EXHIBIT 3.102
AGREEMENT AND CERTIFICATE
OF PARTNERSHIP OF
MESILLA VALLEY GENERAL PARTNERSHIP
THIS AGREEMENT AND CERTIFICATE OF PARTNERSHIP ("Agreement") is made and
entered into as of the fourteenth day of September 1985 ("Commencement Date"),
by and among MESILLA VALLEY HOSPITAL, INC., a New Mexico corporation ("MVH"),
and MESILLA VALLEY MENTAL HEALTH ASSOCIATES, INC., a New Mexico corporation
("Associates").
WHEREAS, the parties (collectively, the "Partners") wish to join
formally together as a New Mexico general partnership, and to set forth in full
the terms and conditions of their agreement in this regard;
NOW, THEREFORE, in consideration of the mutual promises set forth in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of 'which is hereby acknowledged, the Partners agree as follows:
1. Formation and Name
The Partners hereby form a general partnership pursuant to the laws of
the State of New Mexico, to be conducted under the name of MESILLA VALLEY
GENERAL PARTNERSHIP (the "Partnership").
2. Purposes
The Partnership shall establish, own and operate an inpatient
psychiatric hospital, to be built in the vicinity of Las Cruces, New Mexico,
including additional and ancillary
mental, psychiatric and psychological health care facilities for inpatients and
for outpatients (the "Facility"); shall acquire (by purchase, lease, donation or
otherwise) real and personal property; and shall obtain licenses and permits and
shall do all other things necessary, appropriate or desirable for the lawful and
economically viable operation of the Facility.
3. Principal Place of Business
The principal place of business of the Partnership shall be maintained
at 250 South Downtown Mall, Las Cruces, New Mexico, or at such other place or
places in the vicinity of Las Cruces, New Mexico, as the Partners may from time
to time determine.
4. Term
The Partnership shall be effective for an Original Term of fifty (50)
years from the Commencement Date, and thereafter for Additional Terms of five
(5) years each, unless and until dissolved in accordance with Section 13 of this
Agreement.
5. Capital Contributions and Partnership Interest
Simultaneously with the execution of this Agreement, each Partner shall
make an Original Capital Contribution in the amount of fifty thousand dollars
($50,000.00) in cash, except that each of MVH and Associates shall be given a
credit toward that contribution equivalent to such reasonable expenses as such
Partner shall have incurred or assumed (either directly or through any of its
shareholders acting on its behalf) in the
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development of the Facility prior, to the Commencement Date. Upon making its
Original Capital Contribution, each Partner shall be entitled to a fifty
percent (50%) Partnership Interest in the Partnership. No further contribution
to the capital of the Partnership shall be required of any Partner, except as
provided in Section 6 of this Agreement or as unanimously agreed upon by the
Partners.
Subject to the terms of this Agreement, the Partners shall be entitled
to share in the losses and profits of the Partnership and to participate in the
management of the Partnership in proportion to the fifty percent Partnership
Interest held by each Partner. Partnership Interests may be transferred only in
accordance with Sections 10, 11 and 12 of this Agreement.
6. Participation in Partnership Debt
Subject to the discretion of the Governing Body of the Partnership, the
general policy of the Partnership shall be to obtain funding for the Partnership
through the facility's operating revenues and through loans and extensions of
credit to the Partnership by the partners and/or by third parties. Financings
that require guarantees shall be guaranteed by the Partners to the extent of
their respective Partnership Interests; Provided that, in the event that any
Partner Guarantees a Partnership obligation in excess of its Partnership
Interest, each of the other Partners shall indemnify such guaranteeing Partner
in proportion to such other Partner's Partnership Interests.
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7. Capital Accounts and Partnership Records
The books of account in which all receipts and expenditures of the
Partnership are reflected, and all other records pertaining to the Partnership,
shall be maintained in accordance with generally accepted accounting practices,
consistently applied, and in compliance with the pertinent provisions of the
Internal Revenue Code and all applicable state and local tax codes. Such books
and records shall be open at all reasonable times for inspection by any Partner
or its duly authorized designees. At such intervals as the Governing Body may
from time to time determine, such books and records shall be audited by
independent certified public accountants, and financial statements shall be
prepared.
Separate Capital Accounts shall be maintained for each Partner and
shall consist of the sum of its contributions to the capital of the Partnership,
plus its share of the profits of the Partnership, plus its reasonable and
appropriately documented costs and expenses incurred on behalf of the
Partnership within the scope of the Partnership business, including without
limitation, transportation and out-of-town room and board, to the extent
approved by the Governing Body, less its share of the losses of the Partnership,
less any distributions to or withdrawals made by or attributed to it by the
Partnership.
8. Distribution of Net Cash Receipts
(a) The Net Cash Receipts of the Partnership shall be determined
as of the end of each fiscal year of the Partnership and shall consist of the
net profit or net loss of the Partnership, as the case may be, for such fiscal
year, increased by the sum of:
(i) depreciation and other non-cash charges deducted in computing
the net profit or net loss of the Partnership for such fiscal
year;
(ii) that portion of the proceeds of sale of Partnership assets
that represents the return of the book value for such assets;
and
(iii) any cash that becomes available during such fiscal year by
reason of a determination of the Governing Body or the Manager
to reduce any reserve funds;
and decreased by the sum of:
(iv) principal payments made by the Partnership on any of its debts
during such fiscal year;
(v) any expenditure made by the Partnership during such fiscal
year which are not chargeable to reserve funds established by
the Governing Body; and
(vi) additions to working capital and any other reserve funds
reasonable deemed necessary by the Governing Body or the
Manager during such fiscal year.
(b) Net Cash Receipts shall be estimated as soon as practicable,
without audit, after the end of each Partnership fiscal year, and all such
estimated Net Cash Receipts shall then be distributed promptly to the Partners
in proportion to their Partnership Interests. Upon the unanimous consent of the
Partners, distributions of Net Cash Receipts may be made more frequently than
annually. As soon as practicable after the Partnership
financial statements for a Partnership fiscal year are completed, any necessary
adjustments to such distribution of Net Cash Receipts shall be made.
(c) Distributions in kind of the property of the Partnership, in
liquidation or otherwise, shall be made only with the consent of all the
Partners. Prior to any such distribution in kind, the difference between the
market value and the book value of such property shall be credited or charged,
as appropriate, to the Partners' Capital Accounts in proportion to their
Partnership Interests. Upon such distribution of the property, such market value
shall be charged to the Capital Account of the Partner or Partners receiving
such distribution.
9. Management of Partnership
No Partner, acting alone, can bind the Partnership. The Partnership's
affairs shall be managed by a Governing Body, subject to the approval of the
Partners. The Partnership shall execute an agreement with Psychiatric
Management, Inc., a Delaware corporation (the "Manager"), for general management
of the Facility, and the Manager shall be responsible for the day-to-day
management of the business of the Facility. The Governing Body shall consist of
six (6) members, three (3) to be appointed by Associates and three (3) to be
appointed by MVH, within thirty (30) days of the Commencement Date. Each Partner
may, at any time and with or without cause, remove and replace any member which
it has previously appointed to the Governing Body, and may designate alternates
to attend meetings of the Governing Body in
the appointees absence. Under no circumstances may any action be taken by the
Governing Body except upon the concurrence of no less than four members thereof.
The Governing Body shall select a Chairman who will serve at its pleasure, and
shall delegate to such Chairman such powers and duties as the Governing Body, in
its sole discretion, may determine from time to time. The Governing Body shall
conduct its initial meeting at such time as the Partners shall mutually agree,
and shall adopt such bylaws and rules as may be necessary or desirable for the
conduct of its affairs, subject only to the terms of this Agreement and any
other document binding upon the Partnership.
10. Transfer of Partnership Interests
Subject to the provisions of Section 12 of this Agreement, any or all
of any Partner's Partnership Interest may be sold, conveyed, assigned, pledged
(except for the sole purpose of securing any financing for the benefit of the
Partnership, to the extent required by the lending party) or transferred in any
manner (hereinafter, the "transfer") only:
(a) to any other Partner; or
(b) to a third party, only with the written consent of all other
Partners.
Any attempted transfer of any or all of any Partner's Partnership Interest not
in accordance with the terms of this Section 10 shall be null and void.
11. Effect of Transfer of Partnership Interest
In the event of a transfer in accordance with this Agreement of all or
any of any Partner's Partnership Interest, the Partnership shall continue and
the transferee of such interest shall be admitted to the Partnership as a
general partner, with the same rights and obligations as the transferring
Partner had with respect to the transferred Partnership Interest, upon:
(a) execution by such transferee of an unconditional consent to be
bound by the terms of this Agreement and the Master Agreement; and
(b) filing with the appropriate state or county official of an
Amended Agreement to reflect the change in Partnership Interests.
12. Disqualification of a Partner
(a) Any Partner suffering a Disqualifying Event shall become a
Disqualified Partner and subject to the sanctions provided for in Section 12(b)
of this Agreement. Disqualifying Events shall include the following:
(i) any of the following events of Bankruptcy, namely, such
Partner's (A) application for or consent to the appointment of
a receiver, conservator trustee, liquidator, custodian or
other judicial representative for the Partner or any
substantial portion of its assets or properties; (B) admission
in writing of its inability generally to pay its debts as they
mature; (C) making of a general assignment for the benefit of
its creditors; (D) suffering entry of an order for relief by a
Bankruptcy Court for or against it or suffering adjudication
of insolvency; (E) filing a voluntary petition in bankruptcy
or a petition or an answer seeking reorganization or an
arrangement with creditors or
taking advantage of any bankruptcy, insolvency, readjustment
of debt, dissolution or liquidation law or statute, or filling
an answer admitting the material allegations of a petition
filed against it in any proceeding under any Such law; (F)
suffering entry of an order, judgment or decree by any court
of competent jurisdiction approving a petition seeking
reorganization of it or of all or a substantial part of its
assets and properties or appointing a receiver, conservator,
trustee, liquidator, custodian or other judicial
representative, should such order, judgment or decree continue
unstayed and in effect for a period of sixty (60) consecutive
days; provided, however, that in the event that both Partners
or either Partner and the Partnership shall suffer any of the
foregoing events of bankruptcy ("Simultaneous
Disqualification"), this Section 12(l)(i) shall be of no
effect for the duration of such Simultaneous Disqualification;
(ii) for the period of five years from the date first written
above, any material breach of this Agreement by such Partner,
not cured within thirty (30) days after notice to such Partner
by any other Partner of such breach; provided, however, that
no thirty (30) day cure period shall be extended to any
Partner in the event of its breach of Sections 10 or 14 of
this Agreements;
(iii) the responsibility of such Partner for any act which (A)
causes a dissolution of the Partnership or would justify entry
of a decree of dissolution of the Partnership under the laws
of the State of New Mexico; (B) adversely affects the tax
status of the Partnership under applicable federal, state or
local law; (C) adversely affects the Facility's licensure,
certification or approval under applicable federal, state or
local law; or (D) results in conviction of the Partner or any
of its shareholders, officers, directors, employees or agents,
or any of the shareholders, officers, directors, employees or
agents of Ohio Psychiatric Institutes, Inc, a Delaware
corporation, of a crime, unless such disqualification shall be
waived by a majority vote of the Partnership; and
(iv) in the case of the Partner which is a legal entity, such
Partner's uncured dissolution or liquidation.
Any Partner suffering from a Disqualifying Event, or any Partner receiving
actual notice of a Disqualifying Event, shall immediately notify the Chairman of
the Governing Body of the occurrence of a Disqualifying Event, and such Chairman
shall immediately notify all Partners of the Disqualifying Event.
(b) Within a period of sixty (60) days after the Governing Body
notifies the non-Disqualified Partners of the occurrence of a Disqualifying
Event, the remaining Partners shall elect to either:
(i) Require the Disqualified Partner to offer for sale to the
remaining Partners his entire Partnership Interest, pursuant
to Sections 12(e) and (f) of this Agreement; or
(ii) Cause the Partnership to redeem the entire interest of the
Disqualified Partner pursuant to Sections 12(e) and (f) of
this Agreement;
(iii) Cause the Partnership to be liquidated and dissolved pursuant
to Section 13 of this Agreement; or
(iv) Continue the Partnership, notwithstanding the occurrence of
such Disqualifying event, with the Disqualified Partner or its
successor(s) or assign(s).
Notwithstanding the election by the Governing Body pursuant to this Section
12(b), the Governing Body or any non-Disqualified Partner may seek legal and/or
equitable remedies against the Disqualified Partner in the event of a
Disqualifying Event.
(c) Upon the occurrence of a Disqualifying Event, the Disqualified
Partner's appointees to the Governing Body shall cease to be members of the
Governing Body and, thereafter, the Partnership's affairs shall be managed
exclusively by the
appointees of the non-Disqualified Partners, appointed in proportion to their
respective Partnership Interests; provided, however, that the appointees of the
Disqualified Partner shall be reinstated to full participation in the Governing
Body in the event that the non-Disqualified Partners elect to continue the
Partnership pursuant in Section 12(b)(iv).
(d) Elections pursuant to Section 12(b) shall be made by giving
written notice thereof to the Disqualified Partner within the prescribed sixty
(60) day period. In the event that the Governing Body fails to give notice of
its election pursuant to Section 12(b) within the prescribed sixty (60) day
period, it shall be conclusively presumed to have elected to continue the
Partnership pursuant to Section 12(b)(iv).
(e) In the event that any or all of the Disqualified Partner's
Partnership Interest is purchased or redeemed pursuant to Sections 12(b)(i) or
12(b)(ii) of this Agreement, the Disqualified Partner shall cease to be a
Partner to the extent his Partnership Interest has been purchased or redeemed,
upon
(i) payment, within 120 days following the date of notice of
election pursuant to Section 12(b) of this Agreement, of the
Buyout Price described in Section 12(f) of the Agreement; and
(ii) transfer of the Partnership Interest pursuant to Sections 10
and 11 of this Agreement;
provided, however, that the Disqualified Partner shall remain liable to the
party or parties acquiring his Partnership Interest for any negative balance (or
portion thereof attributable to the acquired Partnership Interest) of his
Capital Account, and for
any contingent or unliquidated liabilities not fully taken into account in
determining the Buyout Price.
(f) In the event that all or any of the Disqualified Partner's
Partnership Interest is purchased or redeemed pursuant to Sections 12(b)(i) or
12(b)(ii) of this Agreement, the Buyout Price shall be the lesser of
(i) the amount standing in such Disqualified Partner's Capital
Account (or portion thereof attributable to the acquired
Partnership Interest) at the close of business on the date of
the occurrence of the Disqualifying Event;
(ii) the amount standing in the Disqualified Partner's Capital
Account (or portion thereof attributable to the acquired
Partnership interest) on the last day of the calendar month
preceding the date upon which notice of the Disqualifying
Event is received by the Chairperson of the Governing Body; or
(iii) if the Disqualifying Event is an actual (or attempted)
transfer of all or a portion of the Disqualified Partner's
Partnership Interest, the price for which the Disqualified
Partner attempted to transfer such interest.
(g) Each Partner hereby constitutes and appoints the Chairman of
the Governing Body as its true and lawful agent and attorney-in-fact to execute
such documents, contracts and instruments of conveyance as may be necessary or
appropriate to confirm the conveyance of such Partner's interest in the
Partnership and the property of the Partnership in the event that such Partner
should become a Disqualified Partner under the terms of this Section 12, and
such Partner hereby acknowledges that such appointment is coupled with an
interest and is irrevocable.
13. Dissolution and Liquidation
(a) For purposes of this Agreement, the following shall constitute
Liquidating Events: (i) the expiration of the term of the Partnership, as set
forth in Section 4 of this Agreement; (ii) the unanimous consent of the
Partners to terminate the Partnership, which consent shall not be unreasonably
withheld in the event that the Facility shall not be licensed or operational
within a reasonable time after the Commencement Date; (iii) the election by the
Partners to terminate the Partnership pursuant to Section 12(b) of this
Agreement; and (iv) the adjudication of the Partnership as a bankrupt.
(b) Upon the occurrence of a Liquidating Event, the Governing Body
shall serve as Liquidator, under its normal rules and bylaws. The Liquidator
shall continue the Partnership for the sole purpose of winding up its affairs,
selling its assets and applying the proceeds of such sale in the manner and
order of priority provided by Section 13(c) of this Agreement; provided,
however, that for the purpose of preserving the going concern or goodwill value
of the Partnership's business pending sale thereof, and in order to minimize the
losses normally attendant upon such liquidation, the Liquidator may continue to
operate such business for a reasonable period following the occurrence of such
Liquidating Event, after which period the Partnership shall cease to do
business.
Upon the occurrence of a Liquidating Event, the Liquidator may convert
the assets of the Partnership into cash by selling such assets at one or more
public or private sales, for cash or
terms, at such price or prices as the Liquidator in its sole discretion shall
determine, or may make distributions in kind. The Liquidator may sell all or a
portion of the Partnership's assets and business to one or more Partners, or
their shareholders or affiliates.
Upon the sale of all of the Partnership's assets (other than assets
which are distributed in kind), the final Capital Account of each Partner shall
be computed and the Liquidator shall collect from each Partner the negative
balance, if any, standing in its final Capital Account, said negative Capital
Account being acknowledged by the Partners to be a legal debt to the
Partnership.
(c) The proceeds of the liquidation of the Partnership shall be
applied and distributed in the following manner and in the following order of
priority: (i) to the payment of the debts and liabilities of the Partnership
and to the expenses of liquidation in order of priority as provided by law, and
to the establishment of any reserves which the Liquidator deems necessary for
any contingent or unforeseen liabilities or obligations of the Partnership,
which reserves shall be paid over to an agent or trustee to be held in escrow
for the purpose of paying any such contingent or unforeseen liabilities or
obligations and at the expiration of such period as the Liquidator deems
advisable, and distributing the balance of such reserves as provided in this
Section 13(c); then to (ii) the repayment to each Partner of its final Capital
Account.
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The Partnership shall terminate and dissolve when all property owned by
the Partnership shall have been disposed of and the proceeds distributed to the
Partners in accordance with the provisions of this Section 13(c); provided,
however, that the establishment of any reserves in accordance with the
provisions of this Section 13(c) shall not have the effect of extending the term
of the Partnership.
14. Competition; Other Activities
(a) Each party hereby acknowledges that, in its capacity as a
Partner of the Partnership, it and its Governing Body appointees will acquire
valuable knowledge of the Partnership's business and business methods, patients
and clients, sources of patient and client referrals, and sources of financing
of the Partnership. Each Partner further acknowledges that any psychiatric
facility located within two hundred (200) miles of Las Cruces, New Mexico, would
compete, directly or indirectly, with the business of the Partnership and that
the utilization of such knowledge, directly or indirectly, for the benefit of
any other hospital business operated within two hundred (200) miles of Las
Cruces, New Mexico, would be injurious to and adversely affect the Partnership's
business and profitability. Hence, the Partners hereby acknowledge their
intention, during the term of this Agreement, to own, operate, or be employed or
retained in connection with the ownership or operation of psychiatric facilities
within two hundred (200) miles of Las Cruces, New Mexico, only as partners with
each other, pursuant to terms,
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conditions and agreements substantially similar to those provided in this
Agreement. Each Partner hereby covenants and agrees that, during the term of
this Agreement, and for three (3) years after the earlier of: (i) the
termination of this Agreement or (ii) such Partner's sale of all of its
Partnership Interest, no Partners will, without the consent or participation of
the other Partners, directly or indirectly, own, operate or participate in the
ownership or operation of any psychiatric, substance abuse or any other form of
mental health facility or unit or program within two hundred (200) miles of Las
Cruces, New Mexico other than the Facility.
(b) The Partners will not, directly or indirectly, employ, solicit
for employment, or advise or recommend to any other person or entity that they
or it employ or solicit for employment any employees of the Partnership.
(c) Each Partner hereby acknowledges that each of its
noncompetition agreements constitutes a separate agreement, independently
supported by good and adequate consideration, and that each such separate
agreement shall be severable from the other provisions of this Agreement and
shall survive this Agreement. The existence of any claim or cause of action by
any Partner against the Partnership or any other Partner, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by such other Partner or the Partnership of these noncompetition covenants and
agreements. Each Partner further recognizes and acknowledges that the
ascertainment of damages in the event of breach of any of the
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noncompetition covenants or agreement contained in this Section 14 would be
difficult, if not impossible, and each Partner therefore waives any claim or
defense, in any action brought by any other Partner or the Partnership to
enforce the terms of this Agreement, that such Partner or Partnership has an
adequate remedy at law.
(d) Except as otherwise specifically provided in this Section 14,
each Partner may engage in such other businesses and activities as it shall
determine, including without limitation, the ownership and operation of
psychiatric facilities beyond two hundred (200) miles of Las Cruces, New Mexico,
without accountability or liability in damages to the Partnership or any other
Partner, even though such other activity competes with or is enhanced by the
Partnership's business.
15. General Provisions.
(a) This Agreement shall bind and inure to the benefit of the
Partners, and their permitted heirs, successors and assigns.
(b) This Agreement contains the entire agreement and
understanding by and between the Partners with respect to the matters described
in this Agreement, and no force or effect shall be accorded any written or oral
representations, promises, agreements or understandings which are not contained
in this Agreement or the Master Agreement and its exhibits.
(c) Any notice required or permitted to be given under the terms
of this Agreement must be in writing, and shall be given by personal service or
dispatched by United States certified mail,
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return receipt requested, postage prepaid, or delivered by Federal Express or
similar courier service, to the addresses shown in Attachment 1 to this
Agreement, or such other address of which notice is provided in accordance with
the terms of this Section 15(c). Notices given pursuant to this Section 15(c)
shall be deemed served upon delivery.
(d) This Agreement may be modified, waived, or discharged only by
a writing signed by all the Partners. No waiver by any Partner of any breach by
any other Partner or of compliance with any condition or provision of this
Agreement shall be deemed a waiver of any other conditions or provisions of this
Agreement.
(e) The invalidity of any provision or provisions of this
Agreement shall not affect any other provision or provisions of this Agreement,
which shall remain in full force and effect, nor shall the invalidity of a
portion of any provision of this Agreement affect the balance of such provision.
(f) This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which taken together shall constitute but one and the same
instrument.
(g) The captions and headings of this Agreement are for
convenience only and in no way define, limit or describe the scope or intent of
any provision of this Agreement.
(h) All references in this Agreement to the masculine and/or
singular shall be construed to include the feminine, neuter and plural, as the
context may require.
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(i) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New Mexico.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the Partners, effective as of the Effective Date.
MESILLA VALLEY MENTAL HEALTH
ASSOCIATES, INC.,
a New Mexico corporation
/s/ [ILLEGIBLE]
-------------------------------------------
By:
Its: Pres.
MESILLA VALLEY HOSPITAL, INC.,
a New Mexico corporation
/s/ [ILLEGIBLE]
-------------------------------------------
By:
Its: [ILLEGIBLE]
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ATTACHMENT 1
Partnership
Name Interest
---- -----------
MESILLA VALLEY HOSPITAL, INC. 50%
3215 Cathedral Avenue, N.W.
Washington, D.C. 20008
MESILLA VALLEY MENTAL HEALTH 50%
ASSOCIATES, INC.
250 S. Downtown Mall
Las Cruces, New Mexico 88001
-----------
100%
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EXHIBIT D TO ASSIGNMENT AND ASSUMPTION
OF 21.25% PARTNERSHIP INTEREST
AMENDMENT TO AGREEMENT AND
CERTIFICATE OF PARTNERSHIP OF
MESILLA VALLEY GENERAL PARTNERSHIP
THIS AMENDMENT (the "Amendment") is made and entered into this 18 day
of April, 1991, by and between Mesilla Valley Hospital, Inc., a New Mexico
corporation ("MVH") and Mesilla Valley Mental Health Associates, Inc., a New
Mexico corporation ("Associates").
WHEREAS, MVH and Associates are the sole general partners of Mesilla
Valley General Partnership, a New Mexico general partnership ("MVGP"), with each
originally owning a Fifty percent (50%) general partnership interest in MVGP;
WHEREAS, MVH is purchasing a Thirty-one and 875/100s percent (31.875%)
general partnership interest in MVGP from Associates, ("Interest") pursuant to
(i) that certain Assignment and Assumption of 21.25% Partnership Interest and
(ii) that certain Assignment and Assumption of 10.625% Partnership Interest
(collectively, the "Assignments") (the partnership interest in MVGP being
conveyed pursuant to the Assignments is hereinafter referred to as the
"Interest").
WHEREAS, the Agreement and Certificate of Partnership of MVGP
("Partnership Agreement") provides for equal ownership of MVGP by Associates and
MVH, and that equal ownership is reflected in the numerous provisions of the
Partnership Agreement;
WHEREAS, because MVH is purchasing the Interest from Associates and,
thus, will own an eighty-one and 875/100s (81.875%) partnership interest in
MVGP, the parties hereto desire to amend the Partnership Agreement to reflect
such change in ownership interest;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby expressly acknowledged, the parties
hereto agree as follows:
1. The last paragraph of Section 5 of the Partnership Agreement
entitled "Capital Contributions and Partnership Interest" is hereby deleted and
replaced with the following:
Subject to the terms of this Agreement, the Partners
shall be entitled to share in the losses and profits of the
Partnership and to participate in the management of the
Partnership in proportion to the Partnership
Interest held by each Partner. Partnership Interests may be transferred
only in accordance with Sections 10, 11, and 12 of this Agreement.
Upon any such transfer, the Partnership Interest in the Partnership
owned by each Partner shall be adjusted to reflect any partnership
interest transferred by or to such Partner.
2. The third section of Section 9 of the Partnership Agreement
entitled "Management of Partnership" is hereby deleted and replaced with the
following:
The Governing Body shall consist of six (6) members, which members
shall be appointed by the Partners in accordance with and in proportion
to the percentage of Partnership Interest owned by each Partner in the
Partnership. For example, if one Partner owns a 66.67% Partnership
Interest in the Partnership, such Partner shall elect four (4) of the
six (6) members of the Governing Body. The members of the Governing
Body shall be appointed by the Partners within 30 days after any change
in ownership of Partnership Interests in the Partnership occurs.
3. Section 11 of the Partnership Agreement shall be amended to
add the following sentence to the end of such section:
In the event that a transfer of Partnership Interests occurs from one
Partner to another, such transfer shall be effective immediately and
the transfer of the rights and obligations of the Partnership Interests
which are transferred shall occur immediately upon execution of any
documents effectuating the transfer of Partnership Interests.
4. The parties hereto agree and confirm that all other terms and
conditions of the Partnership Agreement shall remain in full force and effect.
2
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the day and date first written above.
MESILLA VALLEY HOSPITAL, INC.
/s/ Bernard G. Barczak
--------------------------------------
By: Bernard G. Barczak
Its: Treasurer/Secretary
MESILLA VALLEY MENTAL HEALTH
ASSOCIATES, INC.
/s/ [ILLEGIBLE]
--------------------------------------
By:
Its:
3
AGREEMENT OF AMENDMENT OF THE AGREEMENT AND
CERTIFICATE OF PARTNERSHIP OF
MESILLA VALLEY GENERAL PARTNERSHIP
Mesilla Valley Hospital, Inc., a New Mexico corporation
("MVH"), and Mesilla Valley Mental Health Associates, Inc., a New Mexico
corporation ("Associates"), as the two general partners of Mesilla Valley
General Partnership (the "Partnership") do hereby amend the Agreement and
Certificate of Partnership of Mesilla Valley General Partnership (the
"Agreement") to delete paragraph 9 in its entirety and hereby agree that the
general partners of the Partnership may singularly bind the Partnership.
IN WITNESS WHEREOF, the parties have entered into this
Agreement as of the 18th day of November, 1996.
MESILLA VALLEY HOSPITAL, INC.
By: /s/ [ILLEGIBLE]
--------------------------------
Its: VP
MESILLA VALLEY MENTAL HEALTH
ASSOCIATES, INC.
By: /s/ [ILLEGIBLE]
--------------------------------
Its: VP