partnership property subject to Code Section 704(c) and/or
Treasury Regulation Sections 1.704-1(b)(2)(iv)(f) shall be allocated in accordance with said Code
Section and/or Treasury Regulation Sections 1.704-1(b)(4)(i), as the case may be, using any
reasonable method permitted or Treasury Regulation Sections 1.704-3 that is selected by the
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General Partner. Allocations made pursuant to this paragraph shall not affect the
Capital Account of the Partners.
8.6. Allocations in Case of Transfers. Except as provided below, Net Income, Net Loss
and items of income, gain, deduction and loss allocable to any Partner whose Units have been
transferred, in whole or in part, during any Fiscal Year shall be allocated among the persons who
were the holders of such Units during such year in proportion to their respective holding periods,
without separate determination of the results of Partnership operations during such periods. Net
Income, Net Loss, and items of income, gain, deduction and loss, attributable to a sale or other
disposition of all or any portion of the assets of the Partnership shall be allocated to those
Partners who were Partners at the time of the occurrence of the disposition giving rise to such Net
Income, Net Loss and items of income, gain and loss.
8.7. Consequences of Distributions. Upon the determination to distribute funds in any
manner expressly provided in this Article VIII, made in good faith, the General Partner shall incur
no liability on account of such distribution, even though such distribution may have resulted in
the Partnership retaining insufficient funds for the operation of its business which insufficiency
resulted in loss to the Partnership or necessitated the borrowing of funds by the Partnership.
8.8 Interpretation. The provisions of this Article VIII are intended to comply with
Treasury Regulation Sections 1.704-l(b), 1.704-2 and 1.704-3 and any successor regulations, and
shall be defined and interpreted consistently with this intention.
IX. RIGHTS, POWERS AND OBLIGATIONS OF THE GENERAL PARTNER
9.1. Powers. The management and control of the Partnership and its business and
affairs shall rest exclusively with the General Partner, which shall have all the rights and powers
that may be possessed by general partners pursuant to the Act, and such additional rights and
powers as are otherwise conferred by law or are necessary, advisable or convenient to the discharge
of its duties under this Agreement. Without limiting the generality of the foregoing, the General
Partner may, at the cost, expense and risk of the Partnership:
9.1.1. Spend the capital and net income of the Partnership in the exercise of any rights
or powers possessed by the General Partner hereunder;
9.1.2. Purchase, hold, lease, manage and operate the Center, lease the Equipment,
otherwise conduct the business of the Partnership and enter into agreements containing such
terms, provisions and conditions as the General Partner in its discretion shall approve;
9.1.3. Purchase from or through others contracts of liability, casualty and other
insurance which the General Partner deems advisable for the protection of the Partnership,
including the amount of any related deductibles, or for any purpose convenient or beneficial
to the Partnership;
9.1.4. Incur indebtedness in the ordinary course of business or indebtedness which
refinances any indebtedness incurred by the Partnership;
9.1.5. Sell, exchange or otherwise dispose of, upon such terms and conditions as the
General Partner may deem advisable, appropriate or convenient, any of the assets of the
Partnership;
9.1.6. Invest in short-term debt obligations (including those issued or guaranteed by
federal and state governments and their agencies and certificates of deposit of commercial
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banks, savings banks, or savings and loan associations) and “money market” accounts of
commercial banks and “money market” mutual funds, such funds as are temporarily not
required for the purposes of the Partnership’s operations;
9.1.7. Delegate all or any of its duties hereunder and, in furtherance of any such
delegation, appoint, employ or contract with any person (including Affiliates) for the
transaction of the business of the Partnership, which persons may, under the supervision of
the General Partner, act as consultants, accountants, brokers, escrow agents, leasing
agents, or in any other capacity deemed by the General Partner necessary or desirable, and
pay appropriate fees to any of such persons; and
9.1.8. Issue securities from time to time in one or more series, which securities may
be preferred to the Units as to dividends and distribution of assets of the Partnership on
dissolution, as hereinafter provided, and shall have such distinctive designations as may be
stated in the amendment to this Agreement providing for the issue of such securities adopted
by the General Partner. In the amendment providing for the issuance of securities of each
particular series, the General Partner is hereby expressly authorized and empowered to
fix the number of Units or shares constituting such series and to fix
the relative rights and preferences of the Units or shares of the series so
established to the full extent allowable by law, except as such rights and
preferences are fixed herein.
9.1.9. Elect to revalue the Partnership’s property for tax purposes as permitted in
Treasury Regulation Section 1.704 and determine such value.
9.2. Independent Activities. Except as specifically provided herein, the General
Partner may, notwithstanding the existence of this Agreement, engage in whatever
activities it chooses, whether or not the same be competitive with the Partnership, without having
or incurring any obligation to offer any interest in such activities to the Partnership or any
party hereto, and each Limited Partner hereby waives, relinquishes and renounces any such right or
claim of participation.
9.3. Duties. The General Partner shall manage and control the Partnership, its
business and affairs to the best of its ability and shall use commercially reasonable efforts to
carry out the business of the Partnership. The General Partner shall devote itself to the business
of the Partnership to the extent that it, in its discretion, deems necessary for the efficient
carrying on thereof. The General Partner shall act as a fiduciary with respect to the safekeeping
and use of the funds and assets of the Partnership.
9.4. Advisory Board. The Partnership shall establish an advisory board (the “Advisory
Board”) comprised of up to four physicians appointed by the General Partner. Physicians appointed
to the Advisory Board are not required to be Limited Partners. The members of the Advisory Board
will serve for one year or until their successor is appointed by the General Partner. The Advisory
Board will be responsible for developing utilization, peer review and quality assurance standards
for the Center, reviewing utilization of Center services and generally making recommendations to
the General Partner regarding the services provided at the Center. The Advisory Board shall take no
action that would subject any Limited Partner members to liability as general partners of the
Partnership.
9.5. Certain Limitations.
9.5.1. Without obtaining the consent of Limited Partners holding an aggregate Limited
Partnership Percentage greater than 50%, the General Partner shall not:
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9.5.1.1. Act in contravention of this Agreement or the Certificate of Limited
Partnership; or
9.5.1.2. Possess Partnership property, or assign any rights in specific
Partnership property, including any assignment for the benefit of Partnership
creditors, for other than a Partnership purpose.
9.6. Tax Matters Partner. Each Partner, by the execution of this Agreement, consents
to the appointment of the General Partner as the Tax Matters Partner and agrees to execute,
certify, acknowledge, deliver, swear to, file and record at the appropriate public offices such
documents as may be necessary or appropriate to evidence such consent.
9.6.1. The Tax Matters Partner shall have, along with any other duties required by the
Code, the following duties, to the extent and in the manner provided by the Code:
9.6.1.1. Furnish the name, address, profits interest and taxpayer identification
number of each Partner to the Internal Revenue Service;
9.6.1.2. Keep each Partner informed of the administrative and judicial
proceedings for the adjustment of any item required to be taken into account by a
Partner for income tax purposes;
9.6.1.3. Within 30 days of receiving a notice of a Partnership audit by the
Internal Revenue Service, forward a copy of such notice to the Partners; and
9.6.1.4. Register the Partnership with the Internal Revenue Service as a “tax
shelter” if required by the Code, and deliver information with respect to
such registration to the Partners.
9.6.2. The Tax Matters Partner is hereby authorized, but not required, to:
9.6.2.1. Enter into any settlement with the Internal Revenue Service with respect
to any tax audit or judicial review, in which settlement the Tax Matters Partner may
expressly state that such settlement shall bind the other Partners, except that such
settlement agreement shall not bind any Partner who (within the time prescribed
pursuant to the Code and the applicable Treasury Regulations thereunder) files a
statement with the Internal Revenue Service providing that the Tax Matters Partner
shall not have the authority to enter into a settlement agreement on behalf of such
Partner;
9.6.2.2. If a final administrative adjustment of a Partnership item
required to be taken into account by a Partner for tax purposes is mailed to the Tax
Matters Partner, seek judicial review of such final adjustment, including the filing of
a petition for readjustment with the Tax Court, the District Court of the United States
for the district in which the Partnership’s principal place of business is located, or
the United States Claims Court;
9.6.2.3. Intervene in any action brought by any other Partner for judicial review
of a final adjustment;
9.6.2.4. File a request for an administrative adjustment with the Internal Revenue
Service at any time and, if any part of such request is not allowed by the
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Internal Revenue Service, file a petition for judicial review with respect to
such request;
9.6.2.5. Enter into an agreement with the Internal Revenue Service to
extend the period for assessing any tax which is attributable to any item required to
be taken into account by a Partner for tax purposes, or an item affected by such
item;
9.6.2.6. Take any other action on behalf of the Partners or the Partnership in
connection with any administrative or judicial tax proceeding to the extent permitted
by applicable law or regulations; and
9.6.2.7. File a petition as contemplated in Sections 6226(a) and/or 6228 of the
Code.
9.6.2.8. Make any tax elections for the Partnership allowed under the Code,
Treasury Regulations or the tax laws of any state or other jurisdiction having taxing
jurisdiction over the Partnership.
9.6.2.9. Adopt methods of accounting for the Partnership that the Tax Matters
Partner believes is in the best interests of the Partners.
9.6.3. The Partnership shall Indemnify and reimburse the Tax Matters Partner for all
expenses, including legal and accounting fees, claims, liabilities, losses and damages
incurred in connection with any administrative or judicial proceeding with respect to the
tax liability of the Partners and against any and all loss, liability, cost or expense,
including judgments, fines, amounts paid in settlement and attorneys fees and expenses,
incurred by the Tax Matters Partner in any civil, criminal or investigative proceeding in
which the Tax Matters Partner is involved or threatened to be involved solely by
virtue of being Tax Matters Partner, except such loss, liability, cost or expense arising by
virtue of the Tax Matters Partner’s gross negligence, fraud, malfeasance, breach of
fiduciary duty or intentional misconduct. The payment of all such expenses shall be made
before any distributions are made from Available Cash Flow. Neither the General Partner, nor
any Affiliate, nor any other person shall have any obligation to provide funds for such
purpose. The taking of any action and the incurring of any expense by the Tax Matters
Partner and the provisions on limitations of liability of the General Partner and
indemnification set forth in this Agreement shall be fully applicable to the Tax Matters
Partner in its capacity as such.
X. TRANSFER OF INTERESTS IN THE PARTNERSHIP
10.1. In General. With the General Partner’s approval, which approval may be
arbitrarily withheld, and subject to the provisions of this Agreement, a Limited Partner may sell,
transfer, assign or subject to a security interest any or all of the Units owned by him; provided
however, that:
10.1.1. Such sale, transfer, assignment or grant of a security interest is
to a Qualified Owner;
10.1.2. Such Limited Partner and his purchaser, transferee or assignee execute,
acknowledge and deliver to the General Partner such instruments of transfer and assignment
with respect to such transaction as are in form and substance satisfactory to the General
Partner; and
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10.1.3. Upon the request of the General Partner, such Limited Partner pays the
Partnership a transfer fee which is sufficient to pay all reasonable expenses of the
Partnership in connection with such transaction; and provided, further, that such
purchaser, transferee, assignee, or holder of such security interest (or any person who
purchases such Units upon foreclosure of such security interest) shall not become a Limited
Partner within the meaning of Section 17-301 of the Act unless the provisions of Section
10.2 of this Agreement are satisfied and the General Partner consents in writing to such
person becoming a substituted Limited Partner. Neither the Partnership nor the General
Partner shall recognize or be bound by any assignment of a Unit, or portion thereof, unless
the General Partner consents to such assignment in writing. The General Partner will not
consent to any sale, transfer or assignment of or security interest in any Unit or to the
admission of any person as a substituted Limited Partner if, in its opinion, such consent
and substitution (a) would result in the Partnership being treated for federal income tax
purposes (i) as an association taxable as a corporation or (ii)
as having undergone a technical termination, (b) would cause adverse tax
consequences to the remaining Partners, (c) would constitute a violation of any applicable
federal or state law pertaining to securities regulation, (d) would cause the assets of the
Partnership to constitute “plan assets” under the Department of Labor
Regulations, or (e) if, in the opinion of the General Partner, the Units would
not be a suitable investment for the transferee.
10.2. Substituted Limited Partners. If the General Partner consents to
the admission of a person as a substituted Limited Partner within the meaning of Sections 17-301
and 17-704 of the Act, and such person:
10.2.1. Elects to become a substituted Limited Partner by delivering a
written notice of such election to the General Partner;
10.2.2. Executes and acknowledges such other instruments as the General Partner may
deem necessary or advisable to effect the admission of such person as a substituted Limited
Partner, including, without limitation, the written acceptance and adoption by such person
of the provisions of this Agreement; and
10.2.3. Pays a transfer fee to the Partnership which is sufficient to cover
all reasonable expenses connected with the admission of such person as a
substituted Limited Partner within the meaning of Section 17-301 of the Act, including,
without limitation, the cost of preparing, printing and, if the General Partner
deems it appropriate, filing for record an amendment to this Agreement and, if required by
the Act or deemed appropriate by the General Partner, the Certificate of Limited
Partnership, and obtaining any opinions of counsel the Partnership deems necessary or
advisable;
then the General Partner shall amend this Agreement and, if necessary or desired, the
Certificate of Limited Partnership in accordance with the provisions of the Act and shall take all
other steps which, in the opinion of the General Partner, are reasonably necessary to admit such
person as a substituted Limited Partner under Section 17-301 of the Act. The General Partner shall
file an amendment to this Agreement and the Certificate of Limited Partnership, if required by the
Act or if the General Partner considers it appropriate to do so. Such person shall
become a substituted Limited Partner on the date of such amendment to this Agreement and his
predecessor will cease to be a Limited Partner on such date.
10.3. Purchase of Units by the General Partner. The General Partner may acquire one or
more Units, and, if with respect to such Unit or Units the General Partner becomes a Limited
Partner within the meaning of the Act, the General Partner shall, with respect to such Unit or
Xxxxx,
00
enjoy all rights and be subject to all of the obligations and duties of a Limited Partner
other than the provisions of Article XI.
XI. SPECIAL PROVISIONS
11.1. Terminating Event. If a Terminating Event occurs with respect
to a Limited Partner, such Limited Partner, or his successor, shall give written notice of the
Terminating Event to the General Partner (the “Termination Notice”). The General Partner shall have
the right, but not the obligation, to purchase the Units of such Limited Partner at any time after
the date (i) the General Partner receives the Termination Notice or (ii)
the General Partner has actual notice of the occurrence of the Terminating Event. The
purchase price will be the product of the Partnership Percentage of the purchased Units and
(i) 10% of the Net Book Value if the Terminating Event is the Limited
Partner’s breach of this Agreement, (ii) the Formula Value if the Terminating Event is
a Limited Partner’s death, Retirement, relocation more than 60 miles from the Center or Disability,
as determined by the General Partner, or (iii) the Net Book Value for all other
Terminating Events. In addition, if the Terminating Event is the Limited Partner’s
breach of this Agreement, the Limited Partner shall return to the Partnership all
distributions made by the Partnership to such Limited Partner prior to
the date of such breach. The closing of the purchase will occur 30 days following the date
the General Partner notifies the Limited Partner in writing of its exercise of the right to
purchase the Units. The Limited Partner shall transfer good and marketable title to the
Units to the General Partner, free and clear from all liens and encumbrances. The
purchase price shall be paid at the closing.
11.2. Subsequent Legislation. If the General Partner determines that any
Limited Partners are prohibited from owning an interest in the Partnership as a result of the
enactment of any statute, regulation or other law or the judicial or administrative interpretation
of any existing or future statute, regulation or other law, the General Partner shall attempt to
restructure the Partnership in order to comply with such enactment or interpretation. If any
Limited Partner shall be so prohibited from owning an interest in the Partnership and the
Partnership cannot be so restructured, the General Partner will purchase all the Limited Partners’
interests in the Partnership as provided in this Section 11.2. Additionally, if the
enactment of any statute, regulation or other law or the judicial or administrative interpretation
of any existing or future statute, regulation or law shall have the effect of limiting
reimbursement of health care costs through government or other payor programs or otherwise
materially and adversely affects the manner in which the Partnership or its Affiliates shall
operate their businesses, the General Partner shall attempt to restructure the Partnership
to eliminate the adverse effect and if the Partnership cannot be so
restructured, the General Partner, at its sole and absolute discretion, shall have the option
to purchase all of the Limited Partners’ interests in the Partnership as provided in
this Section 11.2. The Partnership shall pay each such Partner for his interest in the Partnership
the product of such Limited Partner’s Partnership Percentage and the Formula Value. Such amount
will be paid to each such Partner, at the sole and absolute discretion of the General Partner, in
either a lump sum or in 60 equal monthly payments with interest on the unpaid principal balance at
the prime rate as published in the Wall Street Journal. If the General Partner exercises its
discretion to pay for a Unit in 60 monthly installments, the first such installment shall be paid
to such Limited Partner on the first day of the month after 30 days have expired
since the Partner’s interest in the Partnership had been terminated, with subsequent installments
paid on the first day of each successive month thereafter until paid in full. The General Partner
may pre-pay in whole or in part the amount owed without penalty. The General Partner’s obligation
to pay the such Partners in 60 equal monthly installments under this Section 11.2 will be evidenced
by nonrecourse promissory notes executed by the General Partner.
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11.3. Restriction on Ownership.
11.3.1. Each Limited Partner (except for the General Partner) agrees that while he is
a Partner and for two years thereafter neither he nor any of his Affiliates shall, whether
directly or indirectly, own, have any financial interest in, or derive any fee (except a
professional fee for services rendered) from any Competing Business that is located within
the counties of Xxxxx, Xxxxxx and Fayette, Alabama.
11.3.2. With respect to any covenant of a Limited Partner which applies
after the transfer of a Limited Partner’s interest, if any Limited Partner
violates such covenant and the General Partner brings legal action for injunctive or other
relief on behalf of the Partnership, the Partnership shall not, as a result of the time
involved in obtaining the relief, be deprived of the benefit of the full period of such
covenant. Accordingly, after the transfer of a Limited Partner’s interest for any reason,
for any time period that any Limited Partner is in violation of the covenants set forth in
this Section 11.3, such time period shall not be included in calculating any such covenant
time period described in this Section 11.3.
11.3.3 If it shall be determined that the duration or geographical limit of
any provision contained in this Section 11.3 is unenforceable, it is the intention of the
parties that such covenant set forth herein shall not thereby be terminated or void but
shall be deemed amended to the extent required to render it valid and enforceable to the
greatest extent permissible, such amendment shall apply only with respect to the operation
of this Section 11.3.
11.3.4 Each Limited Partner acknowledges that the covenants contained in this
Section 11.3 are a reasonable and necessary protection of the legitimate business interests
of the Partnership. In the event of any violation of the covenants in this Section 11.3, the
Partnership shall be entitled to preliminary and permanent injunctive relief, in addition
to any other remedy, and shall be entitled to be reimbursed by the appropriate
Limited Partner for any attorneys’ fees and costs, at all pre-trial and appellate levels,
incurred as a result thereof. Nothing herein contained shall be construed as prohibiting the
General Partner from pursuing any other legal or equitable remedies available to
the Partnership as a result of a violation of the covenants set forth in this Section
11.3.
11.4. Repurchase Event. If at any time, the General Partner determines, in its sole
discretion, to terminate the operations of the Center, the General Partner will have the right,
upon written notice, to repurchase all of the Units from each Limited Partner for an amount equal
to the product of the Partnership Percentage of the purchased Units times the Formula Value. Upon
such repurchase of Units pursuant to this Section 11.4, no Partner shall have any claim for damages
against the General Partner, Partnership and/or their Affiliates.
11.5. Medical Malpractice Insurance. Each Limited Partner who is a practicing
physician at the Center shall maintain medical malpractice insurance in accordance with the
Center’s medical staff bylaws and, upon written request by the General Partner, shall provide
confirmation of such coverage.
XII. RESIGNATION OR REMOVAL OF THE GENERAL PARTNER; ELECTION OF
SUCCESSOR GENERAL PARTNER
SUCCESSOR GENERAL PARTNER
12.1. Resignation of the General Partner. Subject to the provisions of Sections 12.3,
12.4 and 12.5 of this Agreement, the General Partner may resign as such by written notice given in
accordance with Section 12.3 of this Agreement.
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12.2. Removal of the General Partner. Subject to the provisions of Sections 12.3,
12.4 and 13.2 of this Agreement, the General Partner may be removed and cease to be the General
Partner of the Partnership upon the dissolution of the General Partner or upon the adjudication
that the General Partner is insolvent or bankrupt. If the General Partner (or any
successor General Partner) is adjudicated insolvent or bankrupt, the Limited Partners owning in
the aggregate a Limited Partnership Percentage of greater than 50% may vote to remove such General
Partner (or successor General Partner). Such vote must occur before the effectiveness of such
removal and after the election of a successor General Partner pursuant to the Section 12.6 of this
Agreement.
12.3. Notice of Resignation or Removal. Written notice of the resignation or removal
of the General Partner shall be given by such General Partner to the Limited Partners, and written
notice of the removal of the General Partner shall be given by the Limited Partners voting to
remove the General Partner pursuant to Section 12.2.1 of this Agreement to all Partners. Such
notice shall set forth the day upon which the resignation or removal is to become effective, which
date in the case of resignation of the General Partner and in the case of removal pursuant to
Section 12.2.1 of this Agreement shall not be less than 90 days after such notice is given to the
party or parties being notified, unless a successor General Partner is elected pursuant to Section
12.6 of this Agreement.
12.4. Liability of the General Partner after Resignation or Removal. If the General
Partner resigns or is removed in accordance with the provisions of this Agreement, its liability as
a general partner shall cease as to future obligations of the Partnership, and the Partnership
shall promptly take all steps reasonably necessary under the Act to cause such cessation of
liability; provided, however, that if such resignation or removal causes a dissolution
of the Partnership, the General Partner shall remain the General Partner of the Partnership for
purposes of the winding up of the Partnership pursuant to Section 13.2 of this
Agreement, unless a successor General Partner is elected pursuant to Section 12.6 of this Agreement
or a liquidating trustee is elected pursuant to Section 13.3 of this Agreement.
12.5. Continuing Interest of the General Partner after Resignation or Removal. Upon
resignation or removal, the General Partner shall receive its original Capital Contribution, if
any, plus any unpaid distributions of Available Cash Flow allocated to its Capital Account. The
successor General Partner, if any, shall succeed to the entire interest in all items of income,
profit, loss and allocation and distribution.
12.6.Election of Successor General Partner. If the General Partner (or any successor
General Partner) resigns or is removed pursuant to this Agreement, the Partnership
shall continue and shall not be dissolved or the business wound up. In that event, Limited Partners
owning in the aggregate a Limited Partnership Percentage of greater than 50% may, but are not
required to, elect a successor General Partner. Upon the resignation or removal of the
last remaining General Partner so that the Partnership has no remaining General Partner, then the
business of the Partnership shall be continued and a successor General Partner shall be selected
before the effectiveness of such resignation or removal by the same vote of the Limited Partners
with such selection to be effective as of the date of resignation or removal. The person so
selected shall not become a General Partner until such resignation or removal is effective and such
person has executed a copy of this Agreement and an amendment to the Certificate of Limited
Partnership and such Certificate of Limited Partnership has been filed with the Secretary of State
of Delaware. Upon such events, the person or entity so selected automatically shall be the General
Partner of the Partnership effective as of the date of resignation or removal.
XIII. DISSOLUTION AND WINDING UP OF THE PARTNERSHIP
13.1. Dissolution of the Partnership. The resignation or removal of the General
Partner shall cause a dissolution of the Partnership unless, within 90 days thereafter, a successor
16
General Partner shall be elected pursuant to Section 12.6 of this Agreement to continue the
business of the Partnership, in a reconstituted form if necessary, and subject to all the terms of
this Agreement. The Partnership shall also be dissolved upon (a) the vote to do so of the General
Partner and Limited Partners holding an aggregate Limited Partnership Percentage of greater than
51%, (b) the expiration of the term of the Partnership, or (c) the disposition of all of the
Partnership’s assets and the distribution of the proceeds from such disposition. In no event shall
the bankruptcy of any Limited Partner, or the death of any Limited Partner, result in dissolution
of the Partnership. In the event of the death of any Limited Partner, the personal representative
of the deceased Limited Partner shall succeed to the interest of the deceased Limited Partner in
the Partnership subject to the rights of any assignees of the deceased Limited Partner in and to
such interest, and subject to the provisions of this Agreement.
13.2.
Winding Up of the Partnership. Upon the dissolution of the Partnership, the
General Partner or a liquidating trustee elected pursuant to Section 13.3 of this Agreement shall
take full account of the Partnership’s assets and liabilities and the assets shall be liquidated as
promptly as is consistent with obtaining the fair value thereof. The proceeds therefrom, to the
extent sufficient therefor, shall be applied and distributed as provided in Section 17-804 of the
Act; provided, however, that after payment of or creating adequate reserves to provide for all
Partnership debts, obligations and liabilities there shall be distributed to each Partner the
remaining assets of the Partnership in accordance with and in proportion to, the Partners’ ending
Capital Account balance after all allocations and other Capital Account distributions are made for
the year of termination; and provided, further, that no Partner shall be liable for any deficit in
his Capital Account. Such distributions shall be made within the time periods required by Treasury
Regulation Section 1.704-l(b).
13.3. Election of Liquidating Trustee. If the Partnership dissolves and there is no
remaining General Partner, the Partnership, by the vote of Limited Partners holding an aggregate
Limited Partnership Percentage of greater than 50%, may elect a liquidating trustee who shall have
the powers and obligations as set forth in the Act. The liquidating trustee so elected shall not
become a liquidating trustee until such trustee has executed a copy of this Agreement, and an
amendment to the Certificate of Limited Partnership has been filed with the Secretary of State of
Delaware.
XIV. BOOKS OF ACCOUNT, ACCOUNTING, REPORTS, FISCAL YEAR, BANKING AND TAX ELECTION
14.1. Books of Account. The Partnership’s books and records (including a current list
of the names and addresses of and number of Units owned by all Limited Partners) and an executed
copy of this Agreement, as currently in effect, shall be maintained at the principal office of the
General Partner, and each Partner shall have access thereto at all reasonable times for any proper
purpose. The books and records shall be kept by the General Partner using an appropriate method of
accounting consistently applied and shall reflect all Partnership transactions and be appropriate
and adequate for the Partnership’s business. The General Partner shall also keep adequate federal
income tax records using an appropriate method of accounting applied on a consistent basis.
14.2. Financial Reports. If requested in writing by the General Partner or Limited
Partners (not including the General Partner and its Affiliates) holding an aggregate Limited
Partnership Percentage of greater than 50%, the Partnership, at the Partnership’s
expense if requested by the General Partner and at the Limited Partner’s expense if requested by
the Limited Partners, shall furnish the General Partner and/or such Limited Partners a copy of a
balance sheet of the Partnership as of the last day of such Fiscal Year and statements of income or
loss and cash flow of the Partnership for such year certified by a firm of independent accountants
selected by the General Partner, and the report and opinion of such firm with respect to such
financial statements.
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All such financial statements shall be prepared on an accrual basis of accounting in
accordance with GAAP. The Partnership shall furnish to each Partner not later than March 31 of
each year an unaudited statement of cash flow of the Partnership for such year, a statement
showing the amounts allocated to or allocated against such Partner pursuant to this Agreement
during or in respect of such year and any items of income, deduction, credit or loss allocated to
such Partner for purposes of the Code and a statement reconciling of the taxable income of the
Partnership to the financial income of the Partnership for such year. The Partnership will also
furnish to each Partner that submits a written request to the General Partner, at such Partner’s
expense, a copy or summary of all state and/or local tax returns which are filed by the
Partnership.
14.3. Banking. All funds of the Partnership shall be initially deposited in one or
more separate account or accounts of banks or other insured financial institutions as shall be
determined by the General Partner.
14.4. Tax Election. Upon the transfer of an interest in the Partnership or in the
event of a distribution of the Partnership’s property, the General Partner in its sole discretion
may, but is not required to, cause the Partnership to elect pursuant to Section 754 of the Code,
to adjust the basis of the Partnership’s property as allowed by Section 734(b) and 743(b) thereof.
14.5. Tax Returns. The General Partner shall, for each Fiscal Year, file on behalf of
the Partnership with the Internal Revenue Service a Partnership Return within the time prescribed
by law (including any extensions) for such filing. The General Partner shall also file on behalf of
the Partnership such state and/or local income tax returns as may be required by law. The General
Partner may, at its discretion, retain an accounting firm to prepare the Partnership’s tax returns.
XV. POWER OF ATTORNEY
15.1. Appointment of Attorney-in-Fact. Each Limited Partner hereby makes, constitutes
and appoints the General Partner, with full power of substitution and resubstitution, his agent and
attorney-in-fact to file for record this Agreement if required by the Act or if the General Partner
deems it appropriate to do so, and to sign, execute, certify, acknowledge, and file for record any
other instruments which may be required of the Partnership or of the Limited Partners by law or
otherwise necessary, desirable or appropriate to reflect the admission of a Partner, the withdrawal
of a Partner or the transfer of all or any part of the interest of a Partner in the Partnership,
including, but not limited to, amendments to, or cancellations of this Agreement. Each Limited
Partner authorizes each such attorney-in-fact to take any further action which such
attorney-in-fact shall consider necessary or advisable in connection with the foregoing, hereby
giving such attorney-in-fact full power and authority to act to the same extent as if
such Limited Partner were himself personally present, and hereby ratifying and confirming all
that such attorney-in-fact shall lawfully do or cause to be done by virtue hereof.
15.2. Qualification in Other States. In the event the business of the Partnership is
carried on or conducted in states in addition to the State of Delaware, then the parties agree
that, if required by applicable law, the Partnership shall be qualified under the laws
of each state in which business is actually conducted by the Partnership, and they severally agree
to execute such other and further documents as may be required or requested in order that the
General Partner legally may qualify the Partnership in such states. The power of attorney granted
to the General Partner by each Limited Partner in Section 15.1 of this Agreement shall constitute
the authority of the General Partner to perform the ministerial duty of qualifying the Partnership
under the laws of any state in which it is necessary to file documents or instruments of
qualification. A Partnership office of principal place of business in any state may be designated
from time to time by the General Partner.
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15.3. Effect of Power. The power of attorney granted pursuant to Section 15.1 of this
Agreement:
15.3.1. Is a special power of attorney coupled with an interest, is irrevocable, and
shall survive the death, insanity, or incapacity of the granting Limited Partner; and
15.3.2. May be exercised by such attorney-in-fact for each Limited Partner by listing
all of the Limited Partners executing any agreement, certificate, instrument or document
with the single signature of such attorney-in-fact as attorney-in-fact for all of them; and
15.3.3. Shall survive the effectiveness of an assignment by a Limited Partner of his
entire interest in the Partnership, except that where the purchaser, transferee or assignee
thereof is admitted as a substituted Limited Partner, the power of attorney shall survive
such assignment as to the assignor for the sole purpose of enabling such attorney-in-fact to
execute, acknowledge and file any such agreement, certificate, instrument, or document
necessary to effect such substitution.
XVI. LIABILITY OF THE GENERAL PARTNER
16.1. Return of Capital Contributions. Anything in this Agreement to the contrary
notwithstanding, the General Partner shall not be individually liable for the return of the Capital
Contributions of the Limited Partners, or any portion thereof, it being expressly understood that
any such return shall be made solely from Partnership assets.
16.2. No Liability for Actions. The doing of any act or the failure to do any act by
the General Partner shall not subject the General Partner to any liability to the Partnership or
the Partners, in the absence of its gross negligence or willful malfeasance.
16.3. Indemnification. The Partnership, its receiver or its trustee (other than a
liquidating trustee), shall indemnify, hold harmless and pay all judgments and claims against and,
upon request, shall advance expenses to the General Partner, its Affiliates and their respective
officers, directors, partners, employees, subsidiaries, agents, representatives, and
affiliated assigns, from any liability, loss or damage incurred by them or by the Partnership
by reason of any act performed or omitted to be performed by them in connection with the business
of the Partnership (other than management services provided under the Management Agreement which
indemnity shall be controlled by the Management Agreement), including costs and attorneys’ fees
(which costs and attorneys’ fees may be advanced or paid as incurred) and any amounts expended in
the settlement of any claims of liability, loss or damage; provided, however, that if such
liability, loss or claim arises out of any action or inaction of the General Partner, any such
indemnification shall be recoverable only from the assets of the Partnership and not from the
assets of the Partners. The payment of any amounts for indemnification shall be made before any
distributions of Available Cash Flow or sale proceeds are made to Partners. Neither the General
Partner, nor any Affiliate, nor any other person shall have any obligation to provide funds for any
indemnification obligation hereunder. The Partnership may purchase and pay for any insurance
covering the liability of the General Partner, its officers, directors, shareholders, partners,
employees, subsidiaries, agents, representatives, and affiliated assigns for actions or omissions
for which indemnification is not permitted hereunder. Nothing contained herein shall constitute a
waiver by any Limited Partner of any right which he may have against any party under federal or
state securities law.
XVII. MISCELLANEOUS
17.1. Notices. Except as otherwise provided in this Agreement, any notice, payment,
demand or communication required or permitted to be given by any provision of this Agreement
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shall be duly given if delivered in writing personally to the person to
whom it is authorized to be given, or if sent by mail or overnight delivery service, telecopy,
telex or telegraph, as follows: if to the General Partner, at its address set forth in the first
paragraph of this Agreement, or to such other address as the General Partner may from time to time
specify by written notice to the Limited Partners; and if to a Limited Partner, at
such Limited Partner’s address set forth in Annex A hereto, or to such other address as such
Limited Partner may from time to time specify by written notice to the General Partner. Any such
notice shall be deemed to be given as of the date so delivered, if delivered
personally, by telecopy, telex or telegraph, or as of the date on which the same was deposited in
the United States mail or overnight delivery service, charges prepaid or provided for, addressed
and sent as aforesaid.
17.2. Section Captions. Section and other captions contained in this Agreement are for
reference purposes only and are in no way intended to describe, interpret, define or limit the
scope, extent or intent of this Agreement or any provision hereof.
17.3. Severability. Every provision of this Agreement is intended to be severable.
If any term or provision of this Agreement is illegal or invalid for any reason
whatsoever, such illegality or invalidity shall not affect the validity of the remainder of this
Agreement.
17.4. Amendments. Amendments to this Agreement may be made in the
following manner:
17.4.1. Amendments to this Agreement may be proposed by the General Partner.
Following such proposal, the General Partner shall submit to the Limited Partners a written
statement of any proposed amendment, including a complete description of the proposed
amendment and the reasons therefor, and may include in any such submission their
recommendation as to the proposed amendment. The General Partner shall seek the consent of
the Limited Partners on the proposed amendment or shall call a meeting of or action by
consent of the Partners pursuant to Section 17.5 of this Agreement to vote thereon and
to transact any other business permitted by the Act to be transacted by the
Limited Partners that they may deem appropriate. A proposed amendment shall be adopted and
effective as an amendment to this Agreement if it receives the affirmative vote of the
General Partner and Limited Partners holding an aggregate Limited Partnership Percentage of
greater than 50%, unless another Limited Partnership Percentage is specifically provided for
elsewhere in this Agreement.
17.4.2. In addition to any amendments otherwise authorized herein, the General Partner
may, without obtaining the consent of the Limited Partners, amend this Agreement from time to
time:
17.4.2.1. To add to the representations, duties or obligations of the General
Partner, or its Affiliates, or surrender any right or power granted to the General
Partner, or its Affiliates, herein for the benefit of the Limited Partners;
17.4.2.2. To cure any ambiguity, to correct or supplement any provision herein or
therein which may be inconsistent with any law or with any other provision herein, or
to make any other provisions with respect to matters or questions arising under this
Agreement which will not be inconsistent with any law or with the provisions of this
Agreement; and
17.4.2.3. To admit additional or substituted Limited Partners or a substituted
General Partner.
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17.4.3. The General Partner, without the consent of the Limited Partners, may modify
the provisions of Article VIII or any other provisions of this Agreement, if, after
consultation with counsel to the Partnership, the General Partner determines that such
modification is necessary to (i) cause the allocations contained in Article
VIII to have substantial economic effect or otherwise be respected for federal income tax
purposes under Section 704 of the Code; (ii) cause the allocation of Net
Income and Net Loss under Article VIII hereof to conform, in accordance with the
requirements of Section 704 of the Code, to the distributions of Available Cash Flow
provided in Article VIII; or (iii) cause provisions of this Agreement to
comply with any applicable legislation, regulation or rule enacted or promulgated after the
date of this Agreement, which change is necessary to enable the Partnership to carry out
its purposes in the manner contemplated by this Agreement, including the expanding of the
Tax Matter Partner’s responsibilities, duties and powers with respect to the taxing
authority in accordance with the relevant statute. Any such amendment shall be so as to
cause the least significant deviation from the provisions of this Agreement as originally
set forth.
17.5. Meeting and Voting by Written Consent. The General Partner may at any time call
a meeting of the Limited Partners, or for a vote without a meeting, of the Limited Partners on
matters on which they are entitled to vote, and shall call for such meeting or vote following
receipt of the written request therefor of Limited Partners holding in the aggregate a Limited
Partnership Percentage of greater than 50% as of the date of receipt of such written request
(“notice date”). Within ten days of such notice date, the General Partner shall notify all Limited
Partners of record as of the notice date that a meeting, if called, will be held at the
Partnership’s principal place of business at a time requested by the Limited Partner(s) calling the
meeting, or, if no such meeting has been called, the date upon which votes without a meeting will
be counted, which date in either case shall be not less than 15 days nor more than 60 days after
the notice date. Written notice of any meeting or any vote without a meeting shall be given by the
General Partner as provided in Section 17.1 of this Agreement not less than ten nor more than 60
days before the date of such meeting or vote and shall include a detailed statement of the action
proposed (including a statement of the substance of any resolution proposed for adoption by the
Limited Partners and any proposed amendment to the Agreement) and may include in any such
submission the General Partners’ recommendation with respect to the proposal. All expenses of the
voting and such notification shall be borne by the Partnership.
17.6. Manner of Voting. A Limited Partner who is entitled to vote shall be entitled to
cast his vote: (i) at a meeting, in person, by written proxy or by a signed writing
directing the manner in which he desires that his vote be cast, which writing must be received by
the General Partner prior to such meeting, or (ii) without a meeting, by
a signed writing directing the manner in which he desires that his vote be cast, which writing must
be received by the General Partner prior to the date upon which the votes of Limited Partners of
record on the notice date, whether at a meeting or otherwise, shall be counted. The laws of the
State of Delaware pertaining to the validity and use of corporate proxies shall govern the validity
and use of proxies given by Limited Partners. At each meeting of Limited Partners, the General
Partner shall appoint such officers and adopt such rules for the conduct of such meeting as the
General Partner shall deem appropriate. Unless a greater percentage is required by the Act or this
Agreement, the presence of the General Partner and holders of a Limited Partnership Percentage
which is greater than 50% shall constitute a quorum at any meeting for the transaction of business.
In connection with each meeting or vote without a meeting of the Limited Partners, the Partnership
shall provide for proxies or written consents which specify a choice between approval and
disapproval of each matter to be acted upon at the meeting or by vote without a meeting. For
purposes of obtaining a vote under this Agreement, the General Partner may require a written
response within a specified time, but not less than 15 days nor more than 45 days, and provide that
failure to respond in such time shall constitute a vote which is consistent with the General
Partner’s recommendation, if made, with respect to the proposal.
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17.7. Right to Rely Upon the Authority of the General Partner. No person dealing with
the General Partner shall be required to determine its authority to make any commitment or
undertaking on behalf of the Partnership, nor to determine any fact or circumstance bearing upon
the existence of its authority. In addition, no purchaser of any property of the Partnership shall
be required to determine the sole and exclusive authority of the General Partner to sign and
deliver on behalf of the Partnership any such instrument of transfer, or to see to the application
or distribution of revenues or proceeds paid or credited in connection therewith, unless such
purchasers shall have received written notice from the Partnership affecting the same.
17.8. Waiver of Action for Partition. Each Partner irrevocably waives during the term
of the Partnership and during the period of its liquidation following any dissolution, any right
to maintain any action for partition with respect to any of the assets of the Partnership.
17.9. Counterpart Execution. This Agreement may be executed in one or more
counterparts all of which together shall constitute one and the same Agreement.
17.10. Parties in Interest. Except as provided in Article X of this
Agreement, this Agreement shall be binding upon the parties hereto and their successors, heirs,
devisees, assigns, legal representatives, executors and administrators.
17.11. Integrated Agreement. This Agreement constitutes the entire understanding and
agreement among the parties hereto with respect to organizational and governance issues of the
Partnership, and there are no agreements, understandings, restrictions, representations or
warranties among the parties other than those set forth herein or herein provided for. This
Agreement supersedes any prior written or oral agreement among the parties hereto.
17.12 Governing Law. This Agreement shall be construed and enforced in accordance with
the laws of the State of Delaware without regard to its principles of conflicts of laws.
17.13. Arbitration; Venue: Jurisdiction; Service of Process.
17.13.1. Except as to the provisions contained in Section 11.3, the exclusive
jurisdiction of which shall rest with a court of competent jurisdiction in the State of
Delaware, any controversy or claim arising out of or related to this Agreement,
or any breach thereof, shall be settled by arbitration in Wilmington, Delaware in accordance
with the rules and procedures of alternative dispute resolution and arbitration established
by the Alternative Dispute Resolution Service of the American Health Lawyers Association
(“AHLA”), and judgment upon any award rendered may be entered in any court having
jurisdiction thereof. Such arbitration shall be conducted before a single AHLA arbitrator
selected jointly by the parties, or in the event the parties are unable to agree, designated
by the AHLA.
17.13.2. The Partners hereby irrevocably and unconditionally consent to venue in
Wilmington, Delaware for any dispute arising out of or relating to this Agreement, and the
Partners hereby waive any objection to the laying of venue of any such dispute in Delaware
and agree not to plead or claim in any court or arbitration proceeding that such dispute
brought therein has been brought in an inconvenient forum. Each Partner consents to personal
jurisdiction in Delaware and consent to service of process in Delaware. The Limited Partners
appoint The Corporation Trust Corporation as their agent for service of process in Delaware,
unless otherwise specified in writing to the Partnership and the other Limited Partners.
17.14. Waiver. Failure by any party to enforce any of the provisions hereof for any
length of time shall not be deemed a waiver of its rights set forth in this Agreement. Such a
waiver may be
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made only by an instrument in writing signed by the party sought to be charged with the
waiver. No waiver of any condition or covenant of this Agreement shall be deemed to imply or
constitute a further waiver of the same or any other condition or covenant, and nothing contained
in this Agreement shall be construed to be a waiver on the part of the parties of any right or
remedy at law or in equity or otherwise.
17.15. Construction. Every covenant, term, and provision of this Agreement shall be
construed simply according to its fair meaning and not strictly for or against any Partner. The
failure by any party to specifically enforce any term or provision hereof or any rights of such
party hereunder shall not be construed as the waiver by that party of its rights hereunder. The
waiver by any party of a breach or violation of any provision of this Agreement shall not operate
as, or be construed to be, a waiver of any subsequent breach of the same or other provision hereof.
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IN WITNESS WHEREOF, this Agreement of Limited Partnership has been executed as of January 30,
2004.
NORTHWEST MEDICAL CENTER —
WINFIELD, LLC as the General Partner |
||||
By: | /s/ Xxxxxxx X. Xxxxxxxx | |||
Xxxxxxx X. Xxxxxxxx, Vice President | ||||
/s/ Xxxxxxx Xxxxxxxx | ||||
Xxxxxxx Xxxxxxxx, as the Original Limited Partner | ||||
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