EXHIBIT 3.58
THE ANAHEIM VHS LIMITED PARTNERSHIP
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP, made and
entered into as of this 1st day of September, 1999, is by and between VHS of
Anaheim, Inc., a Delaware corporation with its principal place of business at 00
Xxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, as a General
Partner ("VHS-A" or the "General Partner"), and VHS Holding Company, Inc., a
Delaware corporation with its principal place of business at 00 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, as a limited partner
("VHS-HC").
W I T N E S S E T H:
WHEREAS, on June 9, 1999, the parties hereto formed a limited partnership
named "The Anaheim VHS Limited Partnership" under and pursuant to the Delaware
Revised Uniform Limited Partnership Act pursuant to an Agreement of Limited
Partnership dated as of June 9, 1999; and
WHEREAS, the parties hereto now desire to amend and restate said Agreement
of Limited Partnership on the terms and conditions set forth herein (said
Agreement of Limited Partnership, as amended and restated herein, referred to as
the "Agreement").
NOW, THEREFORE, in consideration of the mutual promises, covenants and
undertakings hereinafter contained, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties hereto,
after being duly sworn, do hereby amend and restate said Agreement of Limited
Partnership in full as follows:
ARTICLE I
GENERAL
1.1 Formation.
The parties hereto hereby agree to form a limited partnership under and
pursuant to the Delaware Revised Uniform Limited Partnership Act, subject to the
terms and conditions contained in this Agreement.
1.2 Name.
The name of the Partnership shall be "The Anaheim VHS Limited
Partnership".
1.3 Term.
The term of the Partnership shall commence on the date of the filing of a
Certificate of Limited Partnership with the Office of the Secretary of State of
Delaware, and shall continue in perpetuity, unless earlier terminated in
accordance with the provisions hereof or as provided by law.
1.4 Registered Office and Registered Agent.
The registered office of the Partnership shall be located at 0 Xxxx
Xxxxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, County of Kent, and the Partnership's
registered agent for service of process at such location shall be National
Registered Agents, Inc.
1.5 Purpose.
The purpose of the Partnership shall be to acquire, own and operate an
acute care hospital located at 0000 Xxxx Xxxxxx Xxxxxx xx Xxxxxxx, Xxxxxxxxxx
00000-0000 (the "Hospital"), and to conduct such other activities as may be
necessary or appropriate to promote the business of the Partnership, it being
agreed that each of the foregoing is an ordinary part of the Partnership's
business.
1.6 Principal Place of Business.
The principal place of business of the Partnership is expected to be
located at 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000
1.7 Definitions.
As used herein, the following terms have the indicated meanings:
1.7.1 "Act" means the Delaware Revised Uniform Limited Partnership Act, as
amended from time to time.
1.7.2 "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:
(a) Credit to the Capital Account any amounts which the
Partner is obligated to restore 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
(b) Debit to such Capital Account the items described in
Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(5), and 1.704-1(b)(ii)(d)(6).
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.
1.7.3 "Affiliate" with respect to any individual or Entity means any
individual or other Entity directly or indirectly controlling, controlled by, or
under control with such individual or Entity.
2
1.7.4 "Agreement" means this Agreement of Limited Partnership, as amended
and/or restated from time to time. Words such as "herein," "hereinafter,"
"hereof," "hereto," and "hereunder" refer to this Agreement as a whole, unless
the context otherwise requires.
1.7.5 "Bankruptcy" means, with respect to any Person, a "Voluntary
Bankruptcy" or an "Involuntary Bankruptcy." A "Voluntary Bankruptcy" means, with
respect to any Person, the inability of such Person generally to pay its debts
as such debts become due, or an admission in writing by such Person of its
inability to pay its debts generally or a general assignment by such Person for
the benefit of creditors; the filing of any petition or answer by such Person
seeking to adjudicate it a bankrupt or insolvent, or seeking for itself any
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of such Person or its debts under any law relating to
bankruptcy, insolvency, or reorganization or relief of debtors, or seeking,
consenting to, or acquiescing in the entry of an order for relief or the
appointment of a receiver, trustee, custodian, or other similar official for
such Person or for any substantial part of its property; or corporate action
taken by such Person to authorize any of the actions set forth above. An
"Involuntary Bankruptcy" means, with respect to any Person, without the consent
or acquiescence of such Person, the entering of an order for relief or approving
a petition for relief or reorganization or any other petition seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or other similar relief under any present or future bankruptcy,
insolvency, or similar statute, law, or regulation, or the filing of any such
petition against such Person which petition shall not be dismissed within ninety
(90) days, or, without the consent or acquiescence of such Person, the entering
of an order appointing a trustee, custodian, receiver or liquidator of such
Person or of all or any substantial part of the property of such Person which
order shall not be dismissed within sixty (60) days.
1.7.6 "Capital Account" shall have that meaning assigned pursuant to
Section 2.3 hereof.
1.7.7 "Capital Contribution" means, with respect to any Partner, the
amount of money or services contributed to the Partnership with respect to the
Partnership Interest held by such Partner pursuant to the terms of this
Agreement. The principal amount of a promissory note which is not readily traded
on an established securities market and which is contributed to the Partnership
by the maker of the note or a Person related to the maker of the note within the
meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(c) shall not be
included in the Capital Contribution of any Partner until the Partnership makes
a taxable disposition of the note or until (and to the extent) principal
payments are made on the note, all in accordance with Treasury Regulations
Section 1.704-1(b)(2)(iv)(d)(2).
1.7.8 "Cash Available for Distribution" means all cash funds of the
Partnership on hand or in bank accounts beneficially owned by the Partnership,
revenues and funds received by the Partnership, less the sum of the following to
the extent paid or set aside by the Partnership;
(i) All regularly scheduled principal and interest payments on
indebtedness of the Partnership and all other sums paid to lenders;
(ii) All cash expenditures incurred incidental to the
operation of the Partnership's business pursuant to the operating
and capital budgets; and
3
(iii) Financial reserves in an amount that the General Partner
reasonably deems to be necessary for the Partnership.
1.7.9 "Certificates" shall have the meaning assigned pursuant to Section
3.6 hereof.
1.7.10 "Code" means the Internal Revenue Code of 1986, as amended.
1.7.11 "Depreciation" means, for each Fiscal Year or other period, an
amount equal to the depreciation, amortization, or other cost recovery deduction
allowable with respect to an asset for such year or other period.
1.7.12 "Entity" means any corporation, partnership, trust, foundation,
limited liability company or other entity.
1.7.13 "Fiscal Year" means (i) the period commencing on the effective date
of this Agreement and ending on December 31, (ii) any subsequent twelve (12)
month period commencing on January 1 and ending on December 31, or (iii) any
portion of the period described in clause (ii) for which the Partnership is
required to allocate Profits, Losses and other items of Partnership income,
gain, loss or deduction pursuant to Article III hereof.
1.7.14 "General Partner" means VHS-A together with any additional or
substitute General Partners admitted pursuant to the provisions of this
Agreement.
1.7.15 "Hospital" shall have that meaning assigned pursuant to Section 1.5
hereof.
1.7.16 "Limited Partners" means VHC-HC and any additional or substitute
Limited Partners admitted to the Partnership pursuant to the provisions of this
Agreement.
1.7.17 "Partners" means collectively the General Partner and the Limited
Partners. Reference to a "Partner" shall mean any one of the Partners.
1.7.18 "Partnership" means the Limited Partnership created by this
Agreement.
1.7.19 "Partnership Capital" means the total of the capital contributions
of the Partners, as hereinafter set forth, as adjusted to reflect income, gains,
losses, withdrawals and distributions. Capital contributions of property shall
be valued at fair market value as of the date of contribution.
1.7.20 "Person" means any individual, partnership, corporation, trust or
other entity.
1.7.21 "Profits" and "Losses" means, for each Fiscal Year or other period,
an amount equal to the Partnership's taxable income or loss 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:
4
(a) Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in computing Profits
and Losses pursuant to this Section shall be added to such taxable
income or loss;
(b) Any expenditures of the Partnership described in Code
Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B)
expenditures pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(i), and not otherwise taken into account in
computing Profits and Losses pursuant to this Section shall be
subtracted from taxable income or loss;
(c) To the extent an adjustment to the tax basis of any
Partnership asset pursuant to Code Section 734(b) of Code Section
743(b) is required pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining
Capital Accounts as a result of a distribution other than in
liquidation of a Partner's interest in the Partnership, the amount
of such adjustment shall be treated as an item of gain (if the
adjustment increases the basis of the asset) or loss (if the
adjustment decrease the basis of the asset) from the disposition of
the asset and shall be taken into account for purposes of computing
Profits and Losses; and
(d) Notwithstanding any other provision of this Section
1.7.20, any items which are specially allocated pursuant to Section
3.3 hereof shall not be taken into account in computing Profits or
Losses.
The amounts of items of Partnership income, gain, loss, or deduction
available to be specially allocated pursuant to Section 3.3 hereof shall be
determined by applying rules analogous to those set forth in paragraphs (a)
through (f) above.
1.7.22 "Register" shall have that meaning assigned pursuant to Section 4.5
hereof.
1.7.23 "Securities Act" means the Securities Act of 1933, as amended, or
any similar law then in effect.
1.7.24 "Securities and Exchange Commission" includes any governmental body
or agency succeeding to the functions thereof.
1.7.25 "Treasury Regulations" means the Income Tax Regulations promulgated
under the Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
1.7.26 "Vanguard" means Vanguard Health Systems, Inc., a Delaware
corporation and the ultimate parent company of VHS of Anaheim, Inc. and VHS
Holding Company, Inc.
5
ARTICLE II
CAPITAL
2.1 Capital Contributions.
The Partners shall each contribute initially cash to the capital of the
Partnership as set forth on Schedule A hereto.
2.2 No Interest or Right to Withdraw.
No Partner shall have the right to demand the return of, or otherwise
withdraw, his contribution or to receive any specific property of the
Partnership except as specifically provided in this Agreement. No Partner shall
have the right to demand and receive property other than cash in return for his
contributions. No interest shall be paid on Capital Contributions or on balances
in the Capital Accounts.
2.3 Capital Accounts.
The Partnership will maintain for each Partner an account to be designated
his "capital account" defined as follows:
(a) To each Partner's Capital Account there shall be credited
the amount of cash contributed to the Partnership by such Partner,
such Partner's distributive share of Profits, and any items in the
nature of income or gain that are specially allocated and the amount
of any Partnership liabilities that are assumed by such Partner or
that are secured by any Partnership property distributed to such
Partner.
(b) To each Partner's Capital Account there shall be debited
the amount of cash distributed to such Partner pursuant to any
provision of this Agreement, such Partner's distributive share of
Losses, and any items in the nature of loss or deduction
specifically allocated and the amount of any liabilities of such
Partner that are assumed by the Partnership or that are secured by
any property contributed by such Partner to the Partnership.
(c) In the event all or a portion of an interest in the
Partnership is transferred in accordance with the terms of this
Agreement, the transferee shall succeed to the Capital Account of
the transferor to the extent it relates to the transferred interest.
(d) In determining the amount of any liability for the
purposes of this Section 2.3, there shall be taken into account Code
Section 752(c) and any other applicable provisions of the Code and
Treasury Regulations.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Treasury Regulation section 1.704-1(b), and shall be interpreted and applied in
a manner consistent with such Regulation. In the event the General Partner shall
determine that it is prudent to modify the manner in which the
6
Capital Accounts, or any debits or credits thereto, are computed in order to
comply with such Regulation, the General Partner may make such modification,
provided that it is not likely to have a material effect on the amounts
distributable to any Partner upon the dissolution of the Partnership. The
General Partner also shall (i) make any adjustments that are necessary or
appropriate to maintain equality between the Capital Accounts of the Partners
and the amount of Partnership capital reflected on the Partnership's balance
sheet, as computed for book purposes in accordance with Treasury Regulations
section 1.704-1(b)(2)(iv)(a) and (ii) make any appropriate modifications in the
event unanticipated events might otherwise cause this Agreement not to comply
with Treasury Regulation section 1.704-1(b).
2.4 Effect of Transfer of Percentage Interests in the Partnership.
Upon the transfer by any Partner of all or any portion of his percentage
interest in the Partnership pursuant to the provisions of this Agreement, the
proportionate amount of his respective capital account balance, determined in
accordance with Section 2.3 hereof, shall be transferred to the transferee of
such percentage interest in the Partnership; provided that no transfer of any
percentage interest in the Partnership shall, in and of itself, relieve the
transferor of any obligation to the Partnership.
ARTICLE III
ALLOCATION OF INCOME AND LOSS; CASH DISTRIBUTIONS; CERTIFICATES
3.1 Distribution of Cash Available for Distribution.
Cash Available for Distribution, whether arising from operations in the
normal course of the Partnership's business or from sale or refinancing of
Partnership assets, or otherwise, shall be apportioned among and distributed to
the Partners in accordance with the percentage interest of each Partner set
forth on Schedule A to this Agreement, at such times as determined by the
General Partner.
3.2 Allocation of Profits and Losses.
After giving effect to the Special Allocations set forth in Sections 3.3,
Profits and Losses of the Partnership for any Fiscal Year shall be apportioned
among and allocated to the Partners in accordance with the percentage interest
of each Partner set forth on Schedule A to this Agreement as of the first day of
the Fiscal Year; provided that, if the percentage interest of any Partner
changes during any Fiscal Year, Profits and losses for each month shall be
allocated among the Partners in proportion to the percentage interest of each
Partner as of the first day of such month, and each Partner's share of Profits
and Losses for such Fiscal Year shall be equal to the sum of his share of
Profits and Losses for each month during the Fiscal Year.
3.3 Qualified Income Offset.
Notwithstanding the above, any Partner who unexpectedly receives an
adjustment, allocation or distribution described in Treasury Regulation sections
1.704-1(b)(2)(ii)(d)(4), (5), or (6), shall be allocated items of income or gain
(including gross income if necessary) 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. The provisions
of
7
this Section 3.3 are intended to comply with the provisions of Treasury
Regulation Section 1.704-1(b), including any amendments or successive
regulations thereto and shall be so interpreted.
3.4 Other Allocations Rules.
3.4.1 The Partners are aware of the income tax consequences of the
allocations made by this Article III and hereby agree to be bound by the
provisions of this Article III in reporting their shares of Partnership income
and loss for income tax purposes.
3.4.2 For purposes of determining the Profits, Losses, or any other items
allocable to any period, Profits, Losses, and any such other items shall be
determined on a daily, monthly, or other basis, as determined by the General
Partner using any permissible method under Code Section 706 and the Treasury
Regulations thereunder.
3.5 Modification. The General Partner may modify the provisions of this Article
III or any other provisions of this Agreement without the consent of the Limited
Partners if, after consultation with counsel to the Partnership, the General
Partner determines that such modification is necessary to (a) cause the
allocations contained in this Article III to have substantial economic effect or
otherwise be respected for Federal Income Tax purposes under Section 704 of the
Code; (b) cause the allocation of Profits and Losses under Section 3.2 to
conform, in accordance with the requirements of Section 704 of the Code, to the
distributions provided in Section 3.1; or (c) cause the provisions of the
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. Any such amendment shall be so as to cause the least significant
deviation from the provisions of this Agreement as originally set forth.
3.6 Percentage Interest Certificates in the Partnership. Each Partner's
percentage interest in the Partnership shall be evidenced by a certificate in
the form of Schedule B to this Agreement (a "Certificate"), and shall constitute
a security governed by Article 8 of the Delaware Uniform Commercial
Code-Investment Securities (Del. Code Title 6: 8-101, et. seq.).
ARTICLE IV
ADMISSION AND WITHDRAWAL OF PARTNERS;
TRANSFERS OF PARTNERSHIP INTERESTS; REGISTRATION OF CERTIFICATES
4.1 Transfers.
A Limited Partner may sell, assign or otherwise transfer any or all of his
interest in the Partnership if he first complies with the following conditions:
4.1.1 The General Partner must consent to the sale, assignment or transfer
of a Limited Partner's interest, and such consent may be withheld by the General
Partner in its sole discretion. The General Partner will not consent to any
sale, assignment, or transfer of any interest or to the admission of any person
as a substituted Limited Partner if, in its opinion, such consent and/or
substitution would result in the Partnership being treated for federal income
tax purposes as an association taxable as a corporation, would result in a
termination of the Partnership within the
8
meaning of the Code, or would constitute a violation of any applicable federal
or state law pertaining to securities regulation.
4.1.2 The transferring Limited Partner and his purchaser, assignee or
transferee must execute and deliver to the Partnership such instruments of
transfer and assignment with respect to such transaction as are in form and
substance satisfactory to the General Partner.
4.1.3 All costs of expenses incurred by the Partnership in connection with
any transfer of any Limited Partner's interest pursuant to this Agreement and/or
in connection with another Person becoming a transferee or substituted Limited
Partner in the Partnership in respect of such interest, including any filing,
recording and publishing costs and fees and costs of counsel, shall be paid by,
and be the responsibility of, the Limited Partner transferring such interest.
4.2 Bankruptcy, Resignation, Dissolution, or Liquidation of the General Partner.
If at any time, due to the Bankruptcy, resignation, dissolution or
liquidation of a General Partner, no General Partner remains, the Partnership
shall dissolve pursuant to Section 5.1 of this Agreement unless a substitute
General Partner is elected by a vote of Limited Partner representing more than
50% of all Limited Partners within 60 days and such Limited Partners vote to
continue the business of the Partnership.
4.3 Occurrences Which Are Not Events of Withdrawal by a General Partner.
In order to prevent an inadvertent dissolution of the Partnership at a
time when the Limited Partners may not vote to approve such dissolution, the
following events shall not constitute a withdrawal of a General Partner:
4.3.1 Making an assignment for the benefit of creditors;
4.3.2 Filing a voluntary petition for relief under Xxxxx 00, Xxxxxx Xxxxxx
Code;
4.3.3 Filing a petition or answer to a petition seeking for a General
Partner any reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law or regulation;
4.3.4 Being adjudged a bankrupt or an insolvent or having an order for
relief entered against such General Partner in any bankruptcy or insolvency
hearing;
4.3.5 Filing an answer or other pleading admitting or failing to contest
the material allegations of a petition filed against such General Partner in a
bankruptcy or insolvency proceeding;
4.3.6 Seeking, consenting to, or acquiescing in the appointment of a
trustee, receiver, or liquidation of such General Partner of all or any
substantial part of its properties; or
4.3.7 The continuation of any proceeding against such General Partner
seeking reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief under any statute, law, or regulation, or the
appointment of a trustee, receiver, or liquidator for
9
such General Partner or all or any substantial part of its properties without
its agreement or acquiescence.
4.4 Transferees as Substitute Partners.
A party who acquires an interest in the Partnership and who becomes a
Substitute Partner as herein provided shall succeed to all of the rights and
powers of a Partner with respect to the interest in the Partnership which is
acquired. A party who does not become a Substitute Partner shall be entitled
only to receive the share of Profits and Losses and the share of distributions
of cash and the return of capital contributions to which the Partner from whom
he acquired his interest in the Partnership would have been entitled with
respect to the interest in the Partnership which is acquired but,
notwithstanding any other provision in this Agreement to the contrary, shall
have no right to require any information or account of Partnership transactions,
no right to inspect the Partnership books and no other rights and powers of a
Partner. A party who does not become a Substitute Partner shall nevertheless be
subject to all of the provisions of this Agreement and to all of the
restrictions and liabilities under this Agreement with respect to the interest
acquired.
4.5 Registration of Certificates, Registration of Transfers and Exchanges. The
Partnership shall maintain all records for the exchange and registration of the
Certificates including all forms of transfer for the Certificates and shall:
(a) Keep at its principal place of business a register (the
"Register") in such form as it may determine, in which, subject to
such reasonable regulations as it may prescribe, it shall provide
for the registration of the Certificates and of transfers thereof;
(b) Ensure that all Certificates presented for transfer shall
be duly endorsed for transfer or be accompanied by a written
instrument of transfer; and
(c) Ensure that each Certificate shall bear an original issue
date.
The Partnership shall comply with Section 4.1 with respect to the transfer
of Certificates. Notwithstanding anything contained herein to the contrary, the
Partnership shall not be required to ascertain whether any transfer or exchange
of Certificates complies with the registration provisions or exemptions from the
Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, applicable state securities law or the Investment Company Act of 1945,
as amended; provided that, if a Certificate is specifically required to be
delivered to the Partnership by a purchaser or transferee of a Certificate, the
Partnership shall be under a duty to examine the same to determine whether it
conforms to the requirements of this Agreement and shall promptly notify the
party delivering the same if such Certificate does not so conform.
4.6 Persons Deemed Owners. Prior to due presentment of a Certificate for
registration or transfer, the Partnership, or any agent or manager of the
Partnership, may treat the person in whose name such Certificate is registered
as the owner of the Certificate for the purpose of receiving distributions
pursuant to this Agreement and for all other purposes whatsoever, and the
Partnership shall not be affected by notice to the contrary.
10
4.7 Mutilated, Lost, Stolen or Destroyed Certificates. If (i) any mutilated
Certificate is surrendered to the Partnership, or (ii) the Partnership receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate, together with indemnity or security sufficient to hold it harmless,
the Partnership shall execute, and upon its written request the Partnership
shall authenticate and deliver, in exchange for any such mutilated Certificate
or in lieu of any such destroyed, lost or stolen Certificate, a new Certificate
of like tenor and principal amount, bearing a number not contemporaneously
outstanding. Upon the issuance of any new Certificate under this Section, the
Partnership may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses in connection therewith. The provisions of this Section are exclusive
and shall preclude (to the extent permissible under applicable law) all other
rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Certificates.
ARTICLE V
DISSOLUTION AND TERMINATION
5.1 Events Causing Dissolution and Termination.
The Partnership shall be dissolved upon (1) the sale of all of the assets
of the Partnership and the distribution of the net proceeds therefrom; (2) at
any time with the written consent of the General Partner and of the Limited
Partners representing 51% of the percentage interest of all Limited Partners;
(3) the resignation, dissolution and liquidation of the General Partner if no
substitute General Partner is elected within 60 days; and (4) any other event as
may be provided by law.
The Partnership shall be terminated when the winding up of Partnership
affairs has been completed following dissolution.
5.2 Winding Up Affairs on Dissolution.
Upon dissolution of the Partnership, the General Partner, or the persons
required or permitted by law to carry out the winding up of the affairs of the
Partnership, shall promptly notify all Partners of such dissolution; shall wind
up the affairs of the Partnership; shall prepare and file all instruments or
documents required by law to be filed to reflect the dissolution of the
Partnership; and, after paying or providing for the payment of all liabilities
and obligations of the Partnership, shall distribute the assets of the
Partnership as provided by law and the terms of this Agreement.
5.3 Distributions on Dissolution.
After dissolution, distributions of cash to Partners on account of their
interests as Partners shall be made in accordance with the provisions of Article
III. Assets of the Partnership may be distributed in kind on the basis of the
then fair market value thereof as determined by an independent appraiser
selected by the distributor appointed by the General Partner, or the persons
carrying out the winding up of the affairs of the Partnership in accordance with
Section 5.2. If assets are distributed in kind, they may be distributed to the
Partners as tenants in common.
11
5.4 Distributions in Accordance with Capital Accounts.
In the event the Partnership is "liquidated" within the meaning of
Treasury Regulations Section 1.704-1(b)(2)(ii)(g), distributions shall be made
in all cases, in accordance with the Partners' positive Capital Account balances
determined after all adjustments to the Partners' Capital Accounts for the
taxable year. Such distribution shall be made within the time periods required
by Treasury Regulation Section 1.704-1(b).
5.4.1 Deemed Distribution and Recontribution.
Notwithstanding any other provisions of this Article VI, in the event the
Partnership is liquidated within the meaning of Treasury Regulations Section
1.704-1(b)(2)(ii)(g) but the Partnership is not required to be dissolved and
wound up pursuant to Sections 5.1 and 5.2, the assets of the Partnership shall
not be liquidated, the Partnership's liabilities shall not be discharged, and
the Partnership's affairs shall not be wound up. Instead, solely for federal
income tax purposes, the Partnership shall be deemed to have contributed the
assets and liabilities of the Partnership in kind to a new Partnership in
exchange for an interest in the new Partnership. Immediately thereafter, the
Partnership shall be deemed to have distributed interests in the new Partnership
to the Partners in proportion to their respective interests in the Partnership.
ARTICLE VI
GENERAL PROVISIONS
6.1 Applicable Law.
This Agreement and the rights of the Partners shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware.
6.2 Counterparts.
This Agreement may be executed in several counterparts and all
counterparts so executed shall constitute one agreement binding on all the
parties hereto, notwithstanding that all the parties are not signatory to the
original or the same counterpart.
6.3 Binding Effect.
Except as herein otherwise provided to the contrary, this Agreement shall
be binding upon, and inure to the benefit of, the Partners and their respective
heirs, executors, administrators, successors and assigns.
6.4 Waiver of Action of Partition.
The Partners agree that the property of the Partnership is not and will
not be suitable for partition and that all the property of the Partnership
should be dealt with as a single, integral unit. Accordingly, each of the
Partners hereby irrevocably waives any and all rights that he may have to
maintain an action for partition of any of the property of the Partnership,
either as a partition in kind or a partition by sale.
12
6.5 Tax Matters Partner.
The General Partner shall represent the Partnership in all administrative
and judicial proceedings involving federal income tax matters as the "Tax
Matters Partner."
13
IN WITNESS WHEREOF, the undersigned, being all of the Partners of the
Partnership, have executed and acknowledged this Agreement as of the day first
above written.
GENERAL PARTNER:
VHS OF ANAHEIM, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
LIMITED PARTNER:
VHS HOLDING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
14
SCHEDULE A
THE ANAHEIM VHS LIMITED PARTNERSHIP
NAMES, ADDRESSES AND PERCENTAGE INTERESTS OF THE PARTNERS
The names and addresses and the percentage interests of the Partners
are set forth below.
NAME AND ADDRESS PERCENTAGE INTEREST CAPITAL
---------------- ------------------- -------
GENERAL PARTNER:
VHS of Anaheim, Inc 2% $ 16,000
00 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
LIMITED PARTNER:
VHS Holding Company, Inc. 98% $ 784,000
00 Xxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
TOTAL: $ 800,000
SCHEDULE B
FORM OF CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND NEITHER THIS CERTIFICATE NOR ANY INTEREST HEREIN MAY BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE
AGREEMENT OF LIMITED PARTNERSHIP OF THIS PARTNERSHIP, THE SECURITIES ACT, AND
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES.
CERTIFICATE FOR PERCENTAGE
INTEREST AS A [GENERAL] [LIMITED] PARTNER OF
THE ANAHEIM VHS LIMITED PARTNERSHIP
Certificate Number __________ Percentage Interest _____%
The Anaheim VHS Limited Partnership, a Delaware limited partnership (the
"Partnership"), hereby certifies that ____________________ (the "Holder") is the
registered owner of _____% of the percentage interests as a [general] [limited]
partner in the Partnership (the "Certificate"). This Certificate shall
constitute a security governed by Article 8 of the Delaware Uniform Commercial
Code-Investment Securities (Del. Code Title 6: 8-101, et. seq.). The rights,
powers, preferences, restrictions and limitations of the percentage interests in
the Partnership are set forth in, and this Certificate and the percentage
interests in the Partnership hereby represented are issued and shall in all
respects be subject to the terms and provisions of, the Agreement of Limited
Partnership, dated as of June 9, 1999, as the same may be amended from time to
time (the "Partnership Agreement"). Capitalized terms used herein and not
otherwise defined have the meaning ascribed to them in the Partnership
Agreement. THIS CERTIFICATE IS TRANSFERABLE ONLY IN ACCORDANCE WITH THE TERMS OF
THE PARTNERSHIP AGREEMENT, WHICH IMPOSES CERTAIN LIMITATIONS AND RESTRICTIONS ON
TRANSFERS OF PERCENTAGE INTERESTS IN THE PARTNERSHIP. By acceptance of this
Certificate, and as a condition to being entitled to any rights and/or benefits
with respect to the percentage interests in the Partnership evidenced hereby, a
registered Holder hereof (including any registered transferee hereof) is deemed
to have agreed, to comply with and be bound by all terms and conditions of the
Partnership Agreement. The Partnership will furnish a copy of the Partnership
Agreement to each Partner without charge upon written request to the Partnership
at its principal place of business or registered office, as the case may be.
Date: ______________, 19___ THE ANAHEIM VHS
LIMITED PARTNERSHIP
By:____________________, General Partner
By:____________________
