1
Exhibit 10.36
PALESTINE PRINCIPAL HEALTHCARE LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
THIS AGREEMENT OF LIMITED PARTNERSHIP, made and entered into this
17th day of July, 1996, by and among PRINCIPAL HOSPITAL COMPANY, a Delaware
corporation with its principal place of business at 0000 Xxxxxxx Xxxxxxx Xxxxx,
Xxxxx X-00, Xxxxxxxxx, XX 00000, Attn: President ("Principal") as the General
Partner, and those other persons identified on Schedule A as limited partners
(the "Limited Partners"),
W I T N E S S E T H :
WHEREAS, the parties hereto desire to form a limited
partnership upon the terms and conditions set forth in this Agreement of Limited
Partnership (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 swear to, agree and certify as
follows:
ARTICLE I
General
1.1. Formation.
The parties hereto hereby agree to form a limited partnership
under and pursuant to the Texas Revised Limited Partnership Act (the "Act"),
subject to the terms and conditions contained in this Agreement.
1.2. Name.
The name of the Partnership shall be Palestine Principal
Healthcare Limited Partnership. The business of the Partnership may be conducted
under any name or names chosen by the General Partner in its discretion from
time to time and reflected in an amendment to the Certificate of Limited
Partnership duly recorded in the Office of the Secretary of State of Texas.
2
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 Texas, and shall continue until December 31, 2036,
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
000 Xx. Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, and the Partnership's
registered agent for service of process at such location shall be CT
Corporation System. The location of the Partnership's registered office and
identity of the registered agent may be changed from time to time by the
General Partner, without the necessity of obtaining consent from any Limited
Partners, upon filing a statement of change with the Office of the Secretary
of State of Texas in the manner provided in the Act.
1.5. Filings.
The General Partner and the Limited Partners, acting either
directly or through the General Partner as attorney-in-fact or through such
person or persons as the General Partner may appoint as attorney-in-fact,
shall sign and file such additional and further certificates, affidavits, and
other documents, and amendments thereto, as may be necessary to enable the
Partnership to continue to conduct its business.
1.6. Purpose.
The purpose of the Partnership shall be (i) to own and operate
the Project; and (ii) 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;
provided however, the Partnership shall not engage in any activities which are
not in conformance with the Ethical and Religious Directives for Catholic
Health Care Services as approved by the National Conference of Catholic
Bishops or are inconsistent with the mission and philosophy of the Sisters of
the Holy Family of Nazareth.
1.7. Powers.
The Partnership shall have all powers reasonably necessary to
achieve its purposes hereunder. Without limiting the foregoing, the
Partnership is expressly authorized to do the following:
(i) acquire, by purchase or otherwise, the Project;
(ii) take and hold property, real, personal and mixed,
in the Partnership's name;
- 2 -
3
(iii) enter into any agreement with any person, firm or
corporation, including the General Partner, or any Affiliate
of the General Partner, requiring such person to perform
services for the Partnership or to assist the General
Partner in the management of the Partnership or its
business, provided approval of the Partners is received and
further provided:
(a) the compensation to be paid to the General Partner
or any of its Affiliates shall be consistent with the
provisions of this Agreement,
(b) the services to be performed shall be appropriate
for the management of the Partnership or its business, and
(c) the agreement shall be no less favorable to the
Partnership than it would be if negotiated on an
arm's-length basis with an independent third party.
(iv) borrow money from third parties, the General
Partner or Affiliates of the General Partner, but excluding
other limited partnerships sponsored by Affiliates of the
General Partner, and issue evidences of indebtedness in
furtherance of any or all of the purposes of the
Partnership, and secure the same by grant of security
interests in assets of the Partnership;
(v) open and maintain one or more Partnership bank
accounts in which all monies received by the Partnership
shall be deposited;
(vi) lease, sell, exchange, refinance or grant an
option for the sale of all or any portion of the real or
property of the Partnership, including the Project, at such
rental, price or amount, for cash, securities or other
property, and upon such terms as the General Partner may
deem appropriate;
(vii) execute and deliver deeds, deeds of trust, notes,
leases, subleases, mortgages, bills of sale, financing
statements, security agreements, easements and any and all
other instruments appropriate to the conduct of the
Partnership's business and the financing thereof;
(viii) lend its funds or make guarantees of others upon
such terms as the General Partner shall determine, but
excluding loans to, or guarantees of, the General Partner
and any of its affiliates, including other limited
partnerships sponsored by Affiliates of the General Partner;
(ix) retain counsel, accountants, financial advisers
and other professional personnel; and
(x) engage in such other activities and incur such
other expenses as may be necessary or appropriate for the
furtherance of the Partnership's purposes, and
- 3 -
4
execute, acknowledge and deliver any and all instruments
necessary to the foregoing.
1.8. Principal Place of Business.
The principal place of business of the Partnership shall be
located at 0000 Xxxxx Xxxx 000, Xxxxxxxxx, XX 00000, Attn: President, The
General Partner may from time to time by notice to all Partners change the
address of the principal place of business of the Partnership.
1.9. Liability of Partners.
No Limited Partner, by virtue of being a limited partner
hereunder, shall be personally liable for the debts, liabilities or
obligations of the Partnership beyond the extent of such Limited Partner's
capital contribution, together with the undistributed share of net profits of
the Partnership from time to time credited to such Limited Partner's capital
account. The amount of cash and other property contributed by a Limited
Partner are the only contributions that a Limited Partner shall be required to
make to the Partnership for the satisfaction of the debts, liabilities or
obligations of the Partnership.
The General Partner shall not be personally liable to any
Limited Partner for repayment of capital contributions of the Limited Partner
or, except as expressly provided in this Agreement, have any obligation to
make any advance or contribution of capital to the Partnership. The General
Partner, however, is liable for all recourse obligations, unlike Limited
Partners, who have no such personal liability, either to third parties, to the
Partnership or to other Partners, except as stated above or otherwise required
by the Act.
1.10. Definitions.
As used herein, the following terms have the indicated
meanings:
1.10.1. "Act" shall have the meaning set forth in
Section 1.1 hereof.
1.10.2. "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.
1.10.3. "Capital Account" shall have that meaning assigned
pursuant to Section 2.4 hereof.
1.10.4. "Capital Contribution" means the amount contributed
to the Partnership by each Partner.
- 4 -
5
1.10.5. "Cash Flow" means all cash receipts of the
Partnership (other than capital contributions), less Partnership expenses
(other than expenses such as depreciation and amortization that do not require
cash expenditures), payment of Partnership debts and amounts retained as a
reserve in the sole discretion of the General Partner.
1.10.6. "Code" means the Internal Revenue Code of 1986, as
amended.
1.10.7. "General Partner" means Principal, together with any
additional or substitute General Partner admitted pursuant to the provisions
of this Agreement.
1.10.8. "Limited Partners" means the persons admitted
pursuant to the provisions of this Agreement, but excluding assignees of
Limited Partners as to which the General Partner have not consented to
substitution.
1.10.9. "Management Agreement" means the management
agreement of even date herewith between Principal and the Partnership.
1.10.10. "Mother Xxxxxxx" means Mother Xxxxxxx Hospital
Regional Health Care Center.
1.10.11. "Partners" means collectively the General Partner
and the Limited Partners. Reference to a "Partner" shall mean any one of the
Partners.
1.10.12. "Partnership" means the Limited Partnership
continued by this Agreement.
1.10.13. "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 net fair market value as of the
date of contribution.
1.10.14. "Percentage Interest" means the interest of each
Partner, as set forth on Schedule A.
1.10.15. "PPI" shall mean Palestine-Principal, Inc.
1.10.16. "Project" shall mean Memorial Hospital, a 103 bed
general hospital in Palestine, Texas.
1.10.17. "Securities Act" means the Securities Act of 1933,
as amended, or any similar law then in effect.
- 5 -
6
1.10.18. "Trailing EBITDA" means the earnings before income
taxes, depreciation and amortization of the Partnership for the most recently
ended fiscal year of the Partnership, all in accordance with generally accepted
accounting principles.
ARTICLE II
Capital
2.1. Capital Contributions.
The capital contributed or agreed to be contributed by each
Partner is set forth in Schedule A attached to this Agreement.
2.2. Additional Capital Contributions.
2.2.1. If the Partners unanimously determine that the
Partnership requires additional capital contributions, each of the Partners
shall contribute the funds required according to such Partner's Percentage
Interest. The total amount and timing of such additional capital contributions
shall be determined by the Partners. Unless otherwise specified by the Partners
in the determination of additional capital contribution, the General Partner
shall specify the payment date for additional capital contributions upon ten
days prior written notice to the Partners consistent with such determination.
2.2.2. Notwithstanding the foregoing, at the election of
Mother Xxxxxxx, PPI shall contribute the entire additional capital contribution
on behalf of Mother Xxxxxxx, in which event such additional capital contribution
shall be treated as a loan to Mother Xxxxxxx followed by a contribution of
capital by Mother Xxxxxxx. Amounts up to $250,000 treated as loaned by PPI to
Mother Xxxxxxx shall bear interest at the Prime Rate plus 1%, and amounts
exceeding $250,000 shall bear interest at the Prime Rate plus 1 1/2%.
2.2.3. The provisions of this Section 2.2 constitute an
agreement among the Partners only and are not intended to create any right or
interest on behalf of any person who is not a Partner or require any Partner to
make a capital contribution for the benefit of any person who is not a Partner.
2.3. Withdrawal and Return of Contributions.
No Partner shall have the right to withdraw his contribution
or to receive any funds or 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.
- 6 -
7
2.4. Capital Accounts.
The Partnership will maintain for each Partner an account to be
designated its "capital account," which will be determined and maintained
throughout the full term of the Partnership, in accordance with the capital
accounting rules of Treasury Regulation Section 1.704-l(b)(2)(iv) including any
amendments thereto or successor regulations.
2.5. No Interest on Capital.
No interest shall be paid on capital contributions or on
balances in capital accounts.
2.6. Effect of Transfer of Partnership Interest.
Upon the transfer by any Partner of any or all of its
Partnership interest, pursuant to the provisions of Article V of this Agreement,
the proportionate amount of its respective capital account balance, determined
in accordance with Section 2.4 hereof, shall be transferred to the transferee of
such Partnership interest; provided, however, that no transfer of any
Partnership interest shall, in and of itself, relieve the transferor of any
obligation to the Partnership, including, but not limited to, such transferor's
obligation, if any, to contribute to the capital of the Partnership.
ARTICLE III
Allocation of Income and Loss: Cash Distributions
3.1. Distribution of Cash Flow.
Cash Flow shall be apportioned among and distributed to the
Partners in proportion to their Percentage Interest.
3.2. Profits and Losses.
"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:
(a) Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in computing Profits or Losses
pursuant to this Section 3.3 shall be added to such taxable income or loss; and
(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 Regulation Section
- 7 -
8
1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing Profits
or Losses pursuant to this Section 3.3 shall be subtracted from such taxable
income or loss.
3.3. Allocation of Profits and Losses.
3.3.1. Except to the extent provided in Sections 3.4 hereof,
the Profits of the Partnership shall be allocated as follows:
(a) First, to the Partners in proportion to their negative
capital accounts until all negative capital accounts are eliminated;
(b) Next, to the Partners until their capital accounts are in
proportion to their Percentage Interest;
(c) All remaining Profits shall be allocated to the Limited
Partners and the General Partner in proportion to their Percentage Interest.
3.3.2. The Losses of the Partnership shall be allocated to the
Limited Partners and the General Partner in proportion to their Percentage
Interest.
3.4. Special Allocations.
3.4.1. In the event the Limited Partners unexpectedly receive
any adjustments, allocations, or distributions described in Treasury Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), or
1.704-1(b)(2)(ii)(d)(6), items of Partnership income and gain shall be specially
allocated to the Limited Partners in an amount and manner sufficient to
eliminate, to the extent required by the Treasury Regulations, the negative
capital account created by such adjustments, allocations or distributions as
quickly as possible. For purposes of the preceding sentence, Partners' Capital
Accounts shall be reduced for the items described in Treasury Regulation Section
1.704-1(b)(2)(ii)(d)(4), (5), and (6). The provisions of this Section 3.4.1 are
intended to comply with the requirements of Treasury Regulation Section
1.704-1(b), including any amendments or successor regulations thereto, and shall
be so interpreted.
3.4.2. If there is a net decrease in Partnership minimum gain
as defined in Regulation Section 1.704-2(d) during a Partnership taxable year,
then each Partner must be allocated items of income and gain for such year in an
amount equal to such Partner's share of the net decrease in Partnership minimum
gain as computed under Regulation Section 1.704-2(g)(2). The provisions of this
Section 3.4.2 are intended to comply with the requirements of Regulation Section
1.704-2, including any amendments or successor regulations thereto, and shall be
so interpreted.
3.4.3. Notwithstanding any provision of this Article III to
the contrary, to the extent allocations of loss or deductions to a Limited
Partner would cause such Limited Partner to have a negative Capital Account
balance, or increase the negative balance in a Limited Partner's
- 8 -
9
Capital Account, such loss or deduction shall be allocated among those Limited
Partners with positive Capital Account balances to the extent thereof and in
proportion thereto, with any remaining loss or deduction being allocated to the
General Partner. For the purposes of this Section 3.4.3, distributions made
prior to or contemporaneous with any allocation to a Limited Partner shall be
reflected in such Partner's Capital Account prior to making such allocation to
such Partner, and a Partner's Capital Account shall be credited to the extent
(i) such Partner is unconditionally obligated to make additional contributions
to the Partnership; (ii) such Partner is unconditionally obligated to fund a
deficit in his Capital Account upon liquidation; and (iii) such Partner is
deemed to be obligated to restore his Capital Account balance pursuant to
Regulation Sections 1.704-2(s)(1) and 1.704-2(i)(5).
3.4.4. In no event shall the General Partner's interest in
each item of income, gain, loss, deduction or credit be less than 1% of each
such item at all times during the existence of the Partnership.
3.5. Allocation for Purposes of Nonrecourse Liabilities.
Solely for purposes of Regulation Sections 1.752-3(a)(3),
Partnership profits shall be allocated to the Limited Partners and the General
Partner in proportion to their Percentage Interest.
3.6. Modification.
The General Partner, without the consent of the Limited
Partners, may modify the provisions of Article III hereof 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 III 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 Profits and Losses under
Article III hereof to conform, in accordance with the requirements of Section
704 of the Code, to the distributions provided in Article III; or (iii) 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.
3.7. Consequences of Distributions.
Upon the determination to distribute funds in any manner
expressly provided in this Article III, 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.
- 9 -
10
3.8. Partner Admission Date; Allocation of Profits, Losses and
Distributions in Respective Partnership Interest Transferred.
A purchaser of the Partnership interest of a Limited Partner
shall become a Limited Partner on the date that both (a) its capital
contribution, and (b) the other Partners accept such purchaser's subscription.
If all or any portion of a Partnership interest is transferred during any fiscal
year of the Partnership, Profits or Losses attributable to such Partnership
interest for such fiscal year shall be divided and allocated between a
transferor and the transferee based on the time each such party was, according
to the books and records of the Partnership, the owner of record of the
Partnership interest transferred during the year in which the transfer occurs
utilizing any permissible convention selected by the General Partner.
ARTICLE IV
Rights, Duties and Obligations of the General Partner
4.1. General Partner to Manage Business.
Subject to Section 4.8 hereof, the General Partner shall
manage and control the business of the Partnership with full, exclusive and
complete discretion in the management and control of said business, and shall
make all decisions affecting said business. The Limited Partners, as such, shall
not and shall have no right or power to take part in the control of the
business, affairs and/or operations of the Partnership. The General Partner may,
from time to time, delegate any or all of such responsibilities to third parties
which, under the General Partner's supervision, will perform such acts and
services for the Partnership as the General Partner may approve.
4.2. Powers of the General Partner.
Subject to Section 4.8 hereof, the General Partner shall have
all powers necessary or desirable to carry out the purposes, business and
objectives of the Partnership and its duties as set forth herein and all of the
power and authority in connection therewith as may be specifically stated in
this Agreement or as may be otherwise provided by law. The General Partner
specifically has the power and authority to execute agreements, at the
Partnership's expense and in its name, for the acquisition of the Project and
the financing in connection therewith.
4.3. Tax Matters Partner.
The General Partner shall serve as the Tax Matters Partner
pursuant to Section 6231(a)(7)(A) of the Code, and shall take such action as
may be required to register such status with the Internal Revenue Service. The
Tax Matters Partner ("TMP") is responsible for all administrative and judicial
proceedings for the assessment and collection of tax deficiencies or the refund
of tax overpayments arising out of a Partner's distributive share of items of
income, deduction, credit and/or of any other Partnership item (as that term is
defined in the Code or in regulations issued
- 10 -
11
\
by the Internal Revenue Service) allocated to the Partners affecting any
Partner's tax liability. The TMP shall promptly give notice to all Partners of
any administrative or judicial proceedings pending before the Internal Revenue
Service involving any Partnership item and the progress of any such proceeding.
Such notice shall be in compliance with such regulations as are issued by the
Internal Revenue Service. The TMP shall have all the powers provided to a tax
matters partner in Sections 6221 through 6233) of Code, including the specific
power to extend the statute of limitations with respect to any matter which is
attributable to any Partnership item or affecting any item pending before the
Internal Revenue Service and to select the forum to litigate any tax issue or
liability arising from Partnership items. The TMP may resign his position by
giving thirty (30) days written notice to all Partners, whereupon the Partners
shall designate a new TMP. The TMP shall be entitled to reimbursement for any
and all reasonable expenses incurred with respect to any administrative and/or
judicial proceedings affecting the Partnership.
4.4. Duties of the General Partner.
4.4.1. The General Partner shall use its best efforts to
carry out the purposes, business and objectives of the Partnership; shall devote
such time to Partnership business as shall be reasonably required to carry out
such purposes, business and objectives; and shall use its best efforts to assure
the efficient management and operation of the Partnership.
4.4.2. The General Partner shall supervise the preparation and
filing of the tax returns of the Partnership; shall, on behalf of the
Partnership, make such tax elections and determinations as appear to be
appropriate; and shall advise the Limited Partners of their shares of tax
liabilities.
4.4.3. The General Partner shall cause the Partnership at all
times to maintain such insurance, in such amounts and against such other risks,
as the General Partner deem advisable to protect the Partnership.
4.4.4. The General Partner shall maintain separate financial
accounts so that the funds of the Partnership shall be kept separate and will
not be commingled with any other funds.
4.5. Compensation of the General Partner and its Affiliates.
The General Partner shall receive no compensation for their
services as General Partner, except that the General Partner shall be entitled
to its interest in Profits, Losses, and Cash Flow as set forth elsewhere in this
Agreement. The General Partner shall be entitled to receive repayment of any
moneys lent the Partnership, together with interest, if any, provided in
connection with any such loan. The General Partner shall be entitled to receive
reimbursement for expenses as set forth in Article IX hereof. Affiliates of the
General Partner shall be entitled to receive reasonable compensation for
services rendered to the Partnership, provided the Partners approve the terms of
the services and compensation and the requirements of Section 1.7(iii) are met.
- 11 -
12
4.6. Other Interests of Partners.
Any Partner may engage in other business including business of
a nature which is the same as or similar to the business of this Partnership
without duty or obligation to account to the Partnership in connection
therewith. Any Partner may, in his individual capacity, lend money to or
otherwise deal with the Partnership and shall have no liability or obligation to
the Partnership in connection with such dealings unless the dealings are
manifestly unfair or the benefits received by such Partner are unreasonable.
4.7. Amendment of Partnership Agreement.
Except as set forth below, no amendment to this Agreement
shall be made without the consent of all of the Partners. Notwithstanding the
provisions immediately above, amendments to reflect any one or more of the
following events may be made by the General Partner when required in order to
carry out the other provisions of this Agreement and to comply with law and no
such amendments shall require the vote, approval or written consent of any of
the other Partners:
4.7.1. Transfer of any limited partnership interest pursuant
to Article V.
4.7.2. Change in the name of the Partnership, the location
of the principal place of business of the Partnership,
the name or place of residence of a Partner, the
location of the Partnership's registered office or the
identity of the Partnership's registered agent.
4.7.3. Substitution of a Limited Partner pursuant to Article
V.
4.7.4. Correction of a nonsubstantive error in this Agreement;
and
4.7.5. Amendments necessary to cause the Agreement to comply
with applicable law, regulation or rule; including, but
not limited to, any amendment deemed necessary by the
General Partner to permit the Partnership to be treated
as a partnership for federal income tax purposes.
4.8. Major Decisions Requiring Unanimous Partner Approval.
Notwithstanding anything herein to the contrary, the
following described actions shall be referred to as "Major Decisions" and shall
require the affirmative approval of all of the Partners:
4.8.1. The replacement, modification, consolidation,
refinancing or extension of any mortgage or other
financing instrument covering any property owned by
the Partnership.
- 12 -
13
4.8.2. Confessing a judgment against the Partnership in
connection with any threatened or pending legal action.
4.8.3. Any act in contravention of this Agreement.
4.8.4. Any act which would make it impossible to carry on
the ordinary business of the Partnership, except as
otherwise provided in this Agreement.
4.8.5. The knowing performance of any act that would subject
any Limited Partner to liability as a General Partner
in any jurisdiction.
4.8.6. Dissolution or liquidation of the Partnership.
4.8.7. The sale, lease, or transfer of all or substantially
all of the Partnership's assets.
4.8.8. The filing of a voluntary petition or initiation of
proceedings to have the Partnership adjudicated
bankrupt or insolvent, or the consent to the
institution of bankruptcy or insolvency proceedings
against the Partnership, or the filing of a petition
seeking or consenting to reorganization or relief of
the Partnership as debtor under any applicable federal
or state law relating to bankruptcy, insolvency, or
other relief for debtors with respect to the
Partnership; or the seeking or consent to the
appointment of any trustee, receiver, conservator,
assignee, sequestrator, custodian, liquidator (or other
similar official) of the Partnership or of all or any
substantial part of the properties and assets of the
Partnership, or the making of any general assignment
for the benefit of creditors of the Partnership, or
admitting in writing the inability of the Partnership
to pay its debts generally as they become due or the
declaration of a moratorium on the Partnership debt or
the taking any action in furtherance of any such
action.
4.8.9. Amendment, modification or alteration of this
Agreement, except as permitted in Section 4.7.
4.8.10. Merger or consolidation with any other entity.
4.8.11. Approval of the agreements pursuant to which
the Partnership acquires the Project or
finances such acquisition.
4.8.12. Approval of Medical Staff Bylaws for the Project.
- 13 -
14
4.8.13. Credentialing of physicians on the medical staff of
the Project.
4.8.14. Approval of managed care contracts relating to the
Project with over 5,000 covered lives.
4.8.15. Approval of a Charity Care Policy for the Project.
4.8.16. Approval of the annual budget for the Project.
4.8.17. Approval of the administrator/CEO for the Project.
4.8.18. Amendment of the Management Agreement.
4.9. Liability of General Partner to Partnership or to Limited
Partners.
The General Partner, its employees, agents and assigns, shall not be
liable to the Limited Partners or to the Partnership for any loss suffered which
arises out of an act or omission of the General Partner, its employees, agents
and assigns, if, in good faith, it was determined by the General Partner that
such act or omission was in the best interests of the Partnership and such act
or omission did not constitute negligence or fraud. The General Partner, its
employees, agents and assigns, shall be indemnified by the Partnership against
any and all claims, demands and losses whatsoever if: (i) the indemnitee
conducted itself in good faith; and (ii) reasonably believed (a) in the case of
conduct in its official capacity with the Partnership, that its conduct was in
its best interests and (b) in all other cases, that its conduct was at least not
opposed to its best interests; and (iii) in the case of any criminal proceeding,
it had no reasonable cause to believe its conduct was unlawful.
- 14 -
15
4.10. Additional Items.
Mother Xxxxxxx will use its best efforts (i) to purchase the
West Oak Medical Plaza Building and the rural health clinic contained therein
(by assumption of debt or otherwise), provided such purchase is for fair market
value, is commercially reasonable and the usual and customary seller
representations and warranties are obtained; and (ii) subject to availability,
documentation of need and physician acceptance and approval, to recruit three
(3) physicians in each of the next three (3) years to R.M.S.A. or Trinity Clinic
to practice in the vicinity of the Project.
ARTICLE V
Admission and Withdrawal of Partners and
Transfers of Partnership Interests
5.1. Transfers of Partnership Interests.
The transfer of an interest in the Partnership shall mean the
transfer, alienation, sale, assignment, pledge or other disposition or
encumbrance of all or any part of an existing interest in the Partnership,
whether voluntarily or involuntarily, whether for or without consideration, and
includes a transfer by death or incompetency of a Partner, by operation of law,
by bankruptcy of a Partner, by foreclosure or judicial sale or otherwise. In the
event of the transfer of all or any part of the interest in the Partnership of a
Partner in accordance with this Agreement, this Agreement shall be amended as
necessary to reflect the transfer of the interest.
5.2. Permissible Transfers/Withdrawals.
No transfer or assignment of a Partnership interest shall be
made except on the following conditions:
1. Any Partner may, without the consent of any
other Partner, freely transfer its full Partnership interest
to any other Partner;
2. Any Partner may transfer all or a portion of its
Partnership interest to another person or entity in
accordance with the provisions of this Article V.
In the event that any Partner shall at any time attempt to transfer its interest
in the Partnership or withdraw from the Partnership in violation of the
provisions of this Agreement, such transfer or withdrawal shall be considered
void ab initio, and the Partnership shall, in addition to all other rights and
remedies at law and in equity, be entitled to a decree or order restraining and
enjoining such transfer or withdrawal, and the offending Partner shall not plead
in defense thereto that there would be an adequate remedy at law, it being
expressly acknowledged and agreed that damages at law will be an inadequate
remedy for a breach or threatened breach of the provisions concerning transfer
or withdrawal set forth in this Agreement.
- 15 -
16
5.3. Bankruptcy, Resignation, Dissolution, Liquidation or Removal
of the General Partner.
Upon the bankruptcy, resignation, dissolution, liquidation,
conversion or removal of a General Partner, the Partnership shall dissolve
pursuant to Section 7.1 of this Agreement unless a substitute General Partner is
elected by the unanimous vote of the Limited Partners within 60 days and such
Limited Partners vote to continue the business of the Partnership.
5.4. Dissolution of Limited Partner.
The bankruptcy, dissolution, liquidation, or termination of a
Limited Partner shall not cause the termination or dissolution of the
Partnership and the business of the Partnership shall continue. Upon any such
occurrence, the trustee or receiver of such Limited Partner shall have all the
rights of such Limited Partner for the purpose of settling or managing its
estate or property, subject to satisfying conditions precedent to the admission
of such assignee as a substitute Limited Partner. The transfer by such trustee
or receiver of any Partnership interest shall be subject to all of the
restrictions hereunder to which such transfer would have been subject if such
transfer had been made by such bankrupt, dissolved, liquidated or terminated
Limited Partner.
5.5. Provisions Intended to Ensure Compliance with Securities Laws.
5.5.1. Restrictions on Transfer. In addition to the provisions
of Section 5.2 hereof, Partnership interests are not transferable except
pursuant to (i) public offerings registered under the Securities Act, (ii) Rule
144 of the Securities and Exchange Commission (or any similar rule then in
force) if such rule is available, and (iii) subject to the conditions specified
in Section 5.5.2 hereof any other legally available means of transfer.
5.5.2. Procedure for Transfer. In connection with the transfer
of any Partnership interests (other than a transfer referred to in clauses (i)
or (ii) of Section 5.5.1 above), the holder thereof will deliver written notice
to the General Partner describing in reasonable detail the transfer or proposed
transfer, together with an opinion (reasonably satisfactory to the General
Partner) of counsel which (to the General Partner's reasonable satisfaction) is
knowledgeable in securities law matters to the effect that such transfer of
Partnership interests may be effected without registration of such Partnership
interests under the Securities Act.
5.6. No Transfer Which Violates Safe Harbors.
The General Partner may prevent, in its sole discretion, any
transfer that would cause the Partnership not to satisfy any safe harbor
provided in Internal Revenue Service Notice 88-75 or subsequent administrative
or legislative provision permitting the Partnership to avoid being a "publicly
traded partnership" under Section 7704 of the Code.
- 16 -
17
5.7. Additional General Partner; Transfer of General Partner's and
PPI's Interest.
No additional General Partner shall be admitted to the
Partnership without the prior written consent of all of the Limited Partners.
The General Partner shall not transfer its interest in the Partnership without
the consent of all of the Limited Partners. Notwithstanding the foregoing, the
General Partner may transfer its Partnership interest to a substitute General
Partner without the consent of the Limited Partners if (a) PPI is selling its
entire Partnership interest in the same transaction; and (ii) Mother Xxxxxxx has
the right to sell its Partnership interest in the same transaction for a price
equivalent to that received by PPI, adjusted pro rata based on their respective
Partnership interests. PPI shall not transfer its interest in the Partnership
without the consent of Mother Xxxxxxx, unless Mother Xxxxxxx has the right to
sell its entire Partnership interest in the same transaction for a price
equivalent to that received by PPI, adjusted pro rata based on their respective
partnership interests.
5.8. Transferees as Substitute Partners.
5.8.1. 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.
5.8.2. A Transferee of a General Partner's interest may become
a substitute General Partner only in accordance with Paragraph 5.7 hereof. In
the event of the transfer of a limited partnership interest in accordance with
this Agreement, the transferee may become a substitute Limited Partner only with
the written consent of the General Partner which may be withheld in its sole
discretion, and upon satisfaction of the following conditions:
a. The receipt by the General Partner of a written
instrument setting forth the intention of the transferor
that the transferee become a substituted Limited Partner;
b. The receipt by the General Partner of such information,
documents and fees as the General Partner may deem
necessary or desirable to effect the admission of the
transferee as a substitute Limited Partner, including,
without limitation, an opinion of counsel satisfactory to
the General Partner
- 17 -
18
that such substitution will not violate the provisions of
any applicable securities laws, rules or regulations.
5.9. Permitted Transfers by Mother Xxxxxxx.
Notwithstanding anything in this Agreement to the contrary,
Mother Xxxxxxx shall have the right to transfer its Partnership interest to
Trinity Mother Xxxxxxx Health System or to an Affiliate that is one hundred
percent (100%) owned though stock ownership (or governed through membership
rights in the case of a not-for-profit organization) by one or more members of
the Trinity Mother Xxxxxxx Health System group, otherwise Mother Xxxxxxx shall
not transfer any Partnership interest except in accordance with the following
procedures:
5.9.1. Right of First Refusal. For fifteen (15) days Mother
Xxxxxxx shall grant to PPI a right of first refusal
(the "First Refusal") to purchase Mother Frances's
Partnership interest at a price equal to a bona fide
written offer to Mother Xxxxxxx by an independent
third party.
5.9.2. Notice of Intent to Sell. The First Refusal shall be
granted by written notice of intention to make a bona
fide disposition by Mother Xxxxxxx stating the offer
to sell, the Partnership interest offered, purchase
price therefor which shall be the terms on which
Mother Xxxxxxx proposes to dispose of its Partnership
interest, and the name and address of the on to whom
Mother Xxxxxxx desires to transfer the Partnership
interests.
5.9.3. Notice of Exercise. The First Refusal may be exercised
only by actual delivery to Mother Xxxxxxx, prior to
the termination of the time period, of a notice of
exercise.
5.9.4. Closing. The closing of the purchase of the
Partnership interest pursuant to the right of first
refusal described in this Section 5.9 shall take place
on the date designated by PPI in the notice of
exercise described in clause 5.9.3 above, which date
shall not be more than sixty (60) days nor less than
five (5) days after the delivery of such notice. At
the closing, Mother Xxxxxxx shall deliver to PPI duly
executed instruments transferring Mother Frances's
Partnership interest to PPI against payment of the
purchase price by a delivery of a check or wire
transfer of funds to an account designated by Mother
Xxxxxxx. PPI will be entitled to receive customary
representations and warranties from Mother Xxxxxxx
regarding such sale.
5.9.5. Failure to Exercise Right of First Refusal. If PPI
does not exercise its First Refusal, Mother Xxxxxxx
may transfer its Partnership
- 18 -
19
interest to the purchaser at the purchase price and on
the terms described in the notice delivered pursuant
to clause 5.9.3 above.
5.10. Partners' Representations and Warranties.
5.10.1. Partners' Investment Representations. Each Partner
hereby represents that he or it is acquiring the
Partnership interests set forth in Schedule A for
its own account with the present intention of holding
such securities for investment purposes and that it
has no intention of selling such securities in a
public distribution in violation of federal or state
securities laws; provided that nothing contained
herein will prevent the Partners and the subsequent
holders of such securities from transferring such
securities in compliance with the provisions of
Article V hereof.
5.10.2. Other Representations and Warranties of the Partners.
Each Partner hereby severally represents and warrants
to and covenants and agrees with the Partnership that:
a. Such Partner has had an opportunity to ask questions
and receive answers concerning the terms and
conditions of the securities purchased hereunder and
has had full access to such other information
concerning the Partnership as such Partner may have
requested and that in making its decision to invest
in the securities being purchased hereunder he or it
is not in any way relying on the fact that any other
party has decided to be a Partner hereunder or to
invest in the securities;
b. Such Partner is an "accredited investor" as defined
in Rule 501(a) under the Securities Act;
c. Such Partner is able to bear the economic risk of its
investment in the Partnership purchased hereunder for
an indefinite period of time, including the risk of a
complete loss of such Partner's investment in the
Partnership.
- 19 -
20
ARTICLE VI
Special Put/call Rights in Favor of Mother Xxxxxxx
6.1. Call Right. So long as this Agreement shall be in effect
Mother Xxxxxxx shall have the right to acquire additional Partnership interests
from the Partnership sufficient for Mother Xxxxxxx to own ten percent (10%) of
the Partnership interests of the Partnership on the following terms:
6.1.1. Price. The price Mother Xxxxxxx shall pay for
such additional Partnership interests shall be five percent
(5%) of the sum of (i) the net working capital of the
Partnership as shown on the most recently available balance of
the Partnership prior to the date such Partnership interest is
issued plus (ii) the greater of (x) $21,900,000 or (y) the
product obtained by multiplying 5 times Trailing EBITDA, less
(iii) the debt of the Partnership as shown on such balance
sheet.
6.1.2. Mechanics of Exercise. If Mother Xxxxxxx
desires to exercise its Call Right, it shall deliver notice
to the General Partner during the first or seventh months
after the annual audited financial statements of the
Partnership are delivered to Mother Xxxxxxx with respect to
the prior year and simultaneously tender the price for the
additional Partnership interest in cash.
6.1.3. Termination of Call Rights. If Mother Xxxxxxx
exercises its right to put its Partnership interests to PPI
or the Partnership pursuant to Section 6.2, its rights under
this Section 6.1 shall forthwith cease.
6.2. Put Right. Commencing July 1, 1998, Mother Xxxxxxx shall
have the right to put its original 5% Partnership interest in the Partnership
either to PPI or the Partnership (at the option of PPI) on the following terms:
6.2.1. Price. The price PPI or the Partnership
shall pay to Mother Xxxxxxx for such Partnership interest
shall be five percent (5%) of the sum of (i) the net working
capital of the Partnership as shown on the most recently
available balance of the Partnership prior to the date such
Partnership interest is issued plus (ii) the greater of (x)
$21,900,000 or (y) the product obtained by multiplying 5
times Trailing EBITDA, less (iii) the debt of the Partnership
as shown on such balance sheet.
6.2.2. Mechanics of Exercise. If Mother Xxxxxxx
desires to exercise its Put Right, it shall deliver notice
to the General Partner during the ninety (90) days after the
annual audited financial statements of the Partnership are
delivered to Mother Xxxxxxx with respect to the prior year,
and the Partnership or PPI shall pay the price for such
additional Partnership interest in cash within thirty (30)
days.
6.2.3. Termination of Put Rights. If Mother Xxxxxxx
exercises its right to purchase additional Partnership
interest pursuant to Section 6.1, its rights under this
Section 6.2 shall forthwith cease
- 20 -
21
6.3. Adjustment of Percentage Interest. In the event of the
exercise of the Call Right or Put Right under this Article, the Percentage
Interest shall be adjusted as of the date of the transfer pursuant to this
Article.
ARTICLE VII
Dissolution and Termination
7.1. Events Causing Dissolution and Termination.
The Partnership shall be dissolved upon (1) the expiration of
the term of the Partnership stated in this Agreement; (2) the sale of all of the
assets of the Partnership and the distribution of the net proceeds therefrom;
(3) at any time with the written consent of the General Partner and of all of
the Limited Partners; (4) the resignation, dissolution and liquidation or
conversion of the General Partner if no substitute General Partner is elected
within sixty (60) days as provided in Section 5.3; and (5) 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.
7.2. 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.
7.3. Distributions in Accordance with Capital Accounts.
Notwithstanding any other provision of this Agreement, upon
liquidation of the Partnership (or any Partner's interest in the Partnership)
liquidating 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).
In the event that upon liquidation of the Partnership, the General Partner has a
deficit balance in its capital account, the General Partner shall contribute to
the capital of the Partnership an amount of money equal to the lesser of (a)
such deficit balance, or (b) the excess of 1.01 percent of the total capital
contributions by the Limited Partners to the Partnership over the total amount
of capital contributions made to the Partnership by the General Partner. Any
amounts contributed by the General Partner shall be added to the amounts
described above and shall be distributed in the manner provided in this Section
6.4.
- 21 -
22
ARTICLE VIII
Fiscal Matters
8.1. Books and Records.
The General Partner shall maintain full and accurate books of
the Partnership at its principal place of business or at such other place as may
be designated from time to time by the General Partner, showing all receipts and
expenditures, assets and liabilities, profits and losses, and all other records
necessary for recording the Partnership's business and affairs. Each Partner and
its duly authorized representatives shall at all time have access to and may
inspect and copy any of such books and records.
8.2. Fiscal Year.
The fiscal year of the Partnership shall end on December 31
of each year.
8.3. Reports to Partners.
The General Partner shall cause to be prepared at the
Partnership's expense, and shall deliver to each Partner the following reports:
8.3.1. Within seventy-five (75) days after the end of each
Fiscal Year, all information necessary for the
preparation of the Limited Partners' federal income
tax returns;
8.3.2. Any Partner may obtain, at such Partner's expense,
such other reports on the Partnership's operations and
conditions as such Partner may reasonably request,
which reports shall be mailed by the General Partner
within one (1) month after notice of such Partner's
request.
8.4. Bank Accounts and Temporary Investments.
All funds of the Partnership shall be deposited in its name in
such checking, savings or other accounts as shall be designated by the General
Partner from time to time separate and apart from, and not commingled with, the
accounts of any other persons, including the accounts of the General Partner or
its Affiliates. Withdrawals therefrom shall be made upon such signature or
signatures as the General Partner may designate.
8.5. Accounting Decisions.
All decisions as to accounting matters shall be made by the
General Partner in accordance with generally accepted accounting principles
consistently applied, unless another method of accounting not in accordance with
generally accepted accounting principles is selected for tax reporting purposes.
- 22 -
23
ARTICLE IX
Expense of the Partnership
9.1. Reimbursement of Expenses Incurred by the General Partner.
All expenses of the Partnership's business should be billed
directly to and paid by the Partnership. The General Partner shall be reimbursed
by the Partnership for all direct expenses incurred by it to unrelated third
parties in connection with the Partnership's business, including legal,
accounting, and financial services.
ARTICLE X
General Provisions
10.1. Notices.
All notices, consents, waivers, directions, requests, votes or
other instruments or communications provided for under this Agreement shall be
in writing, signed by the party giving the same, and shall be deemed properly
given when actually received, if delivered in person, or when mailed, if sent by
registered or certified United States mail, postage prepaid, addressed: (a) in
the case of the Partnership, to the Partnership at the principal place of
business of the Partnership; or (b) in the case of any Partner individually, to
such Partner at his address set forth in Schedule A hereto. Each Partner may, by
written notice to all other Partners, specify any other address for the receipt
of such instruments or communications.
10.2. Power of Attorney.
Subject to the requirements of this Agreement, each Partner,
by the execution of this Agreement, hereby irrevocably constitutes and appoints
the General Partner, its successor and assigns, as its true and lawful attorney
and agent, with full power and authority in his name, place and xxxxx to swear
to, execute, acknowledge, deliver, file and record in any appropriate public
office any certificate or other instrument which may be necessary, desirable or
appropriate to qualify or to continue the Partnership as a limited partnership
in the State of Texas; any amendment to this Agreement or to any certificate or
other instrument which may be 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 or any additional
capital contributions or withdrawal of capital contributions by a Partner; any
conveyance of Partnership property; any mortgage or other encumbrance of
Partnership property and related documents; any note or other instrument
evidencing a Partnership obligation and related documents; and any certificates
or instrument which may be appropriate, necessary or desirable to reflect the
dissolution and termination of the Partnership. The power of attorney granted
hereby shall not be affected by disability of the principal, shall be deemed to
be coupled with an interest and shall
- 23 -
24
survive the death or incompetency of any Partner and the transfer by any Partner
of its interest as Partner in the Partnership.
10.3. Meetings.
Meetings of all Partners may be called by the General Partner
and/or any Limited Partner. Upon receipt of a written request stating the
purpose(s) of the meeting, the General Partner shall provide all Partners within
ten (10) days after receipt of said request, written notice of the meeting, and
the purpose thereof, to be held on a date not less than fifteen (15) nor more
than sixty (60) days after receipt of said request. Any such meetings shall be
held at the principal place of business of the Partnership.
10.4. Integration.
This Agreement embodies the entire agreement and understanding
among the Partners and supersedes all prior agreements and understandings, if
any, among and between the Partners relating to the subject matter hereof.
10.5. 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 Texas.
10.6. 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, except that no counterpart shall be authentic
unless signed by the General Partner.
10.7. Severability.
In case any one or more of the provisions contained in this
Agreement or any application thereof shall be invalid, illegal or unenforceable
in any respect, the validity, legality and enforceability of the remaining
provisions contained herein and any other application thereof shall not in any
way be affected or impaired thereby.
10.8. 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.
- 24 -
25
10.9. 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 it 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.
- 25 -
26
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:
PRINCIPAL HOSPITAL COMPANY,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Title: President and CEO
----------------------------
LIMITED PARTNERS:
PALESTINE-PRINCIPAL, INC.
a Tennessee corporation
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Title: President and CEO
----------------------------
MOTHER XXXXXXX HOSPITAL REGIONAL
HEALTH CARE CENTER,
a Texas not-for-profit corporation
By: /s/ Signature Illegible
--------------------------------
Title: President
----------------------------
- 26 -
27
Schedule A
PALESTINE PRINCIPAL HEALTHCARE LIMITED PARTNERSHIP
NAMES, ADDRESSES, CAPITAL CONTRIBUTIONS
OF PARTNERS AND NUMBER OF UNITS
The names and addresses of the Partners are set forth below.
The amounts contributed or to be contributed by each Partner as its capital
contribution to the Partnership and the number of Units owned by each Limited
Partner are also set forth below opposite its name:
----------------------------------------------------------------------------------
NAME AND ADDRESS CAPITAL CONTRIBUTION PERCENTAGE INTEREST
----------------------------------------------------------------------------------
GENERAL PARTNER:
Principal Hospital Company $ 105,000 1%
0000 Xxxxxxx Xxxxxxx Xxxxx
Xxxxx X-00
Xxxxxxxxx, XX 00000
Attn: President
LIMITED PARTNERS:
Palestine-Principal, Inc. $9,870,000 94%
Suite A-12
Brentwood, TN 37027
Attn: President
Mother Xxxxxxx Hospital
Regional Health Care Center $ 525,000 5%
000 Xxxx Xxxxxx
Xxxxx, XX 00000
Attn: President
- 27 -
