Exhibit 3.42
LIMITED PARTNERSHIP AGREEMENT
OF
EVEREST HEALTHCARE TEXAS, L.P.
------------------------------
THIS LIMITED PARTNERSHIP AGREEMENT is entered into as of this 31st day of
October, 1999, by and among the party listed as a general partner on Schedule 1
----------
attached hereto and made a part hereof (the "General Partner") and any party
listed as a limited partner on Schedule 1 attached hereto and made a part hereof
----------
(individually or collectively, the "Limited Partner").
ARTICLE I
---------
FORMATION OF LIMITED PARTNERSHIP
--------------------------------
The parties hereby enter into a limited partnership (the "Partnership")
under the provisions of the Delaware Revised Uniform Limited Partnership Act
(the "Act") and, except as otherwise expressly provided herein, the rights and
liabilities of the Partners shall be as provided in the Act.
ARTICLE II
----------
NAME
----
The business of the Partnership shall be conducted under the name Everest
Healthcare Texas, L.P., or such other name as the General Partner may hereafter
designate. A Certificate of Limited Partnership and other required documents
shall be filed and recorded in the appropriate offices and places as required by
law.
ARTICLE III
-----------
DEFINITIONS
-----------
3.1 "Act" means the Delaware Revised Uniform Limited Partnership Act.
3.2 "Agreement" means this Limited Partnership Agreement, as amended,
modified or supplemented from time to time.
3.3 "Capital Account" means an account, maintained for each Unit Holder,
which will be credited with the amount of such Unit Holder's original capital
contribution plus any additional capital contributions made by such Unit Holder
and such Unit Holder's allocable share of the Net Profits, less any
distributions made to such Unit Holder and such Unit Holder's allocable share of
the Net Losses.
3.4 "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
3.5 "Consent of the Partners" means the consent of the (i) the General
Partner and (ii) the Limited Partner or Limited Partners owning at least 51% of
the Limited Partner Units.
3.6 "Fair Value" means the fair market value of the Partnership as an
entity and/or individual Partnership Units as determined by the written
appraisal of a person or firm employed by the Partnership who is qualified to
value the Partnership and the ownership interests of its Unit Holders. For
purposes hereof, the fair market value of an individual's Partnership Units
shall be appraised based upon the price at which such Units would change hands
between a willing buyer and a willing seller, neither being under any compulsion
to buy or sell and both having reasonable knowledge of the relevant facts. The
appraiser selected by the Partnership must be qualified to perform business
appraisals of partnerships and ownership interests therein by reason of his or
her experience and qualifications to do so.
3.7 "General Partner" refers to a holder of a General Partner Unit as
designated as such on Schedule 1 hereto, but in the event that such party is at
----------
any time no longer acting as a General Partner, the term shall mean the party or
parties then acting in such capacity.
3.8 "General Partner Unit" means a Unit owned by the General Partner as a
general partner.
3.9 "Limited Partner" refers to each holder of a Limited Partner Unit as
designated as such on Schedule 1 hereto and/or any party who agrees in any
----------
manner to be bound by this Agreement as a limited partner and is accepted by the
General Partner upon proper notation on the books and records being maintained
on behalf of the Partnership.
3.10 "Limited Partner Unit" means a Unit owned by a Limited Partner as a
limited partner.
3.11 "Net Losses" means the excess of expenses and losses over income and
gain of the Partnership for Federal income tax purposes, after taking into
account all income, gain, expenses and losses incurred in connection with the
Partnership's activities, including, but not limited to, any Federal or state
tax imposed on the Partnership as an entity.
3.12 "Net Profits" means the excess of income and gain over expenses and
losses of the Partnership for Federal income tax purposes, after taking into
account all income, gain, expenses and losses incurred in connection with the
Partnership's activities, including, but not limited to, any Federal or state
tax imposed on the Partnership as an entity.
3.13 "Participating Percentage" means the percentage of interest held by a
Unit Holder as listed on Schedule 1, as amended from time to time, attached
----------
hereto and made a part hereof.
3.14 "Partner" means the General Partner and the Limited Partner, where no
distinction is required by the context in which the term is used herein.
2
3.15 "Partnership" means the Limited Partnership formed pursuant to this
Agreement by the parties hereto, as such partnership may from time to time be
constituted.
3.16 "Permitted Transferee" means any direct or indirect subsidiary of
Everest healthcare Services Corporation, a Delaware corporation.
3.17 "Person" means any individual, partnership, corporation, trust or
other entity.
3.18 "Regulations" means the income tax regulations, including any
temporary regulations, from time to time promulgated under the Code.
3.19 "Unit" means an interest in the Partnership. The Units held by a Unit
Holder shall be as listed on Schedule 1, as amended from time to time.
3.20 "Unit Holder" means any person who owns a Unit, regardless of whether
such person has been admitted to the Partnership as a General Partner or as a
Limited Partner.
ARTICLE IV
----------
PURPOSE
-------
The purpose of the Partnership shall be to engage in any lawful act or
activity for which limited partnerships may be organized under the laws of the
State of Delaware. In connection therewith, the Partnership shall have the
power and authority to carry out any and all activities not prohibited under the
Act.
ARTICLE V
---------
NAMES OF THE UNIT HOLDERS
-------------------------
The names of the Unit Holders are set forth on Schedule 1.
----------
ARTICLE VI
----------
TERM
----
The Partnership shall continue until December 31, 2048, unless sooner
terminated as set forth herein.
3
ARTICLE VII
-----------
PRINCIPAL PLACE OF BUSINESS
---------------------------
The principal place of business of the Partnership shall be ▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ or such other place or places as the General
Partner may designate. The registered office of the Partnership in the State of
Delaware shall be Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in the county of New Castle, and the registered agent for
service of process at such address shall be The Corporation Trust Company.
ARTICLE VII
-----------
CAPITAL CONTRIBUTIONS AND ADMISSIONS
------------------------------------
8.1 Initial Capital Contributions. The initial General Partner and
-----------------------------
Limited Partner or Limited Partners shall make capital contributions and receive
Units as set forth on Schedule 1.
----------
8.2 Additional Contributions. With the consent of the General Partner,
------------------------
which may be withheld in its sole discretion, the Unit Holders may make
additional capital contributions to the Partnership.
8.3 Withdrawals of Capital. No Unit Holder, other than the General
----------------------
Partner, shall be entitled to withdraw or demand the return of such Unit
Holder's capital contribution or Net Profits except upon dissolution of the
Partnership pursuant to Article XVI.
-----------
8.4 Admission of New Partners. One or more additional Limited Partners
-------------------------
may only be admitted to the Partnership with the Consent of the Partners.
8.5 No Interest on Capital Accounts. No Unit Holder shall be entitled to
-------------------------------
receive any interest on its Capital Account.
ARTICLE IX
----------
ALLOCATION OF NET PROFITS AND NET LOSSES
----------------------------------------
Net Profits and Net Losses shall be allocated to the Unit Holders in
accordance with their Participating Percentages.
4
ARTICLE X
---------
DISTRIBUTIONS
-------------
Except as provided in the next sentence, distributions shall be made at
such times and in such amounts as determined by the General Partner in its sole
and absolute discretion. Distributions, if any, shall be made to the Unit
Holders based on their Participating Percentages. No Unit Holder shall have the
right to withdraw its Capital Account or demand or receive the return of its
Capital Account or any part thereof except as otherwise provided in this
Agreement.
ARTICLE XI
----------
BOOKS OF ACCOUNT AND RECORDS
----------------------------
Proper and complete records and books of account shall be kept by the
General Partner, including but not limited to those pertaining to each Unit
Holder's Capital Account, in which shall be entered fully and accurately all
transactions and other matters relative to the Partnership's business as are
usually entered into records and books of account maintained by persons engaged
in business of a like character. The Partnership books and records shall be
kept on the accrual basis, unless a different accounting method is elected by
the General Partner. The books and records shall at all times be maintained at
the principal office of the Partnership and shall be open to reasonable
inspection and examination by the Partners or their duly authorized
representatives during reasonable business hours.
ARTICLE XII
-----------
FISCAL YEAR
-----------
The fiscal year of the Partnership shall end on the thirtieth day of
September in each year, or such other date as the General Partner may determine
in its sole and absolute discretion.
ARTICLE XII
-----------
STATUS OF LIMITED PARTNER
-------------------------
No Limited Partner shall participate in the management or control of the
Partnership's business, transact any business for the Partnership or have the
power to act for or bind the Partnership, all such powers being vested solely
and exclusively in the General Partner. No Limited Partner shall have interest
in the properties or assets of the Partnership or any equity therein, or in any
proceeds of any operations or sales thereof (which operations and sales shall
not be restricted in any respect), by virtue of acquiring or owning interests in
the Partnership. Except
5
as may be otherwise provided by the laws of the State of Delaware, no Limited
Partner will be liable for the obligations of the Partnership.
ARTICLE XIV
-----------
POWERS, RIGHTS AND DUTIES OF THE GENERAL PARTNER
------------------------------------------------
14.1 General Authority. The General Partner shall have exclusive authority
-----------------
to manage the operations and affairs of the Partnership, and to make all
decisions regarding the business of the Partnership. Pursuant to the foregoing,
it is understood and agreed that the General Partner shall have all of the
rights and powers of a general partner as provided in the Act and as otherwise
provided by law and any action taken by the General Partner shall constitute the
act of and serve to bind the Partnership. The General Partner is hereby granted
the right, power and authority to do on behalf of the Partnership all things
which, in its sole judgment, are necessary, proper or desirable to carry out the
aforementioned duties and responsibilities. Without limiting this authority, the
General Partner is granted the authority to do the following:
(a) To make such expenditures of Partnership funds or to borrow as
the General Partner deems appropriate for the conduct of the Partnership's
business.
(b) To collect obligations payable to the Partnership in connection
with its property or business and take any lawful means for the recovery thereof
by legal process or otherwise, and to execute and deliver a satisfaction and
release therefor, together with the right to compromise any claim or demand.
(c) To lease, sell, exchange, pledge, encumber or grant an option for
the sale of all or any portion of the real and personal property of the
Partnership, at such rental, price or amount for each, and upon such other
terms, as the General Partner deems proper.
(d) To carry out and perform all of the Partnership's obligations
under any agreement entered into by the Partnership.
(e) To select and retain accountants, attorneys and other advisors
(including investment advisors) to provide services to the Partnership.
(f) To execute, acknowledge and deliver any and all instruments to
effectuate the foregoing.
(g) To make all elections required or permitted to be made by the
Partnership under the Code.
(h) To take any other action deemed desirable by the General Partner
to carry out the purposes of the Partnership.
6
14.2 Fiduciary Duties. The General Partner has a fiduciary duty to the
----------------
Limited Partner or Limited Partners to manage and operate the Partnership in the
best interests of the Partnership and its Partners. In exercising the powers
granted herein, the General Partner is bound to act in accordance with this
fiduciary duty consistent with the purpose of this Partnership.
14.3 Partnership Funds. Cash and equivalents shall be deposited in such
-----------------
bank or brokerage account or accounts, or invested in such interest-bearing or
non-interest-bearing investments, including but not limited to domestic and
international stocks and stock mutual funds, tax and tax-exempt bonds or other
debt securities (domestic or international), as shall be designated by the
General Partner in its sole and absolute discretion. All withdrawals from any
such accounts shall be made by the authorized officers or agents of the General
Partner. Partnership funds shall be separately identifiable from those of any
other person or entity.
14.4 Transfers of Partnership Property by the General Partner. Except as
--------------------------------------------------------
limited by this Agreement, the General Partner will have the authority at any
time and from time to time to sell, exchange, lease and/or transfer legal and
equitable title to the Partnership property upon such terms and conditions, and
for such consideration, as the General Partner considers to be reasonable. The
execution of any document of conveyance or lease by the General Partner will be
sufficient to transfer complete legal and equitable title to the interest
conveyed without the joinder, ratification, or consent of any Limited Partner.
No purchaser, tenant, transferee or obligor will have any obligation whatsoever
to see to the application of payments made to the General Partner.
14.5 Liability of General Partner. The General Partner will have personal
----------------------------
liability for the obligations of the Partnership except as may be specifically
limited by the laws of the State of Delaware or any other jurisdiction in which
the Partnership has qualified to do business.
14.6 Tax Matters Partner. The General Partner shall be the "tax matters
-------------------
partner" of the Partnership as such term is defined in Section 6231(a)(7) of the
Code, and it shall serve as such at the expense of the Partnership with all
powers granted to a tax matters partner under the Code.
14.7 Activity of General Partner. The General Partner shall not be
---------------------------
required to manage the Partnership as its sole and exclusive function and may
have other business interests and may engage in other activities in addition to
those relating to the Partnership. Neither the Partnership nor any Partner
shall have any right by virtue of this Agreement or the partnership relationship
created hereby in or to such other ventures or activities or to the income or
proceeds derived therefrom, and the pursuit of such ventures and activities,
even if competitive with the business of the Partnership, shall not be deemed
wrongful or improper.
14.8 Indemnification. The Partnership shall indemnify and hold harmless
---------------
the General Partner and its officers, employees and agents from and against any
loss, expense, damage or injury suffered or sustained by them by reason of any
acts, omissions or alleged acts or omissions arising out of their activities on
behalf of the Partnership, including, but not limited to, any judgment, award,
settlement, attorneys' fees and other costs or expenses incurred in connection
7
with the defense of any actual or threatened action, proceeding or claim. The
Partnership may advance sums for payment of amounts described in this Section
-------
14.8, provided that the recipient of any such advances shall be obligated to
----
repay the amounts advanced if the recipient is finally adjudged ineligible to be
indemnified hereunder.
14.9 Compensation; Reimbursement of Expenses. Unless approved by the
---------------------------------------
Limited Partner or Limited Partners owning at least 51% of the Limited Partner
Units, the General Partner shall not be entitled to any compensation for
services rendered to the Partnership. However, upon substantiation of the
amount and purpose thereof, the General Partner shall be entitled to
reimbursement for expenses reasonably incurred in connection with the activities
of the Partnership.
14.10 Removal of a General Partner. The General Partner may be removed
----------------------------
from office only with the consent of the Limited Partner or Limited Partners
owning at least 51% of the Limited Partner Units; provided, however, for
purposes of the foregoing, the Limited Partner Units owned by the General
Partner sought to be removed shall be treated as if such Units do not exist and
shall therefore not be counted in determining whether the requisite consent to
remove the General Partner from office has been achieved.
ARTICLE XV
----------
TRANSFER AND WITHDRAWALS
------------------------
15.1 Transfer of Limited Partner's Interest. Any Limited Partner may
--------------------------------------
transfer or assign its Limited Partner Units to a Permitted Transferee without
the consent of the General Partner; provided, however, all instruments of
transfer shall be in form and substance satisfactory to the General Partner, and
any such Permitted Transferee shall provide the documentation required in
Sections 15.2(a) and (b) below; provided, further, however, no Permitted
---------------- ---
Transferee shall become a substituted Limited Partner unless all of the
provisions of Section 15.2 below have been satisfied.
------------
15.2 Substituted Limited Partner. Any assignee or transferee shall not
---------------------------
automatically become a substituted Limited Partner but shall merely be entitled
to receive the share of Net Profits and Net Losses of the Partnership, the
return of capital contributions and any other payments to which the assigning or
transferring Limited Partner would have been entitled. The assignee or
transferee of a Limited Partner's interest, or any portion thereof, may be
admitted to the Partnership as a Limited Partner in the place and stead of, or
together with, as the case may be, the Limited Partner who has assigned or
transferred its interest upon satisfaction of all of the following conditions:
(a) A duly executed written instrument of assignment must be filed
with the Partnership setting forth the intention of the assignor that the
assignee become a Limited Partner in its place, or together with it;
8
(b) The assignor and the assignee must execute and deliver such
other instruments as the General Partner may deem necessary or desirable to
effect such admission, including the written acceptance and adoption by the
assignee of the provisions of this Agreement; and
(c) The written consent of the General Partner to such substitution
shall be obtained, the granting or denial of which shall be within the sole
discretion of the General Partner (provided, however, that such written consent
will not be required if the transferee is a Partner immediately prior to and at
the time of the transfer).
After all of the foregoing conditions have been fulfilled and the assignee
has been admitted to the Partnership as a Limited Partner, the General Partner
shall amend Schedule 1 to this Agreement to reflect the assignee's admission to
----------
the Partnership as a Limited Partner.
15.3 Involuntary Transfer by Limited Partner. In the event that a Limited
---------------------------------------
Partner's interest is taken or disturbed by levy, foreclosure, charging order,
execution or other similar proceeding, then the rights of such Limited Partner
to share in the Net Profits and Net Losses of the Partnership, to receive
distributions of Partnership funds and to assign an interest pursuant to this
Article shall, on the happening of such an event, devolve on his assignee, if
any, and the Partnership shall continue as a Limited Partnership. The assignee
of the Limited Partner shall become a substituted Limited Partner only upon
compliance with Section 15.2 hereof. Any transferee who has not been admitted
------------
to the Partnership shall have only the rights of an assignee.
15.4 Dissolution of a Limited Partner. Subject to the provisions of
--------------------------------
Article XVI, in the event of the dissolution of a Limited Partner, or any other
-----------
event that causes a transfer of such Limited Partner's interest by operation of
law to anyone not then a Partner, then the rights of such Limited Partner to
share in the Net Profits and Net Losses of the Partnership, to receive
distributions of Partnership funds and to assign an interest pursuant to this
Article shall, on the happening of such an event, devolve on his assignee, if
any, and the Partnership shall continue as a Limited Partnership. The assignee
of the Limited Partner shall become a substituted Limited Partner only upon
compliance with Section 15.2 hereof. Any transferee who has not been admitted
------------
to the Partnership shall have only the rights of an assignee.
15.5 Involuntary Transfer by General Partner. In the event a General
---------------------------------------
Partner's interest is taken or disturbed by levy, foreclosure, charging order,
execution, or other similar proceeding, the Partnership shall not dissolve. The
assignee of the General Partner's interest shall in no event have the right to
interfere in the management or the administration of the Partnership business or
affairs or to act as a General Partner. The assignee shall only have the right
to receive distributions, and Net Profits and Net Losses attributable to the
General Partner's interest in the Partnership. Any General Partner whose
interest has been taken or disturbed under any of the circumstances described
above shall have the option of exchanging his General Partner Units in the
Partnership for Limited Partner Units entitled to the same Capital Account,
Participating Percentage, Net Profits and Net Losses. In the event of the
bankruptcy of the General Partner, whether by voluntary or involuntary action,
such General Partner's interest shall be automatically terminated and the
General Partner shall be deemed to have exchanged his General Partner Units
9
for Limited Partner Units entitled to the same Capital Account, Participating
Percentage, Net Profits and Net Losses.
Any entity to which this Agreement is assigned pursuant to the provisions
of the Bankruptcy Code, 11 U.S.C. (S)(S)101 et seq., shall be deemed without
further act to have assumed all of the obligations arising under this Agreement
on or after the date of such assignment. Upon demand, any such assignee shall
execute and deliver to each other party to this Agreement an instrument
confirming such assumption. Failure to deliver such instrument shall be deemed
a default hereunder by the assignee.
15.6 Withdrawal of the General Partner. The General Partner agrees not to
---------------------------------
withdraw as a General Partner without giving 3 days' prior written notice to
every Limited Partner. On the occurrence of an Event of Withdrawal (as defined
below), the Limited Partner or Limited Partners owning at least 51% of the
Limited Partner Units, may admit a new General Partner within 90 days of such
Event of Withdrawal. If the Partnership business is continued, the General
Partner Units held by the withdrawn General Partner shall be sold to the
continuing or new General Partners at Fair Value payable within 90 days of the
notice of withdrawal. A withdrawn General Partner that owns Limited Partner
Units continues as a Limited Partner with the rights and obligations provided
Limited Partners under this Agreement. The following shall constitute Events of
Withdrawal:
(a) Subject to the provisions of Article XVI, the bankruptcy or
-----------
dissolution of the General Partner.
(b) The voluntary withdrawal of the General Partner, including,
without limitation, an exchange of General Partner Units for Limited Partner
Units, pursuant to Section 15.5.
------------
(c) The removal of a General Partner pursuant to Section 14.10.
-------------
15.7 Compliance with Securities Laws. The Partners hereby agree that the
-------------------------------
Partnership interests shall be nontransferable and nonassignable, except in
compliance with the registration provisions of the Securities Act of 1933 or an
exemption or exemptions therefrom, in compliance with (or exempt from)
applicable state securities laws and rules and regulations promulgated
thereunder, and the terms of this Agreement. Any attempted or purported
transfer or assignment in violation of the foregoing shall be void and of no
effect.
ARTICLE XVI
-----------
DISSOLUTION OF THE PARTNERSHIP
------------------------------
Except as otherwise provided herein, the happening of any of the following
events shall work an immediate dissolution of the Partnership:
10
(a) An Event of Withdrawal with respect to the General Partner, unless a
substitute General Partner is, within 30 days, selected with the consent of the
Limited Partner or Limited Partners owning at least 51% of the Limited Partner
Units, and the new General Partner elects to continue the business of the
Partnership;
(b) The Consent of the Partners; and
(c) The expiration of the term of the Partnership as provided in Article
-------
VI of this Agreement.
--
ARTICLE XVI
-----------
ADDITIONAL PROVISIONS CONCERNING
DISSOLUTION OF THE PARTNERSHIP
------------------------------
17.1 Liquidation. In the event of the dissolution of the Partnership for
-----------
any reason, the General Partner, or in the event that the General Partner has
dissolved or withdrawn from the Partnership, a liquidator or a liquidating
committee selected by the Limited Partner or Limited Partners in accordance with
the Act, shall wind up the affairs of the Partnership. The Unit Holders shall
continue to share Net Profits and Net Losses during the period of liquidation in
the same proportion as before the dissolution. The General Partner (or such
liquidator or liquidating committee) shall have full right and unlimited
discretion to determine the time, manner and terms of any sale or sales of
Partnership property pursuant to such liquidation.
17.2 Distribution. Following the payment of all debts and liabilities of
------------
the Partnership and all expenses of liquidation, and subject to the right of the
General Partner (or such liquidator or liquidating committee) to set up such
cash reserves as it may deem reasonably necessary for any contingent or
unforeseen liabilities or obligations of the Partnership, the proceeds of the
liquidation and any other funds of the Partnership shall be distributed in
accordance with Article X hereof. The General Partner (or such liquidator or
---------
liquidating committee) may make distributions of property in kind, either as
tenants-in-common or on an asset-by-asset determination, at its sole discretion.
17.3 No Return of Capital. Each Unit Holder shall look solely to the
--------------------
assets of the Partnership for all distributions with respect to the Partnership
and for the return of his capital contribution and shall have no recourse
therefor against any other Unit Holder. The Unit Holders shall not have any
right to demand or receive property other than cash upon dissolution and
termination of the Partnership or to demand the return of their capital
contributions to the Partnership prior to dissolution and termination of the
Partnership.
17.4 Authority. Upon completion of the liquidation of the Partnership and
---------
the distribution of all Partnership funds the Partnership shall terminate, and
the General Partner shall have the authority to execute and record a Certificate
of Cancellation of the Partnership as well
11
as any and all other documents required to effect the dissolution and
termination of the Partnership.
ARTICLE XVI
-----------
AMENDMENT OF LIMITED PARTNERSHIP AGREEMENT
------------------------------------------
18.1 Method of Amendment.
-------------------
(a) This Agreement may be amended by the Consent of Partners.
(b) Notwithstanding the foregoing, this Agreement may be amended by
the General Partner without the approval of any Limited Partner whenever:
(i) there is a need to provide any provision as may be
required by applicable law to be included in this Agreement;
(ii) there is a need to correct a false or erroneous
statement in this Agreement or to clarify a provision of this Agreement without
changing the substance thereof; and
(iii) it is necessary or appropriate, in the opinion of
counsel selected by the General Partner, to satisfy the requirements of the
Code, Regulations or administrative guidelines or interpretations relating
thereto, to maintain the status of the Partnership, or to comply with the
federal tax provisions so as to give effect to any benefits intended hereunder
as determined by the General Partner.
18.2 Implementation. In the event this Agreement is amended, the General
--------------
Partner shall amend the Certificate of Limited Partnership to reflect such
change if it deems such amendment to be necessary or appropriate.
ARTICLE XIX
-----------
MISCELLANEOUS
-------------
19.1 Entire Agreement. This Agreement constitutes the entire agreement
----------------
among the parties. It supersedes any prior agreement or understandings among
them, and it may not be modified or amended in any manner other than as set
forth herein.
19.2 Governing Law. This Agreement and the rights of the parties hereunder
-------------
shall be governed by and interpreted in accordance with the laws of the State of
Delaware, without application of its conflicts of laws provisions.
12
19.3 Assigns. Except as herein otherwise specifically provided, this
-------
Agreement shall be binding upon and inure to the benefit of the parties and
their legal representatives, heirs, administrators, executors, successors and
assigns.
19.4 Singular and Plural. Wherever from the context it appears
-------------------
appropriate, each term stated in either the singular or the plural shall include
the singular and the plural, and pronouns stated in either the masculine, the
feminine or the neuter gender shall include the masculine, feminine and neuter.
19.5 Captions. Captions contained in this Agreement are inserted only as a
--------
matter of convenience and in no way define, limit or extend the scope or intent
of this Agreement or any provision hereof.
19.6 Severance. If any provision of this Agreement, or the application of
---------
such provision to any person or circumstance, shall be held invalid, the
remainder of this Agreement, or the application of such provision to persons or
circumstances other than those to which it is held invalid, shall not be
affected thereby.
19.7 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument.
19.8 Notice. All notices and demands required or permitted under this
------
Agreement shall be deemed properly given and effective upon receipt (or, if
refused, upon the date of such refusal) if in writing and sent by U.S. first
class mail, postage prepaid, overnight air courier, facsimile transmission or
personal delivery to the Partners at their addresses as shown from time to time
on the records of the Partnership. Any Partner may specify a different address
by notifying the General Partner in writing of such different address. The
General Partner is not obligated to deliver or mail to any Limited Partner a
copy of the Partnership's Certificate of Limited Partnership or of any amendment
thereto or restatement thereof.
[The remainder of this page is intentionally left blank.]
13
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
GENERAL PARTNER:
NORTH ▇▇▇▇▇▇▇ DIALYSIS CENTER, INC.,
a Delaware corporation
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer
LIMITED PARTNERS:
NORTH ▇▇▇▇▇▇▇ DIALYSIS CENTER, INC.,
a Delaware corporation
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------------
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer
EVEREST HEALTHCARE TEXAS HOLDING
CORP.,a Delaware corporation
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------------
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial Officer
SCHEDULE 1
TO THE LIMITED PARTNERSHIP AGREEMENT
OF
EVEREST HEALTHCARE TEXAS, L.P.
Name Capital Participating Partnership
----- Contribution Percentage Units
------------ ---------- -----
General Partner:
----------------
North ▇▇▇▇▇▇▇ Dialysis Center, Inc., a 1/99.9% of its 1% 1
Delaware corporation total assets and
liabilities (having
a fair market
value of
$199,508)
Limited Partners:
----------------
North ▇▇▇▇▇▇▇ Dialysis Center, Inc., 98.9/99.9% of its 98.9% 98.9
a Delaware corporation total assets and
liabilities (having
a fair market
value of
$19,731,379)
Everest Healthcare Texas Holding $19,950 .1% .1
Corp., a Delaware corporation
TOTAL: $19,950,837 100% 100
----- =========== ==== ===
ASSIGNMENT OF LIMITED PARTNERSHIP INTERESTS OF
EVEREST HEALTHCARE TEXAS, L.P.
North ▇▇▇▇▇▇▇ Dialysis Center, Inc., a Delaware corporation ("▇. ▇▇▇▇▇▇▇"),
hereby assigns all of its 98.9 limited partnership units (the "Assignment") of
Everest Healthcare Texas, L.P., a Delaware limited partnership ("EHTLP") to
Everest Healthcare Texas Holding Corp., a Delaware corporation ("EHTHC"),
effective as of October 31, 1999, and EHTHC hereby accepts the Assignment. ▇.
▇▇▇▇▇▇▇ and EHTHC further agree that EHTHC shall be considered a "Limited
Partner" as defined in the Limited Partnership Agreement of EHTLP (the "LP
Agreement") with respect to the interests transferred pursuant to the
Assignment, and EHTHC hereby adopts all of the provisions of the LP Agreement
with respect to the units transferred pursuant to the Assignment.
In connection with the Assignment, ▇. ▇▇▇▇▇▇▇ and EHTHC, being the holders
of all of the interests in EHTLP, hereby agree to amend Schedule 1 to the LP
----------
Agreement and replace it with Amendment Number 1 to Schedule 1 to the LP
Agreement, attached hereto as Exhibit A effective as of October 31, 1999.
---------
[Signature page follows.]
Accepted and agreed this GENERAL PARTNER:
31/st/ day of October, 1999.
NORTH ▇▇▇▇▇▇▇ DIALYSIS CENTER, INC.,
a Delaware corporation
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial
Officer
LIMITED PARTNERS:
NORTH ▇▇▇▇▇▇▇ DIALYSIS CENTER, INC., a
Delaware corporation
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial
Officer
EVEREST HEALTHCARE TEXAS HOLDING CORP., a
Delaware corporation
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
By: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Financial
Officer
EXHIBIT A
---------
AMENDMENT NUMBER 1
TO SCHEDULE 1
TO THE LIMITED PARTNERSHIP AGREEMENT
OF
EVEREST HEALTHCARE TEXAS, L.P.
------------------------------
Name Capital Participating Partnership
---- Contribution Percentage Units
------------ ---------- -----
General Partner:
---------------
North ▇▇▇▇▇▇▇ Dialysis Center, Inc., a 1/99.9% of its 1% 1
Delaware corporation total assets and
liabilities (having
a total fair market
value of
$199,508)
Limited Partner:
----------------
Everest Healthcare Texas Holding $19,751,329/1/ 99% 1
Corp., a Delaware corporation
TOTAL: $19,950,837 100% 100
----- ============== === ===
____________
/1/ This amount is the aggregate of (i) the $19,950 initial cash contribution
by Everest Healthcare Texas Holding Corp. and (ii) $19,731,379, which
amount is equal to the fair market value of 98.9/99.9% of the total assets
and liabilities of North ▇▇▇▇▇▇▇ Dialysis Center, Inc. immediately prior to
the transfer of such assets and liabilities to Everest Healthcare Texas,
L.P.
