EXHIBIT 3.33
LIMITED PARTNERSHIP AGREEMENT
OF
NEURO INSTITUTE OF AUSTIN, L.P.
This Limited Partnership Agreement is made and entered into this 31st
day of October, 2001, by and between PSI TEXAS HOSPITALS, LLC, a Texas limited
liability company, the principal place of business of which is 310 25th Avenue
North, Suite 209, Nashville, Tennessee 37203, as the general partner (the
"General Partner"), and PSI HOSPITALS, INC., a Delaware corporation, the
principal place of business of which is 310 25th Avenue North, Suite 209,
Nashville, Tennessee 37203, as the limited partner (the "Limited Partner"). (The
General Partner and Limited Partner are collectively referred to herein as the
"Partners.")
The Partners hereby agree as follows:
ARTICLE 1.
GENERAL
1.1 Formation. The Partners hereby form Neuro Institute of Austin,
L.P. (the "Partnership") as a limited partnership under the Texas Revised
Limited Partnership Act (the "Limited Partnership Act").
1.2 Name. The name of the Partnership shall be "Neuro Institute of
Austin, L.P." and all business of the Partnership shall be conducted in such
name; provided, however, the General Partner may change the name of the
Partnership at any time and from time to time by notice to the Limited Partner.
1.3 Purpose. The purpose of the Partnership is to engage in any
lawful act or activity in which a limited partnership may engage under the
Limited Partnership Act including, without limitation, the acquisition,
development, construction, owning, mortgaging, encumbering, leasing,
disposition, improvement of and otherwise dealing with real property and related
personal property.
1.4 Term. The term of the Partnership shall commence upon filing
of the Certificate of Limited Partnership of Neuro Institute of Austin, L.P.
(the "Certificate") with the Texas Secretary of State and shall continue until
the completion of the Partnership's dissolution, winding up, and liquidation as
provided herein.
1.5 Place of Business. The Partnership may have such places of
business within the United States of America as the General Partner determines
to be appropriate from time to time.
1.6 Registered Agent. The registered agent for service of process
on the Partnership in the State of Texas shall be National Registered Agents,
Inc., 905 Congress Avenue, Austin, Texas 78701, or such other person as the
General Partner may designate from time to time.
1.7 Filings. The General Partner has executed and shall cause to
be filed the Certificate in the office of the Texas Secretary of State, in
accordance with the provisions of the Limited Partnership Act, and shall execute
and file such other certificates or documents required by any state or other
jurisdiction in which the Partnership engages in business. The General Partner
shall take any and all other actions reasonably necessary to perfect and
maintain the status of the Partnership as a limited partnership and shall
execute and file for public record any and all filings in all places and at such
times as necessary for the continuation of and transaction of business by the
Partnership.
ARTICLE 2.
CAPITAL CONTRIBUTIONS AND CAPITAL ACCOUNTS
2.1 General Partner. The General Partner shall contribute the sum
of One Dollar ($1.00) as and for the General Partner's initial capital
contribution for its general partnership interest in the Partnership. Except as
provided in this Section 2.1, the General Partner shall not be required to make
any other capital contributions to the Partnership.
2.2 Contribution of Limited Partner. The Limited Partner shall
contribute the sum of Ninety-Nine Dollars ($99.00) to the Partnership as and for
its initial capital contribution for its limited partnership interest in the
Partnership.
2.3 No Right to Demand Capital Contributions: No Priorities.
Except as otherwise provided in this Agreement and permitted by the Limited
Partnership Act, the Limited Partner shall not demand or receive a return of all
or a portion of its capital contributions or withdraw from the Partnership
without the written consent of the General Partner. Under circumstances
requiring a return of any capital contributions, no Partner shall have the right
to receive property other than cash except as may be specifically provided
herein. No Partner shall have priority over any other Partner, either with
respect to the return of capital contributions or with respect to profits,
losses or distributions.
2.4 No Interest on Capital Contributions. No Partner shall receive
any interest, salary or drawing with respect to its capital contributions or its
capital account or for services rendered to the Partnership or otherwise in its
capacity as a Partner, except as otherwise provided in this Agreement.
2.5 Limited Liability. The Limited Partner shall not be liable for
the debts, liabilities, contracts or any other obligations of the Partnership.
Except as otherwise provided by applicable law, the Limited Partner shall be
liable only to
2
make its capital contributions and shall not be required to lend any funds to
the Partnership or, after its initial capital contribution has been made, to
make any additional capital contributions to the Partnership. Except as
otherwise provided in this Agreement, the General Partner shall not have any
personal liability for the repayment of any capital contributions of the Limited
Partner. The Limited Partner shall not participate in the control of the
business of the Partnership.
2.6 Establishment of Capital Accounts, A capital account shall be
established and maintained for each Partner in accordance with Section 704(b) of
the Internal Revenue Code of 1986, as amended from time to time (the "Code"),
the U.S. Treasury Regulations promulgated thereunder (the "Regulations") and
this Agreement.
ARTICLE 3.
ALLOCATIONS AND DISTRIBUTIONS
3.1 Participation in Profits or Losses. Profits or losses of the
Partnership, including all items of income, gain, loss, deduction, and credit,
for each fiscal year shall be allocated one percent (1%) to the General Partner
and ninety-nine percent (99%) to the Limited Partner.
3.2 Basis for Determining Profits or Losses. For purposes of
determining the profits, losses, and each item thereof allocable to any period,
profits, losses, and each item thereof shall be determined on a daily, monthly,
or other basis, as determined by the General Partner using any permissible
method under Code Section 706 and the Regulations thereunder.
33 Distributions. Except as otherwise provided in Article 7
hereof, distributions of cash or other property shall be made, at such times as
the General Partner may determine, one percent (1%) to the General Partner and
ninety-nine percent (99%) to the Limited Partner.
ARTICLE 4.
MANAGEMENT
4.1 Management of the Partnership. The General Partner shall have
full, exclusive and complete charge of all affairs and business of the
Partnership and of the management and control of the Partnership, subject only
to the limitations in this Agreement. The General Partner shall have all the
rights and powers that may be possessed by a general partner under the Limited
Partnership Act and such rights and powers as are otherwise conferred by law or
it deems necessary, advisable or convenient in managing the business and affairs
of the Partnership.
4.2 Limited Role of Limited Partner. Except as otherwise set forth
in this Section 4.2, the Limited Partner shall not take part in, or interfere in
any manner with, the conduct or control of the business or affairs of the
Partnership or have any
3
authority to act for, or on behalf of, the Partnership; provided, however, at
the sole and absolute discretion of the General Partner, the Limited Partner may
possess and exercise any of the powers allowed to be possessed or exercised by a
limited partner under the Limited Partnership Act without the Limited Partner
being deemed to participate in the control of the Partnership's business.
4.3 Exculpation of General Partner. No act or omission by the
Partnership or the General Partner, except gross negligence or willful
misconduct, shall ever subject the General Partner or its parent corporation,
their shareholders, officers, directors, employees, or agents to any liability
to the Partnership or any Partner. The foregoing exculpation and exoneration
expressly covers acts or omissions which constitute or are accompanied by
simple, common or ordinary negligence.
4.4 Indemnification of General Partner. To the fullest extent
provided by law, the Partnership shall indemnify the General Partner and its
parent corporation, their shareholders, officers, directors, partners, agents
and employees, and hold them harmless from and against all claims and
liabilities arising from, or related to, any qualified act or omission of the
Partnership and/or the General Partner under this Agreement, including all
damages, judgments, fees, settlements, costs and attorneys' fees actually and
reasonably paid or incurred by the General Partner or its parent corporation in
connection with any action, claim, suit or proceeding covered by this indemnity.
A "qualified act or omission" for purposes of this Section 4.4 is an act or
omission done in good faith or in a manner the General Partner or its parent
corporation reasonably believed to be in, or not opposed to, the best interest
of the Partnership.
ARTICLE 5.
TRANSFERS OF INTERESTS
5.1 Voluntary Transfers by General Partner. The General Partner
shall have the right to sell, assign, transfer, give or in any other way dispose
of its entire interest as general partner of the Partnership. Prior to the
effective date of such sale, assignment or transfer, such purchaser, assignee or
transferee shall be admitted as an additional general partner of the Partnership
and is hereby authorized to continue the business of the Partnership without
dissolution. Upon such a sale or other disposition, the General Partner shall
cease to be a general partner of the Partnership as provided in Article 6.
Notwithstanding anything in this Agreement to the contrary, the General Partner
may pledge, encumber, or otherwise give as collateral for loans or other
indebtedness, its general partnership interest in the Partnership without notice
to or the consent of the Limited Partner; upon any such pledge, encumbrance or
grant of a security interest by the General Partner, the General Partner shall
not cease to be a general partner of the Partnership.
4
5.2 Transfer by Limited Partner. No voluntary assignments,
transfers, hypothecation or encumbrance of the Limited Partner's interest or any
portion thereof shall be permitted unless (i) the prior written consent of the
General Partner is obtained, and (ii) said assignment, transfer, hypothecation
or encumbrance, in the opinion of counsel satisfactory to the General Partner,
complies with all applicable securities laws, and does not dissolve the
Partnership under the Limited Partnership Act. The requirement of said opinion
may be waived in the sole discretion of the General Partner. Any such transfer,
assignment, hypothecation or encumbrance of the Limited Partner's interest shall
not require the dissolution, winding up and liquidation of the Partnership.
Except to the extent otherwise specified in any such assignment, an assignee of
any interest in the Partnership shall be entitled to receive allocations of
profits or losses, including all items of income, gain, loss, deduction, and
credit thereof, and distributions of cash or other property attributable to the
assigned interest from and after the date on which such assignment is treated to
have occurred under this Agreement. No assignee of all or any part of the
Limited Partner's interest shall become a substituted Limited Partner with
respect to such interest unless the General Partner shall consent thereto in
writing, such consent to be in the sole discretion of the General Partner. A
person who acquires an interest in the Partnership but who is not admitted as a
substituted Limited Partner pursuant to this Section 5.2 shall be entitled only
to allocations and distributions with respect to such interest in accordance
with this Agreement, and shall have no right to any information or accounting of
the affairs of the Partnership, shall not be entitled to inspect the books and
records of the Partnership, and shall not have any of the rights, including but
not limited to the right to vote, of a General Partner or a Limited Partner
under the Limited Partnership Act or this Agreement. Accordingly, with respect
to such rights, including but not limited to the right to vote, a Limited
Partner shall be treated for purposes of this Agreement as the owner of any
interest assigned by him with respect to which the assignee has not become a
substituted Limited Partner.
5.3 Bankruptcy or Dissolution of the Limited Partner. Upon the
bankruptcy, dissolution, or cessation to exist as a legal entity of the Limited
Partner, the authorized representative or successor of such Limited Partner
shall have all the rights of the Limited Partner for the purpose of effecting
the orderly winding up and dissolution of the business and affairs of such
Limited Partner and such power as the Limited Partner possessed to constitute a
successor as an assignee and in making application to substitute such assignee
as a Limited Partner.
5
ARTICLE 6.
RESIGNATION OF OR TERMINATION OF STATUS AS GENERAL PARTNER
6.1 Withdrawal of General Partner. The General Partner shall have
the right to withdraw as and cease to be the General Partner at any time upon
thirty (30) days written notice to the Limited Partner. Prior to the effective
date of the withdrawal of a General Partner, the Limited Partner may elect an
additional general partner of the Partnership who is hereby authorized to and
shall continue the business of the Partnership without dissolution.
6.2 Termination of Status As General Partner. The General Partner
shall cease to be the General Partner upon the occurrence of any of the
following events: (i) the transfer of its general interest in the Partnership
pursuant to Section 5.1, (ii) the vote by the Limited Partner to remove such
General Partner for good cause (which shall mean gross negligence or fraud in
failure to comply with any material covenant or agreement contained in this
Agreement), and delivery to the General Partner of written notice of such vote,
(iii) the bankruptcy of the General Partner or the filing of a certificate of
dissolution, or its equivalent, or (iv) the involuntary transfer by operation of
law of the General Partner's interest in the Partnership.
6.3 Liability of the General Partner after Resignation or
Termination. If the General Partner resigns or its status as a general partner
is terminated in accordance with the provisions of this Article 6 or the Limited
Partnership Act, the General Partners liability as a general partner of the
Partnership under the Limited Partnership Act and this Agreement shall cease and
the Partnership shall promptly take all steps reasonably necessary under the
Limited Partnership Act to cause such cessation of liability; provided, however,
that if the General Partner resigns during dissolution and winding up the
Partnership, the General Partner shall continue to be the General Partner for
purposes of winding up the Partnership's affairs pursuant to Section 7.2 of this
Agreement, unless a successor General Partner is elected.
6.4 Election of Successor General Partner. Upon the withdrawal or
termination of general partnership status of a General Partner, the remaining
General Partner, if any, is hereby authorized to and shall continue the
Partnership without dissolution. If all of the General Partners withdraw or
their status is terminated pursuant to this Agreement or the Limited Partnership
Act, the Limited Partner may, within ninety (90) days of such withdrawal or
termination of status, consent in writing to continue the business of the
Partnership and to the election, to be effective as of the date of such
withdrawal or termination of status, of one or more successor General Partners.
Such election may occur before or after the effectiveness of such withdrawal or
termination; provided, however, that if such election occurs before such
effectiveness, the person so elected shall not become the
6
General Partner until such withdrawal or termination is effective and such
person has executed an amendment to this Agreement and has filed any and all
such amendments to the Certificate and other documents necessary to comply with
the Limited Partnership Act, and shall agree to accept all accompanying
liabilities, duties and obligations hereunder. The successor General Partner or
General Partners shall purchase from the terminated or withdrawing General
Partner its interest as general partner in the Partnership for an amount equal
to its then capital account balance. If an additional or successor General
Partner is admitted to the Partnership as provided in this Agreement, the
additional or successor General Partner, together with all remaining General
Partners, are hereby authorized to and shall continue the business of the
Partnership without dissolution (and if a successor General Partner is admitted
at a time when the withdrawing General Partner is the sole remaining General
Partner, such successor shall be admitted as a General Partner immediately prior
to the effective date of the withdrawal from the Partnership of the withdrawing
General Partner and such successor General Partner shall continue the business
of the Partnership without dissolution).
ARTICLE 7.
DISSOLUTION AND WINDING UP OF THE PARTNERSHIP
7.1 Dissolution of the Partnership. The Partnership shall dissolve
and commence winding up its affairs and liquidating its assets upon the
occurrence of (i) the written consent of the Limited Partner to dissolve, wind
up and liquidate the Partnership, (ii) the withdrawal, removal, bankruptcy, the
filing of a certificate of dissolution, or its equivalent, of the General
Partner, or any other event which under the Limited Partnership Act causes a
general partner to cease to be a general partner of the Partnership, unless (a)
at the time of the occurrence of such event there is a remaining general partner
who agrees to continue the business of the Partnership without dissolution and
does so, or (b) within ninety (90) days of such event, the Limited Partner
agrees in writing to the continuation of the business of the Partnership and to
the appointment (effective as of the date of such event) of one or more
additional or successor general partners of the Partnership, (iii) the
occurrence of any other event that makes it unlawful, impossible, or impractical
to carry on the business of the Partnership, (iv) the bankruptcy of the
Partnership, or (v) the entry of a decree of judicial dissolution of the
Partnership pursuant to the Limited Partnership Act.
7.2 Winding Up and Liquidation of the Partnership. Upon the
dissolution of the Partnership as described in Section 7.1, the Partnership
shall continue solely for the purposes of winding up its affairs in an orderly
manner, liquidating its assets, and satisfying the claims of its creditors and
Partners. The General Partner shall be responsible for overseeing the winding up
and liquidation of the Partnership and shall take full account of the
Partnership's liabilities and assets. Such assets shall be liquidated thereafter
as promptly as is consistent with obtaining the fair market value thereof. The
proceeds therefrom, to the extent
7
sufficient, shall be applied and distributed (i) first to creditors, including
Partners who are creditors to the extent otherwise permitted by law, in
satisfaction of liabilities of the Partnership (whether by payment or the making
of reasonable provisions for payment thereof), and (ii) the balance, if any, to
the Partners in accordance with their capital account balances, after giving
effect to all contributions, distributions and allocations for all periods.
7.3 Certificate of Cancellation. Upon completing the winding up
and liquidation of the Partnership, the General Partner shall execute,
acknowledge, and cause to be filed a Certificate of Cancellation of the
Partnership as provided by the Limited Partnership Act and such other documents
as may be required by any state or other jurisdiction in which the Partnership
engages in business to evidence the Partnership's dissolution and termination of
existence. The Limited Partner shall join in executing such documents if such
joinder is required by the Limited Partnership Act or deemed necessary or
appropriate by the General Partner. Upon the filing of a Certificate of
Cancellation of the Partnership and any other, documents necessary to terminate
the existence of the Partnership in the appropriate public office(s) as required
under the Limited Partnership Act, the Partners shall cease to be such and the
Partnership and this Agreement shall be terminated.
ARTICLE 8.
BOOKS OF ACCOUNT, ACCOUNTING, REPORTS, FISCAL YEAR AND BANKING
8.1 Books of Account. The Partnership's books and records and this
Agreement, and all amendments hereto, shall be maintained at the office of the
Partnership located at 310 25th Avenue North, Suite 209, Nashville, Tennessee
37203, as required by the Limited Partnership Act, and the Limited Partner shall
have reasonable access thereto for inspection and examination. The books and
records shall reflect all Partnership transactions and shall be appropriate and
adequate for the Partnership's business.
8.2 Accounting and Reports; Audit. As soon as reasonably
practicable after the end of each fiscal year, each Partner shall be furnished
with a copy of a statement of income or loss of the Partnership for such year,
and a statement showing the amounts allocated to such Partner pursuant to this
Agreement during or in respect of such year, and any items of income, expense or
credit allocated to it for purposes of federal income taxation pursuant to this
Agreement, all prepared in accordance with the accounting method adopted by the
Partnership, all of which information will be reflected in the Partnership's
federal income tax return; and delivery of a copy of such tax return to each
Partner shall be sufficient to fulfill the obligation of the General Partner
with respect to providing such information. In addition, the General Partner
shall submit such other reports as it shall deem
8
necessary to keep the Limited Partner advised of the status of Partnership
operations.
ARTICLE 9.
MISCELLANEOUS PROVISIONS
9.1 Further Action. Each Partner shall execute and deliver such
papers, documents and instruments, and perform such acts as are necessary or
appropriate, in the sole discretion of the General Partner, to implement the
terms hereof and the intent of the Partners hereto.
9.2 Indemnity of Partners. Each Partner shall be liable to the
extent of its respective interest in the Partnership. Subject to the foregoing
limitation, each Partner shall indemnify and hold harmless the other Partners
from and against any and all claims, losses, damages, costs or expenses of any
kind or character in excess of such other Partners' interests arising out of any
transaction contemplated by this Agreement or resulting therefrom,
9.3 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term of this Agreement, the legality, validity and enforceability of the
remaining provisions of this Agreement shall not be affected thereby, and in
lieu of such illegal, invalid and unenforceable provisions there shall be added
automatically as a part of this Agreement a provision as similar in terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
9.4 Right to Rely Upon the Authority of General Partner. No person
dealing with the General Partner shall be required to determine its authority to
make any commitment or undertaking on behalf of the Partnership, nor to
determine any fact or circumstance bearing upon the existence of its authority.
In addition, no purchaser of any property or interest owned by the Partnership
shall be required to determine the sole and exclusive authority of the General
Partner to sign and deliver on behalf of the Partnership any such instrument of
transfer, or to see to the application or distribution of revenues or proceeds
paid or credited in connection therewith, unless such purchaser shall have
received written notice affecting the same.
9.5 Texas Law. The Partners intend that the laws of Texas govern
the determination of the validity of this Agreement, the construction of its
terms and interpretation of the rights and duties of the parties.
9.6 Waiver of Action for Partition. Each of the Partners
irrevocably waives, during the term of the Partnership, any right to maintain
any action for partition with respect to the Partnership's property.
9
9.7 Parties in Interest. Subject to the provisions contained
herein, each and all of the covenants, terms, provisions and agreements herein
contained shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors and assigns of the respective parties hereto.
(Remainder of page intentionally left blank)
10
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
GENERAL PARTNER:
PSI TEXAS HOSPITALS, LLC,
a Texas limited liability company
By: /s/ Steven T. Davidson
------------------------------------
Steven T. Davidson, Vice President
LIMITED PARTNER:
PSI HOSPITALS, INC.,
a Delaware corporation
By: /s/ Steven T. Davidson
------------------------------------
Steven T. Davidson, Vice President
11