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EXHIBIT 3.35
This LIMITED PARTNERSHIP AGREEMENT (this "Agreement") is made and entered
into as of September 24, 1999, by and among IASIS HEALTHCARE HOLDINGS, INC., a
Delaware corporation ("Holdings"), as the general partner (the "General
Partner"), and IASIS HEALTHCARE LP, INC., a Delaware corporation, as the limited
partner, and each other person (as hereinafter defined) who subsequently becomes
a signatory to this agreement as a limited partner (collectively, the "Limited
Partners"). References in this Agreement to "Partner" or "Partners" shall be
references to one or more parties to this Agreement.
ARTICLE I
FORMATION and ORGANIZATION
Section 1.1 Formation. The Partners hereby associate as, form and
organize a limited partnership (the "Partnership") under and pursuant to the
Delaware Revised Uniform Limited Partnership Act (the "Act") and other relevant
laws of the state of Delaware and in accordance with and subject to the terms
and conditions set forth in this Agreement. A certificate of limited partnership
of the Partnership (the "Certificate") has been filed in conformity with the
Act.
Section 1.2 Name. The name of the Partnership shall be
"[ ]".
Section 1.3 Principal Place of Business. The Partnership's principal
place of business shall be at such place or places as the General Partner shall
from time to time determine.
Section 1.4 Purpose. The purpose of the Partnership shall be to engage
in any business or activity in which a limited partnership may engage under the
Act.
Section 1.5 Duration. The Partnership shall commence upon the filing
of the Certificate as specified in Section 17-201 of the Act and shall continue
until dissolved pursuant to Section 8.1.
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Section 1.6 General and Limited Partners. The Partnership shall
consist of the General Partner and the Limited Partners. Except as otherwise
expressly provided in this Agreement, the Limited Partners in their capacity as
such shall neither participate in making the decisions of the Partnership nor
have the power to manage or transact any Partnership business or act for or in
the name of, or otherwise bind, the Partnership. No Limited Partner shall ever
be personally liable for any part of the debts or other obligations of the
Partnership or any General Partner, or be obligated to make contributions to the
Partnership in excess of the Capital Contributions (as defined in Section 2.2)
required to be made by it pursuant to this Agreement.
Section 1.7 Indemnification of General Partner. The Partnership, its
receivers or its trustee, shall indemnify, hold harmless and pay all judgments
and claims against the General Partner, its officers, directors, shareholders,
employees, agents, subsidiaries and assigns from any liability, loss or damage
incurred by reason of any act performed, or omitted to be performed in
connection with the Partnership business, including reasonable costs, attorney
fees and any amount expended in the settlement of any claims of liability, loss
or damage, unless the loss, liability or damage was caused by the intentional
misconduct, gross negligence or knowing violation of law by the indemnified
person.
Section 1.8 Statutory Compliance. All real and personal property owned
by the Partnership shall be deemed owned by the Partnership as an entity and
held in its name, and no Partner shall have any ownership interests in any such
property in its individual name. The General Partner shall execute and, as
appropriate, file any and all documents and instruments as they may reasonably
deem necessary or appropriate with respect to the conduct of business by the
Partnership.
Section 1.9 No Obligation to Replenish Negative Capital Account.
Except as required under the Act, no Partner shall have any obligation at any
time to contribute any funds to replenish any negative balance in its Capital
Account (as defined in Section 2.4).
Section 1.10 Registered Office and Registered Agent. The address of
the registered office of the Partnership in the State of Delaware shall be
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and
the name of the Partnership's registered agent at such address shall be The
Corporation Trust Company.
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ARTICLE II
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
Section 2.1 Initial Partnership Interests
The Partnership interests (the "Interests") as of the date of this
Agreement shall be as set forth in Exhibit A hereto. Exhibit A hereto may be
adjusted from time to time pursuant to the terms of this Agreement to reflect
(a) the admission of additional Limited Partners, (b) any sale, transfer,
assignment or other disposition of all or any part of any Interests of any
Partner or (c) any additional Capital Contributions (as hereinafter defined) of
any of the Partners. An Interest means, with respect to any Partner at any time,
such Partner's entire beneficial ownership interest in the Partnership at such
time, including such Partner's Capital Account, voting rights, and right to
share in profits, losses, cash distributions and all other benefits of the
Partnership as specified in this Agreement, together with such Partner's
obligations to comply with all of the terms of this Agreement.
Section 2.2 Initial Capital Contributions. Each Partner shall
contribute an amount of money or property to the Partnership as its capital
contribution ("Capital Contribution"), as set forth opposite the name of such
Partner on Exhibit A hereto.
Section 2.3 Additional Capital Contributions. The General Partner, in
its discretion, may make additional cash Capital Contributions to the
Partnership for purposes of paying Partnership expenses. Except as required by
the Act or otherwise provided in Section 2.2 and this Section 2.3, no Partner
shall have any obligations to make any Capital Contributions to the Partnership.
Section 2.4 Capital Accounts. Each Partner shall have a capital
account (a "Capital Account") which account shall be (a) increased by the amount
of cash and the fair market value of any property (net of liabilities assumed by
the Partnership and liabilities to which the property is subject) contributed by
such Partner, plus all items of income and gain of the Partnership allocated to
such Partner, (b) decreased by the amount of distributions to such Partner of
cash or other property (net of liabilities assumed by the Partner and
liabilities to which the property is subject), plus all items of loss and
deduction of the Partnership allocated to such Partner. The 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 inter-
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preted and applied in a manner consistent with such Treasury Regulations. Any
allocations pursuant to this Agreement shall comply with the qualified income
offset requirements of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and the
nonrecourse deduction or minimum gain chargeback requirements of Treasury
Regulation Section 1.704-2.
ARTICLE III
PROFITS AND LOSSES
All items of income, gain, loss, deduction and credit of the
Partnership shall be allocated for accounting and tax purposes as follows: one
percent (1%) to the General Partner and ninety-nine percent (99%) to the Limited
Partners to be shared among them in proportion to their Interests.
ARTICLE IV
CONDUCT OF PARTNERSHIP AFFAIRS
Section 4.1 General Partners
(a) The General Partner shall have the right to, and shall
be fully responsible for, the management and control over the business of the
Partnership. The General Partner shall make all decisions affecting the business
of the Partnership, except if consent or approval of other Partners are required
under the Act or pursuant to the terms of this Agreement. Powers granted to the
General Partner hereunder include but not by way of limitation the power to
assign duties, to sign deeds, notes, deeds of trust, contracts and leases and to
assume direction of business operations. The General Partner shall have all
rights, powers and authority generally conferred by the Act or as otherwise
provided by law or necessary, advisable or consistent with accomplishing the
purposes of the Partnership. Further, without limiting the generality of the
foregoing, the General Partner have the right:
(i) to cause this Partnership to enter into other
partnerships as a general or limited partner and to exercise the authority and
to perform the duties required of this Partnership as a partner of any other
partnership;
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(ii) to protect and preserve the title to and the
interest of the Partnership in all of its property and assets, real, personal
and mixed;
(iii) to acquire, hold and dispose of property or
any interest in it;
(iv) to borrow money on behalf of the Partnership
and to encumber the Partnership assets or place title in the name of a nominee
for purposes of obtaining financing;
(v) to employ from time to time, at the expense of
the Partnership, consultants, accountants and attorneys;
(vi) to pay all expenses incurred in the operation
of this Partnership and all taxes, assessments, rents and other impositions
applicable to the Partnership or any part thereof; and
(vii) to assume any and all overall duties imposed
on a General Partner by the Act.
(b) Notwithstanding any other provision of this Agreement to
the contrary, without the prior written consent of all the Partners, the General
Partner shall have no authority to:
(i) do any act in contravention of this Agreement;
(ii) do any act which would make it impossible to
carry on the ordinary business of the Partnership, except as otherwise provided
in this Agreement;
(iii) knowingly perform any act that would subject
any other Partner to liability as a general partner in any jurisdiction;
(iv) dissolve, liquidate, consolidate or merge the
Partnership or authorize or agree to any of the foregoing;
(v) sell or lease, or otherwise dispose of, all or
substantially all of the assets of the Partnership, other than in its ordinary
course of business, or authorize or agree to any of the foregoing; and
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(vi) amend this Agreement.
Section 4.2 Tax Matters Partner. Holdings shall, in its capacity as a
General Partner of the Partnership, be the Tax Matters Partner for purposes of
Section 6231(a)(7) of the Internal Revenue Code of 1986, as amended (the
"Code"). Holdings shall cause to be prepared and shall sign all returns of the
Partnership, make any election which is available to the Partnership, and
monitor any governmental tax authority in any audit that such authority may
conduct of the Partnership's books and records or other documents.
Each Partner shall take all actions required to cause the Limited
Partner to be (and continue as) such Tax Matters Partner and, as requested by
the Limited Partner, to otherwise authorize and appoint the Limited Partner as
that party with the sole authority to handle all tax matters of the Partnership.
Each Partner agrees to execute, certify, deliver, file and record at appropriate
public offices or deliver to the Limited Partner such documents as may be
requested by the Limited Partner to facilitate the handling of any tax matter as
the Limited Partner, in its sole discretion, deems necessary.
Section 4.3 Limited Partners.
(a) No Management and Control: The Limited Partner shall
take no part in the control, conduct or operation of the Partnership and shall
have no right or authority to act for or bind the Partnership including during
the winding up period following dissolution of the Partnership. If the General
Partner has been removed and the Partnership has been dissolved, one or more
Limited Partners may act for and bind the Partnership during the winding up
period, as approved by a majority of all Partners.
(b) Limitations: No Limited Partner shall have the right or
power to: (i) withdraw any part of its Capital Contribution except as a result
of the dissolution of the Partnership as provided in Article VIII or as
otherwise provided by law; (ii) bring an action for partition against the
Partnership; (iii) cause the termination and dissolution of the Partnership,
except as set forth in this Agreement; or (iv) demand or receive (x) interest on
its Capital Contributions or (y) any property from the Partnership other than
cash except as provided in Article VI. No Limited Partner shall have priority
over any other Limited Partner either as to the return of Capital Contributions
or as to items of Partnership income, gain, loss, deduction and
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credit, or distributions. Other than upon dissolution of the Partnership as
provided by this Agreement, there has been no time agreed upon when the Capital
Contribution of each Limited Partner may be returned.
Section 4.4 Compensation of Partners and Affiliates. No Partner shall
receive any compensation for its services to the Partnership, except (i)
reimbursement to the General Partner for costs and expenses reasonably incurred
by it on behalf of the Partnership, and (iii) compensation paid to Partners and
Affiliates of Partners which are engaged on behalf of the Partnership to provide
services or materials that are, in the reasonable judgment of the General
Partners, necessary or desirable for the Partnership.
Section 4.5 Good Faith Actions. No Partner, nor any of its officers,
directors, shareholders, constituent partners, trustees, representatives, agents
or employees, shall be liable to the Partnership or to any of the other Partners
for any action taken (or any failure to act) by it in good faith on behalf of
the Partnership and reasonably believed by it to be authorized or within the
scope of its authority hereunder, unless such action (or failure to act)
constitutes fraud, gross negligence or willful breach hereof or other willful
misconduct.
Section 4.6 Meetings of Partners. Meetings of Partners shall be held
at the Partnership's principal place of business as determined in Section 1.3,
or any other place agreed upon by the Partners. Meetings shall be held only when
called by a General Partner.
ARTICLE V
BOOKS and RECORDS
Section 5.1 Books and Records.
The General Partner shall keep complete and appropriate records and
books of account of all transactions and other matters related to the
Partnership's business. Except as otherwise expressly provided herein, such
books and records shall be maintained in accordance with generally accepted
accounting principles, consistently applied, and shall reflect the allocations
made pursuant to Article III. All such books and records shall be made available
at the principal office of the Partnership and shall be open to the reasonable
inspection and examination of the
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Partners or their duly authorized representatives during normal business hours.
Each Partner has the right to inspect, and copy during normal business hours,
the Partnership's records required to be maintained pursuant to this Section
5.1, and to obtain from the General Partners, promptly after becoming available,
a copy of the Limited Partnership's federal, state and local income tax or
information returns for each year.
ARTICLE VI
DISTRIBUTIONS
Section 6.1 Withdrawal. No Partner shall have the right to withdraw or
demand distributions of any amount in its Capital Account.
Section 6.2 Distributions. Distributions shall be made by the
Partnership to the Partners in the sole discretion of Holdings in its capacity
as a General Partner, to the extent of available cash, after servicing all
Partnership debt and provision of reasonable reserves for expenses and
contingencies, which distributions shall be made among the Partners in the
following proportion: one percent (1%) to the General Partner and ninety-nine
percent (99%) to the Limited Partners, to be allocated among them in accordance
with their respective partnership interests.
ARTICLE VII
TRANSFERS OF PARTNERSHIP INTERESTS
Section 7.1 Transfers by General Partners. No General Partner may
sell, transfer, assign, hypothecate, pledge or otherwise dispose of or encumber
all or any part of its Interest in the Partnership (whether voluntarily,
involuntarily or by operation of law), provided, however, that a General Partner
may pledge its Interest in the Partnership to secure the obligations of such
General Partner (as guarantor or otherwise) in respect of any bank financings,
and any purchaser of such Interest from the pledgee thereof in a sale which is
consummated in accordance with the Uniform Commercial Code shall be entitled to
all of the rights and benefits in respect of such Interest as such General
Partner had immediately prior to such sale.
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Section 7.2 Transfers by Limited Partners; Substitute Limited
Partners. No Limited Partner may sell, transfer, assign, hypothecate, pledge or
otherwise dispose of or encumber all or any part of its Interest except with the
written consent of the General Partner, provided, however, that a Limited
Partner may pledge its Interest in the Partnership to secure the obligations of
such Limited Partner (as guarantor or otherwise) in respect of any bank
financings, and any purchaser of such Interest from the pledgee thereof in a
sale which is consummated in accordance with the Uniform Commercial Code shall
be entitled to all of the rights and benefits in respect of such Interest as
such Limited Partner had immediately prior to such sale. Except as provided in
the preceding sentence, a Person to whom an Interest is disposed may be admitted
to the Company as a Limited Partner only with the consent of the General
Partner; and the General Partner's consent may be given or withheld in the
General Partner's sole discretion.
Section 7.3 Void Assignments. Any purported sale, transfer,
assignment, hypothecation, pledge or other disposition or encumbrance by a
Partner of any Interest in the Partnership not made strictly in accordance with
the provisions of this Article VII or otherwise permitted by this Agreement
shall be entirely null and void.
Section 7.4 Admission of Additional Limited Partners. The General
Partner may admit persons to the Partnership as additional Limited Partners on
such terms as all of the Partners shall determine; provided, that (a) each such
person shall execute a counterpart of this Agreement (as modified or amended
from time to time) and such other instruments necessary to admit such person to
the Partnership and to confirm the undertaking of such person to be bound by all
terms and provisions of this Agreement and (b) such person shall have paid or
cause to be paid all of the reasonable expenses of the Partnership connected
with such admission.
ARTICLE VIII
DISSOLUTION AND LIQUIDATION
Section 8.1 Dissolution. The Partnership shall be dissolved only upon
the first to occur of any one or more of the following:
(a) The agreement of the General Partner and Limited
Partners owning more than 66 2/3% of the outstanding interests to dissolve the
Partnership;
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(b) The sale, transfer or other disposition of all or
substantially all of the assets of the Partnership (not including a pledge,
assignment or transfer as collateral security for the performance by the
Partnership of its obligations with respect to any loans made for the purpose of
developing, constructing or operating the Project) or destruction thereof (if
the Partners decide not to rebuild such assets and continue the business of the
Partnership), unless all Partners agree to continue the Partnership for the
purpose of the receipt and collection of any payments or other consideration due
to it or for the fulfillment of any continuing obligations it may have, in which
event the Partnership shall be dissolved as soon as it has fulfilled any such
continuing obligations or has collected all such payments or consideration, or
the General Partner has reasonably determined that there is no material
likelihood that any further payments or consideration will be collected by the
Partnership;
(c) The acquisition by a Partner of all of the Interests of
all other Partners;
(d) The occurrence of an event specified under the laws of
Delaware as one effecting such dissolution, except that if, under the terms of
this Agreement, the Partnership is not required to terminate, and the
requirements for reconstituting the Partnership have been satisfied, then the
Partnership shall immediately be reconstituted and reformed pursuant to all the
applicable terms, conditions and provisions of this Agreement.
Section 8.2 Winding Up Affairs and Distribution of Assets.
(a) Upon dissolution of the Partnership (except dissolution
pursuant to Section 8.1(c)), and in the absence of an election to continue the
business of the Partnership pursuant to Section 8.1(b), Section 8.2, or its
reconstitution under Section 8.1(d), the General Partner or, if there is no
General Partner, a person who shall be designated for such purposes by unanimous
vote of the other Partners (a General Partner or the person so designated
hereinafter referred to as the "Liquidating Agent"), shall as soon as
practicable, wind up the affairs of the Partnership and sell and/or distribute
the assets of the Partnership. The Liquidating Agent shall have all of the
rights and powers with respect to the assets and liabilities of the Partnership
in connection with the liquidation and termination of the Partnership that the
General Partner would have with respect to the assets and liabilities of the
Partnership during the term of the Partnership, and the Liquidating Agent is
hereby expressly authorized
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and empowered to execute any and all documents necessary or desirable to
effectuate the liquidation and termination of the Partnership and the transfer
of any assets. The Liquidating Agent shall apply and distribute the proceeds of
the sale or liquidation of the assets and property of the Partnership in the
following order of priority, unless otherwise required by mandatory provisions
of applicable law:
(i) to pay (or to make provision for the payment
of) all creditors of the Partnership (including Partners who are creditors of
the Partnership), in the order of priority provided by law or otherwise, in
satisfaction of all debts, liabilities or obligations of the Partnership due
such creditors;
(ii) after the payment (or the provision for
payment) of all debts, liabilities and obligations of the Partnership in
accordance with clause (i) above, any balance remaining shall be distributed to
the Partners having positive Capital Accounts in relative proportion to those
Capital Accounts.
(b) The Liquidating Agent shall have sole discretion to
determine whether to liquidate all or any portion of the assets and property of
the Partnership and the consideration to be received therefor.
Section 8.3 Termination. Upon compliance with the distribution plan
set forth in Section 8.2(a), the Partnership shall cease to exist as a
Partnership, and the Liquidating Agent shall execute, acknowledge and cause to
be filed an appropriate certificate evidencing dissolution and termination of
the Partnership.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Notices. Any notice to be given pursuant to this Agreement
shall be given in writing and shall be delivered personally, electronically,
telegraphically or by express, certified or registered mail (i) to the
Partnership at its principal place of business set forth in Section 1.3, and
(ii) to a Partner at its address set forth on Exhibit A hereto, or at such other
address as such Partner may hereafter designate in writing to the other
Partners.
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Section 9.2 Entire Agreement. This Agreement supersedes all prior
agreements and understandings among the Partners with respect to the subject
hereof.
Section 9.3 Modification. This Agreement may be modified only upon the
prior written consent of each Partner.
Section 9.4 Waivers. No waiver or any breach of any of the terms of
this Agreement shall be effective unless such waiver is in writing and signed by
the Partner against whom such waiver or breach is claimed. No waiver of or any
breach shall be deemed a waiver of any other subsequent breach.
Section 9.5 Severability. If any provision of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity, legality or
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, unless such provision was fundamental to the objectives of
this Agreement.
Section 9.6 Further Assurances. Each Partner shall execute such deeds,
assignments, endorsements and other instruments and documents and shall give
such further assurances as shall be reasonably necessary to perform its
obligations hereunder.
Section 9.7 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of Delaware and without reference to any
conflict of law or choice of law principles thereof.
Section 9.8 Counterparts. This Agreement may be executed in any number
of counterparts or with counterpart signature pages, each of which shall be
deemed an original, but all of which shall constitute one and the same
instrument.
Section 9.9 Remedies Not Exclusive. Whenever the Partnership or any
Partner exercises one or more of the remedies provided for herein, such exercise
shall not preclude the exercise of any one or more remedies otherwise available
to it hereunder (unless this Agreement expressly provides otherwise), under
contract, at law, in equity or otherwise.
Section 9.10 Power of Attorney. Each Partner constitutes and appoints
each General Partner its true and lawful attorney with full power of
substitution to make, execute, sign, acknowledge and file a certificate of
limited partnership
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and/or amendments thereto expressly authorized hereby, and upon the
Partnership's termination, a certificate of dissolution of the Partnership. The
grant of a power of attorney hereunder is coupled with an interest and shall
survive a Partner's disability, incompetence, death or assignment by such
Partner of its Interest pursuant to this Agreement.
Section 9.11 Successors and Assigns. Except as expressly provided to
the contrary herein, this Agreement shall be binding upon and inure to the
benefit of the Partners and their respective successors and permitted assigns.
Section 9.12 Exhibits. All exhibits referenced in this Agreement shall
be incorporated herein by such reference and shall be deemed to be an integral
part hereof.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the undersigned Partners have duly executed this
Agreement as of the day and year first above written.
GENERAL PARTNER:
IASIS HEALTHCARE HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Secretary
LIMITED PARTNER:
IASIS HEALTHCARE LP, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Secretary
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IN WITNESS WHEREOF, the undersigned Limited Partner has duly executed
this Agreement as of the 11th day of October, 1999.
LIMITED PARTNER:
IASIS HEALTHCARE CORPORATION
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: General Counsel and Secretary
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EXHIBIT A
PARTNERS' PERCENTAGE INTEREST
AS OF SEPTEMBER 24, 1999
Percentage Capital
Partner Interest Contribution
------- -------- ------------
General Partner
---------------
IASIS Healthcare Holdings, Inc. 1.00% $1.00
000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Limited Partner
---------------
IASIS Healthcare LP, Inc. 99.00% $99.00
000 Xxxxxxxx Xxxx. ------ ------
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Total 100.00% $100.00
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EXHIBIT A
PARTNERS' PERCENTAGE INTEREST
AS OF OCTOBER 11, 1999
Percentage Capital
Partner Interest Contribution
------- -------- ------------
General Partner
---------------
IASIS Healthcare Holdings, Inc. 1.00% $1.00
000 Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Limited Partner
---------------
IASIS Healthcare Corporation 99.00% $99.00
000 Xxxxxxxx Xxxx. ------ ------
Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Total 100.00% $100.00
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