EXHIBIT 3.2.5
FIRST AMENDMENT TO AND RESTATEMENT OF
AGREEMENT OF LIMITED PARTNERSHIP
OF [ ]
(NOW KNOWN AS [ ] LIMITED PARTNERSHIP)
THIS FIRST AMENDMENT TO AND RESTATEMENT OF AGREEMENT OF LIMITED PARTNERSHIP
of [ ] (the "Partnership") dated as of
the 25th day of November, 1997, by and between Harborside Health I Corporation
as the general partner (the "General Partner"); and Harborside Healthcare
Limited Partnership as the limited partner (the "Limited Partner," together, the
"Partners"), and any such other persons or entities as may hereafter be admitted
to the Partnership as Limited Partners.
WHEREAS, the General Partner and Limited Partner joined together pursuant
to the provisions of the laws of the Commonwealth of Massachusetts to form the
Partnership pursuant to that certain Agreement of Limited Partnership dated
August 26, 1997 (the "Agreement") and the Partners are desirous of amending and
restating in its entirety the Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereby agree as follows:
1. The name of the Partnership is Harborside Healthcare Rhode Island Limited
Partnership.
2. The general character of the business intended to be transacted by the
Partnership is to acquire, own, lease, invest in, improve, hold, encumber,
sell, manage, maintain, operate and otherwise deal with nursing homes,
retirement homes, congregate care facilities, rehabilitation facilities,
psychiatric facilities, substance abuse facilities, medical office
buildings or other health care related commercial properties, and any
equity interest of the Partnership therein, whether direct or indirect,
through nominees, joint ventures or otherwise, and real estate and personal
property related thereto; to be a general and/or limited partner in any
general or limited partnership in which the Partnership shall act as a
general and/or limited partner which conducts activities within the scope
of this section; and to conduct any other business activity allowed under
the Massachusetts Uniform Limited Partnership Act (the "Act").
3. The address of the office of the Partnership at which shall be kept the
records and Partnership documents of the Partnership is to be:
c/o The Berkshire Group
470 Atlantic Avenue
Boston, Massachusetts 02210
The agent for service of process for the Partnership shall be:
Scott D. Spelfogel, Esq.
Office of the General Counsel
c/o The Berkshire Group
470 Atlantic Avenue
Boston, Massachusetts 02210
4. The name and business address of each Partner, General and Limited Partner
being respectively designated, is as follows:
General Partner Address
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Harborside Health I c/o The Berkshire Group
Corporation 470 Atlantic Avenue
Boston, MA 02210
Limited Partner Address
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Harborside Healthcare c/o The Berkshire Group
Limited Partnership 470 Atlantic Avenue
Boston, MA 02210
5. Profits, losses, credits and items thereof of the Partnership shall be
allocated, and cash, to the extent available for such purpose, shall be
distributed in the following percentages:
Harborside Health I Corporation 1.0%
Harborside Healthcare Limited Partnership 99.0%
6. No additional contributions to the capital of the Partnership have been
agreed to be made by the Partners.
7. A Limited Partner may substitute an assignee as contributor in his place
only with the prior written consent of the General Partner.
8. The Limited Partner has no right to withdraw from the Partnership during
the Partnership's existence, except with the consent of the General Partner
and on the terms agreed to at the time of withdrawal, and the General
Partner has no right to withdraw.
9. No Partner has a right to receive any distributions of property, including
cash, from the Partnership except to the extent the General Partner
determines to make distributions in accordance with Section 5 hereof.
10. No Partner has a right to receive distributions which include a return of
all or any part of its contribution except to the extent the General
Partner determines to make such distributions in accordance with Section 5
hereof.
11. The Partnership will be dissolved and its affairs wound up on December 31,
2029, unless sooner dissolved in accordance with the provisions of the Act.
12. The remaining General Partner or General Partners, if any, have the right
to continue the business of the Partnership on the happening of an event of
withdrawal of a General Partner.
13. The General Partner shall have and may exercise all rights and powers
granted by the Act as from time to time in effect.
14. The General Partner may appoint and remove one or more officers of the
Partnership including, without limitation, a president, one or more
executive vice presidents, one or more other vice presidents, a treasurer,
one or more assistant treasurers, a controller, a secretary, and one or
more assistant secretaries. The General Partner may assign to any such
officer from time to time such duties and powers as the General Partner may
deem appropriate subject, however, to the general provisions of this
agreement with respect to the rights, powers and duties of the General
Partner.
15. The General Partner shall be entitled to such fees and reimbursements as
may be determined by agreement of the Partners.
16. The General Partner shall have the right to propose the transfer of some or
all of its interest to a new or additional General Partner. Such proposed
new or additional General Partner shall become a General Partner of the
Partnership only upon the unanimous written consent of all of the Partners.
17. Special Power of Attorney Relating to Continuance of Partnership: If the
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business of the Partnership is continued after dissolution, the Limited
Partner constitutes and appoints the remaining or new General Partners, and
each of them, if more than one, irrevocably, recognizing their interest and
that of the other Partners herein, and intending to create a durable power
of attorney, as such Partners' true and lawful attorney to execute, swear
to and file whatever amended Certificates they deem appropriate in the
circumstances, and to take whatever action may be necessary to continue the
Partnership business under applicable law.
18. No person dealing with the Partnership, or its assets, whether as
mortgagee, assignee, purchaser, lessee, grantee or otherwise, shall be
required to investigate the authority of any General Partner purporting to
act on behalf of the Partnership, in selling, assigning, leasing,
mortgaging, or conveying any Partnership assets, nor shall any such
assignee, lessee, purchaser, mortgagee, or grantee be required to inquire
as to whether the approval of the Partners for any such sale, assignment,
lease, mortgage or transfer has been first obtained. Such person shall be
conclusively protected in relying upon a certificate of authority of, or in
accepting any instrument signed by any General Partner in the name and
behalf of, the Partnership or the General Partner.
19. The Partnership shall, to the extent provided below, indemnify a person who
was, is, or is threatened to be made a named Defendant or Respondent in a
proceeding because the person is or was a General Partner of the
Partnership. The indemnification required by this paragraph shall be
provided whenever it is determined, as provided below, that the person
seeking indemnification:
(1) Acted in good faith; and
(2) Reasonably believed:
(a) In the case of conduct in the person's official capacity as a
General Partner of the Partnership, that the person's conduct was
in the Partnership's best interest; and
(b) In all other cases, that the person's conduct was at least not
opposed to the Partnership's best interest; and
(3) In the case of a criminal proceeding, had no reasonable cause to
believe that his conduct was unlawful.
A determination that the indemnification standards set forth above have
been met shall be made by special legal counsel selected by the holders of
a majority in interest of Limited Partners who at the time of the vote are
not named Defendants or Respondents in the proceeding. In the event that
such a majority in interest cannot be obtained, special legal counsel shall
be selected by a majority in interest of all Limited Partners.
20. The General Partners shall have the authority to employ such agents,
employees, managers, accountants, attorneys, consultants and other persons
necessary or appropriate to carry out the business and affairs of the
Partnership, including itself and whether or not any such persons so
employed are Partners or affiliates, and to pay such fees, expenses,
salaries, wages and other compensation, including incentive fees, to such
persons as it shall, in its sole discretion, determine, provided that any
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payments to the Partners or affiliates shall, unless otherwise specifically
provided herein, be on arms-length terms. For all purposes hereof any
standard fees (i.e., fees similar to the highest fees generally charged by
such affiliates) paid to an affiliate in connection with the property,
whether the fees are for management, brokerage or other services rendered
or goods provided, shall be conclusively presumed to be reasonable arms-
length fees.
21. This Agreement may be amended by and only by the General Partner together
with the consent of the Limited Partner.
IN WITNESS WHEREOF, the members of said Partnership have executed this
Agreement as of the date first above written, under penalties of perjury.
HARBORSIDE HEALTH I CORPORATION
By: /s/ Damian Dell'Anno
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Damian Dell'Anno, Executive Vice
President of Operations
HARBORSIDE HEALTHCARE LIMITED PARTNERSHIP
By: Harborside Health I Corporation, General Partner
By: /s/ Damian Dell'Anno
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Damian Dell'Anno, Executive Vice
President of Operations
SCHEDULE TO EXHIBIT 3.2.5
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The following entities have the Form of First Amendment to and Restatement of
Agreement of Limited Partnership included as Exhibit 3.2.5, with any changes
from the form noted:
1. Harborside Acquisition Limited Partnership III (now Harborside North Toledo
Limited Partnership)
Changes from Form:
Paragraph 5 is an additional section describing the contribution of each
of the general partner and limited partner.
2. Harborside Acquisition Limited Partnership II (now Harborside Rhode Island
Limited Partnership)
3. Harborside Acquisition Limited Partnership I (now Harborside Connecticut
Limited Partnership)
4. Harborside Acquisition Limited Partnership IV (now Harborside Danbury
Limited Partnership)