EXHIBIT 3.90
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
TEXAS WEST OAKS HOSPITAL, L.P.
This Amended and Restated 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 Texas West Oaks Hospital, 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 "Texas West Oaks
Hospital, 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 Texas West Oaks Hospital, 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
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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.
3.3 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
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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.
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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.
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
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(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 Partner's 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 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
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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 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.
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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 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,
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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.
9.7 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)
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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
10 Signed Page to
Amended and Restated Limited
Partnership Agreement of Texas West Oaks
Hospital, L.P.