Exhibit 3-223
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MILLVILLE MERIDIAN LIMITED PARTNERSHIP
THIRD AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
AND
CERTIFICATE OF LIMITED PARTNERSHIP
THIS THIRD AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT AND
CERTIFICATE OF LIMITED PARTNERSHIP is entered into effective as of the 1st day
of January, 1988, by and among the undersigned persons designated as General
Partners and Limited Partners, respectively.
WITNESSETH:
WHEREAS, Meridian Nursing Centers, Inc., Xxxxxxx X. Xxxxx. Jr., Xxxxxx X.
Xxxxxxxx, Xxxx X. Xxxxxxx, Xxxxx X. Xxxxxx and Xxxxxx X. Xxxxxxx (the "Original
Partners") joined together to form a limited partnership known as Millville
Meridian Limited Partnership, a Maryland limited partnership (the
"Partnership"), the certificate and agreement of which were recorded with the
Maryland State Department of Assessments and Taxation on September 13, 1984 at
Liber F2669, folio. 2738; and
WHEREAS, the certificate and agreement of the Partnership were amended
pursuant to a First Amendment to Limited Partnership Agreement and Certificate
of Limited Partnership recorded with the Maryland State Department of
Assessments and Taxation on January 30, 1986 at Liber F2785, folio 2593; and
WHEREAS, pursuant to a Second Amended and Restated Limited Partnership
Agreement and Certificate of Limited Partnership recorded with the Maryland
State Department of Assessments and Taxation on March 27, 1987, at Liber
P2904, folio 0799, certain trustees were admitted as holders of Class B Limited
Partnership Interests; and
WHERE pursuant to a First Amendment to the Second Amended and Restated
Limited Partnership Agreement and Certificate of Limited Partnership effective
as of November 13, 1987 and recorded with the Maryland State Department of
Assessments and Taxation on December 2l, 1987, Meridian Nursing Centers, Inc.
was admitted to the Partnership as a Class A Limited Partner, and
WHEREAS, pursuant to a Second Amendment to the Second Amended and Restated
Limited Partnership Agreement effective as of November 13, 1987, and recorded
with the Maryland State Department of Assessments and Taxation on December 21,
1987, Meridian Nursing Centers,Inc. withdrew from the Partnership as a Class A
Limited Partner and MNC Associates '87 Limited Partnership (hereinafter
referred to as "MNC Associates '87") was admitted as a holder of a Class A
Limited Partnership Interest and certain tax allocations were modified; and
WHEREAS, the intention and agreement among the parties was that net income
for 1987 as provided in Article VI, Sections 6.l(b)(1) and 61(b)(2) of the
Partnership Agreement be specially allocated to MNC Associates `87; and
WHEREAS, by execution of this Third Amended and Restated Limited Partnership
Agreement and Certificate of Limited Partnership the undersigned parties
desire to amend the Partnership Agreement to reflect the understanding of the
parties; and
WHEREAS, Xxxxxxx X. Xxxxxxxxxxx, in his capacity as trustee of the various
trusts listed on Schedule I hereto, warrants and represents that he has all
necessary power and authority to bind the said trusts without necessity of
signature by the other co-trustees named herein.
NOW, THEREFORE, in consideration of the foregoing, of mutual promises of the
parties hereto, and of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the pasties hereto agree to
continue the Partnership upon the following terms and conditions:
ARTICLE I
Name and Purpose of Partnership
Section 1.1 Continuation
The undersigned continue the Partnership as a limited partnership under the
Maryland Revised Uniform Limited Partnership Act, Title 10 of the Corporations
and Associations Article of the Annotated Code of Maryland.
Section 1.2 Name and Office
The Partnership name shall be, and its business shall be conducted under the
name and style of, MILLVILLE MERIDIAN LIMITED PARTNERSHIP (the "Partnership").
The principal office of the Partnership shall be 00 Xxxx Xxxx,
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Xxxxxx, Xxxxxxxx 00000. The General Partner may at any time change the location
of such principal office and shall give due notice of any such change to the
Limited Partners.
Section 1.3 Purpose
The primary purpose of the Partnership shall be the ownership and the
operation of a nursing center in Broward County, Florida (the "Project"), and
the conduct of any business or activity which the General Partner determines
to be necessary, incidental, desirable or convenient to carry out the
Partnership's business purposes.
Section 1.4 HUD Authorization
In addition to the purposes of the Partnership as set forth herein, the
Partnership shall be specifically empowered and authorized to (i) apply for
and obtain from the Department of Housing and Urban Development (hereinafter
referred to as "HUD") contracts of mortgage insurance, interest subsidies, and
rent supplement payments pursuant to the National Housing Act, as amended,
Section 8 of the U.S. Housing Act of 1937, and (ii) enter into, with HUD, a
Regulatory Agreement governing the operation and maintenance of the Project,
as set forth below. The Partnership, through its General Partner, shall have
the right to apply for and obtain from the Secretary of Housing and Urban
Development, acting by and through the Federal Housing Commissioner, a
contract or contracts of mortgage insurance pursuant to the provisions of
Section 232 or any other Section of the National Housing Act, as amended,
covering bonds, notes, and other evidences of indebtedness issued by the
Partnership and any indenture of mortgage or deed of trust securing the same.
The Partnership is authorized to execute a note or notes. and a mortgage or
mortgages (the term "mortgage" being hereby defined as to include "deed of
trust") in order to secure a loan or loans to be insured by the Secretary of
Housing and Urban Development and to execute one or more Regulatory Agreements
and other documents required by the Secretary of Housing and Urban
Development, acting by and through the Federal Housing Commissioner, in
connection with such loan or loans. Any incoming partner shall, as a condition
of receiving an interest in the Partnership, agree to be bound by the
Regulatory Agreement and other documents required in connection with the loan
insured under the National Housing Act, as amended, to the same extent and on
the same terms as the other Partners of the same class. Upon any dissolution
of the Partnership, no title or right to possesion and control of the rental
housing or nursing home project or projects, and no right to collect the
rents therefrom shall pass to any person who is not bound by the Regulatory
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Agreement in a manner satisfactory to the Secretary of Housing and Urban
Development while any mortgage on partnership property is insured under the
National Housing Act, as amended. The General Partner is authorized and
empowered, on behalf of the Partnership, to negotiate, obtain and comply with
such amendments of the contract of mortgage insurance, mortgage, note,
Regulatory Agreement, plans and specifications, and related documents as may be
acceptable to the Federal Housing Administration. The aforesaid Regulatory
Agreement shall be binding upon the Partnership, its successors and assigns, so
long as a mortgage on the property of the Partnership, which is insured or held
by HUD, is outstanding. The Partnership shall comply in every respect with the
Regulatory Agreement and all applicable Federal, State and local statutes and
regulations including without limitation the HUD regulations applicable to a
partnership mortgagor. Any requirements imposed on the partnership mortgagor
under the National Housing Act and Regulatory Agreement, if inconsistent, with
any provision on this Limited Partnership Agreement, shall be controlling and
shall govern the rights and obligations of the parties hereto. It is further
agreed that the General Partner shall be fully authorized to sign or act in any
other appropriate manner, without limitation, including agreements,
certificates, resolutions, etc., related in any way to the closing for any FHA
financing of the Project. By the execution of this Limited Partnership
Agreement, each Partner agrees to be bound by any Regulatory Agreements and
other documents required in connection with the mortgage loans insured under
the National Housing Act, as amended.
Section 1.5 Applications, Permits and Approvals
The Partnership is hereby authorized to make application for certificates of
need, licenses, zoning and subdivision approvals, building permits and any
other permits or approvals required under federal, state or local laws
applicable to the Project to authorize the acquisition, construction and
operation; of the Project. Any and all acts taken on behalf of the Partnership
in furtherance of obtaining such approvals are hereby ratified, confirmed and
approved.
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ARTICLE II
Partners' Capital
Section 2.1 General Partner
The General Partner shall contribute to the Partnership as its capital
contribution the amount set forth on Schedule I.
Section 2.2 Limited Partners
The Limited Partners shall each contribute to the Partnership as their
capital contributions the amounts set forth on Schedule I.
Section 2.3 Partnership Capital
The capital of the Partnership shall be the amounts contributed by the
General Partner and Limited Partners.
Section 2.4 Interest on Capital
No interest shall be paid on any capital contribution to the Partnership.
Section 2.5 Withdrawal of Capital
No Limited Partner shall have the right to withdraw his capital contributed
to the Partnership until the Partnership is dissolved and terminated or until
the Limited Partners shall withdraw from the Partnership and no longer be a
Limited Partner as provided herein. No Limited Partner shall have any right
to receive any funds or property of the Partnership except as may be
specifically provided in this Agreement.
Section 2.6 Loan by Partners
If any Partner shall loan any monies to the Partnership, the amount of any
such loan shall not be an increase in his share of the distributions of the
Partnership; but the amount of any such loan shall be an obligation of the
Partnership to such Partner, and shall be repaid with interest and on such
terms as the General Partner shall determine.
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Section 2.7 Liability of Limited Partners
No Limited Partner shall be personally liable for any liabilities,
contracts, or obligations of the Partnership. A Limited Partner's liability is
limited to the amount of capital contributions made or required to be made by
any such Limited Partner pursuant to this Agreement. After his capital
contributions have been made no Limited Partner shall be required to make any
further capital contributions or lend any funds to the Partnership except as
otherwise required by Section 6.5B hereof or by the Revised Uniform Limited
Partnership Act of the State of Maryland. The General Partner shall not have
any personal liability for the repayment of the capital contribution of any
Limited Partner
Section 2.8 Extraordinary Contributions
If the Partnership has at any time a liability arising out of a tort or a
liability which is not customarily incurred by the Partnership in the ordinary
course of the Partnership's business and which cannot be satisfied from Net
Cash Flow or net proceeds from a Capital Transaction, such liability shall be
solely the liability of the General Partner to the extent the assets of the
Partnership are, insufficient to pay such liability. In such cases, the
General Partner shall make an Extraordinary Contribution to the Partnership,
as soon as practicable, in an amount sufficient to satisfy such liability.
Notwithstanding the provisions of Article VI, all losses of the Partnership
which are funded by Extraordinary Contributions shall be allocated to the
General Partners.
ARTICLE III
Rights, Powers and Duties of General Partner
Section 3.1 Authorized Acts
Subject to the provisions of this Agreement, the General Partner for, in the
name and on behalf of the Partnership is hereby authorized:
(i) To acquire by purchase, lease or otherwise any interest in real or
personal property or in any other partnership, corporation or other business
entity which may be necessary, convenient or incidental to the accomplishment
of the purposes of the Partnership.
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(ii) To construct, rehabilitate, demolish, rebuild, repair, operate,
maintain, finance and improve, and to own, sell convey, assign, mortgage or
lease any or all of the real estate and any personal property necessary,
convenient or incidental to the accomplishment of the purposes of the
partnership.
(iii) To borrow money and issue evidences of indebtedness in furtherance of
any or all of the purposes of the Partnership, and to secure the same by
mortgage, pledge or other lien any assets of the Partnership.
(iv) To prepay in whole or in part, refinance, recast, increase, modify or
extend any mortgages affecting the assets of the Partnership and in connection
therewith to execute any extensions, renewals or modifications of any such
mortgages on the assets of the Partnership.
(v) To employ a management company, including a company owned wholly or
partially by any one or more affiliated persons, or who is a General Partner
or an affiliate of a General Partner, to manage the assets of the Partnership
and to pay reasonable compensation for such services, provided the General
Partners (if more than one) shall act unanimously in connection therewith.
(vi) To execute any note, mortgage and/or loan agreement in order to secure
a loan to the Partnership.
(vii) To enter into any kind of activity and to perform and carry out
contracts of any kind necessary to or in connection with, or incidental to the
accomplishment of the purposes of the Partnership, so long as said activities
and contracts may be lawfully carried on or performed by a partnership under
the laws of the State of Maryland.
Section 3.2 Management of Partnership Business
The business and affairs of the Partnership shall be managed by the General
Partner who shall devote such of its time and services as the General Partner
in its absolute discretion deems necessary. To the extent permitted by the
applicable law of the State of Maryland, the General Partner shall possess and
enjoy all the rights and powers of partners in a partnership without limited
partners. Each of the Partners hereby agrees that any Partner may engage in
and/or possess an interest in other business ventures of every nature and
description, independently or with others, including, but not limited to, the
ownership, financing, leasing, operation, management and development of real
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property. The General Partner shall be reimbursed by the Partnership for all
expenses incurred by it in connection with the business of the Partnership.
Section 3.3 Business Control
No Limited Partner shall participate in or have any control over the
Partnership business. The Limited Partners hereby consent to the exercise by
the General Partner of the powers conferred on it by this Agreement and to the
employment, when and if in the discretion of the General Partner the same is
deemed necessary or advisable, of such brokers, agents or attorneys as the
General Partner, may determine (notwithstanding that any parties to this
Agreement may have an interest in, or be one of, such brokers, agents or
attorneys). No Limited Partner shall have any authority or right to act for or
bind the Partnership.
Section 3.4 Transfer or Withdrawal by General Partner
(a) A General Partner may not withdraw from the Partnership or sell,
transfer or assign his interest as General Partner without the prior consent
of a majority in interest of the Limited Partners and then only upon
compliance with the provisions in Section 3.4(c).
(b) In the event that a General Partner withdraws from the Partnership or
sells, transfers or assigns his entire interest pursuant to Section 3.4(a), he
shall be and shall remain liable for all obligations and liabilities incurred
by him as General Partner before such withdrawal, sale, transfer or assignment
shall have become effective, but shall be free of any obligation or liability
incurred on account of the activities of the Partnership from and after the
time. of such withdrawal, sale, transfer or assignment shall have become
effective.
(c) A General Partner may withdraw from the Partnership pursuant to Section
3.4(a) only upon meeting the following further requirements:
(i) the accountants for the Partnership shall deliver to the Partnership
their opinion that any substitute General Partner(s) has (have) sufficient
net worth and meet(s) all other published requirements of the Internal
Revenue Service necessary to assure that the Partnership will continue to be
classified as a partnership for federal income tax'purposes;
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(ii) counsel for the Partnership shall have rendered an opinion that the
withdrawal of the General Partner is in conformity with the Revised Uniform
Limited Partnership Act of the State of Maryland and that none of the actions
taken in connection with such withdrawal. will cause the termination or
dissolution of the Partnership or will cause it to be classified other than
as a partnership for federal income tax purposes; and
(iii) admission of a substitute General Partner who satisfies the
requirements of Section 3.5.
(d) The General Partner may at any time designate additional persons to be
General Partners, whose interest in the Partnership shall be such as agreed
upon by the General Partner and such Additional General Partner, provided that
the interest of the Limited Partners shall not be affected thereby. Such
additional Persons shall become successor or Additional General Partners only
upon meeting the conditions provided in Section 3.5.
Section 3.5 Admission of a Successor or Additional General Partner
A person shall be admitted as a General Partner of the Partnership only if
the following terms and conditions are satisfied:
(a) The admission of such persons shall have been consented to by the
General Partner and by such number of Limited Partners as are then required
under the Revised Uniform Limited Partnership Act of the State of Maryland to
consent to ratify admission of a General Partner, but in any event, such
admission shall have been consented to by not less than a majority in interest
of the Limited Partners (including both Class A and Class B Limited Partners);
(b) The successor and additional person shall have accepted and agreed to be
bound by all the terms and provisions of this Agreement, by executing such
documents or instruments that may be required or appropriate to effect the
admission of such person as a General Partner and such documents shall have
been filed for recordation and all other actions required in connection with
such admission shall have been performed;
(c) If a successor or additional person is a corporation, it shall have
provided the Partnership with evidence satisfactory to counsel for the
Partnership of its authority to become a General Partner and to be bound by
the terms and provisions of this Agreement; and
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(d) Counsel for the partnership shall render an opinion that the admission
of the successor or additional Person is in conformity with the Revised Uniform
Limited Partnership Act of the State of Maryland and that none of the actions
taken in connection with the admission of the successor Person will cause the
termination or dissolution of the Partnership, or will impair the limited
liability of the Limited Partners, or will cause it to be classified other than
as a partnership for federal income tax purposes under the rules and
regulations of the Internal Revenue Service promulgated at that time.
Section 3.6 Liability of General Partner to Limited Partners
The General Partner shall not be liable, responsible or accountable in
damages or otherwise to any Limited Partner for any act performed by it within
the scope of the authority conferred on it by this Agreement, except for acts
of malfeasance or gross negligence.
Section 3.7 Indemnification
The Partnership shall indemnify and save harmless the General Partner
against any claims or liability incurred by it provided that the acts or
omissions giving rise to such claims or liabilities were performed in good
faith in the belief that it was acting within the scope of its authority under
this Agreement. Nothing contained in this paragraph shall be construed as
imposing any liability on any Limited Partner.
ARTICLE IV
Section 4.1 Term and Dissolution
The Partnership shall continue in full force and effect until December 31,
2036 (or as otherwise provided by law), except that the Partnership shall be
dissolved prior to such date upon the happening of any of the following
events:
(a) o or other disposition of all or substantially all the assets of the
Partnership; or
(b) The death, insanity, bankruptcy or retirement of a General Partner if no
General Partner remains or none of the remaining General Partners (if any)
elects to continue the Partnership; or
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(c) The election to dissolve the Partnership made in writing by the Partners
whose total percentage of Partnership interests represent at least 79.2% of
the percentage interests of all of the Partners.
The term of the Partnership may not be extended without the prior written
approval of all Partners.
ARTICLE V
Transferability of Limited Partner Interests
Section 5.1 Withdrawal or Retirement
No Class A or Class B Limited Partner may withdraw or retire from the
Partnership, or receive a return of his or its contributions, without the
consent of the General Partner; provided, however, that a Class B limited
partnership interest which is held by a family trust as permitted by Section
5.2 shall not be bound by this provision.
Section 5.2 Assignability by Limited Partners.
(a) No Class A or Class B Limited Partner may assign or dispose of his or
its interest without first (i) offering the Partnership an opportunity to
purchase such interest upon the identical terms to be offered to any other
proposed assignor, purchaser or other transferee, and (ii) obtaining the prior
written consent of the General Partner, except that any Limited Partner may
transfer or dispose of all or any part of his Partnership Interest during his
lifetime for value or as a gift or by inter vivos trust, or, otherwise, to or
for the benefit of his immediate family "Immediate family" is hereby defined to
mean such Partner's spouse, children, grandchildren, sisters, brothers,
father, mother, father-in-law or mother-in-law The transferee of such a
Partnership interest, including a beneficial holder for a transferee, shall
hold the interest as a Class B Limited Partner subject to all of the terms and
provisions of this Agreement. Notwithstanding the first sentence, this
subsection 5.2(a), a Class B Limited Partner which is a family trust may sell,
assign, or transfer his or its interest without restriction, provided that the
transferee shall be bound by all the terms and conditions of this Agreement,
including any amendment hereto.
(b) Notwithstanding Paragraph (a), an individual Class A or Class B Limited
Partner may, by written instrument, designate any person (including a
corporate trustee) to become the assignee of all of his interest as a Limited
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Partner, immediately upon his death. Such an assignee if he shall then be
living, shall become a Substitute Class A or Class B Limited Partner
immediately upon the assignor's death without requirement of any action on the
part of the legal representative of the assignor Partner; and such legal
representative and the estate of such deceased Partner shall have no interest
whatsoever in the Partnership; provided, however, that the estate of the
deceased Partner shall remain liable for the liabilities of the deceased
Partner to the Partnership. Any such designation must be filed with the
General Partner during such Partner's lifetime. Such designation may be
revoked from time to time and a new such desiqnation made and filed with the
General Partner. The Partnership need not recognize such designated assignee
as a Substitute Class A or Class B Limited Partner until (i) duly notified in
writing of the death of the assignor Partner and (ii) furnished with a legal
opinion acceptable to the General Partner to the effect that such designation
is valid under the applicable laws of testate and intestate succession
Section 5.3 Amended Agreement and Certificate
Any transfer or change of any Partner's interest in the Partnership must be
reflected in an appropriate amendment to the Partnership Agreement and
Certificate of Limited Partnership.
ARTICLE VI
Allocations and Distributions to Partners
Section 6.1 Allocation of Net Income and Net Losses and Cash Distributions
from Normal Operations
(a) For purposes of this Agreement, the "net income" and "net losses" shall
mean the taxable income and losses as determined in accordance with the
accounting methods followed by the Partnership for Federal income tax purposes
but before deducting any allowance for depreciation or "recovery", of the cost
of the property and assets of the Partnership. Net income or net losses shall
not include any gain or loss realised by the Partnership from a "Capital
Transaction" as defined in Section 6.3.
(b) For purposes of this Agreement and federal and state income tax
purposes, all net Income and net losses of the Partnership for each calendar
year or fraction of a calendar year shall be allocated and credited or charged
as the case may be, as follows:
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(1) One hundred percent (100%) of an amount of net income up to the sum of
(A) the amount by which all mortgages on the Project and any other
indebtedness of the Partnership have been amortized (i.e. principal repaid)
during 1987 (other than repayments thereof out of the proceeds from a Capital
Transaction) and (B) the amount credited to any replacement or reserve
account during 1987 shall be specially allocated to MNC Associates `87 until
such time as it has been allocated an amount equal to the amount it would
have been allocated had it been admitted as a holder of a two and one-half
percent (2 1/2%) Class A Limited Partnership Interest as of January, 1987, and
the remainder shall be allocated and credited to the capital accounts of the
General Partner and other Class A Limited Partners in proportion to their
respective Partnership Interests. For 1988 and each subsequent year, an amount
of net income up to the sum of (A) the amount by which all mortgages on the
Project and any other indebtedness of the Partnership have been amortized
(i.e. principal repaid) during each year (other than repayments thereof out of
the proceeds from a Capital Transaction) and (B) the amount credited to any
replacement or reserve account during each year shall be allocated and
credited to the capital accounts of the General Partner and Class A Limited
Partners.
(2) One hundred percent (100%) of the balance of the net income for 1987
shall be specially allocated to MNC Associates `87 until such time as it has
been allocated an amount of the balance of net income equal to the amount it
would have been allocated had it been admitted as a holder of a two and
one-half percent (2 1/2%) Class A Limited Partnership Interest as of January,
1987, and the remainder of the balance of net income for 1987 shall be
allocated to the other Partners in proportion to their respective Partnership
Interests. For 1988 and each subsequent year, the balance of the net income
for each year shall be allocated and credited to the capital accounts of all
of the Partners.
(3) One hundred percent (100%) of all net losses incurred for l987 shall be
specially allocated to MNC Associates `87 until such time as it has been
allocated an amount equal to the amount it would have been allocated had it been
admitted as a holder of a two and one-half percent (2 1/2%) Class A Limited
Partnership Interest as of January, 1987 and the remainder of net losses for
1987 shall be allocated to the other Partners in proportion to their respective
Partnership Interests. For 1988 and each subsequent year, net losses for any
year shall be allocated and charged to the capital accounts of all the Partners.
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(4) One hundred percent (100%) of the amount of the depreciation or
"recovery" of the costs of all Partnership property and assets incurred for
1987 shall be specially allocated to MNC Associates `87 until such time as it
has been allocated an amount - equal to the amount it would have been
allocated had it been admitted as a holder of a two and one-half percent
(2 1/2%) Class A Limited Partnership Interest as of January, 1987, and the
remainder of the amount of the depreciation or "recovery" of the costs of all
Partnership property and assets for 1987 shall be allocated to the General
Partner and other Class A Limited Partners in proportion to their respective
Partnership Interests. For 1988 and each subsequent year, the amount of the
depreciation or "recovery" of the costs of all Partnership property and assets
shall be charged to the capital accounts of the General Partner and Class A
Limited Partners.
(c) For all purposes of this Agreement, except as otherwise provided in
Sections (b)(l), (2), (3) and (4) above, the amount of any item to be
credited or charged to the capital accounts of, or the amount of any item to
be distributed to, the General Partners or any class of Limited Partners or
all of the Partners, or any grouping of Partners as the case may be, shall be
credited, charged or distributed, as the case may be, in proportion to the
respective Partnership Interests of such Partners, as shown on Schedule I.
(d) For the purposes of this Agreement, except as otherwise provided in
Sections (b)(l), (2), (3) and (4) above, in the event of the transfer of all or
any part of a Partnership Interest (in accordance with the provisions of this
Agreement) at any time other than the end of a Partnership accounting year, the
distributive share of the net income and net losses and depreciation of the
Partnership in respect of the Partnership interest so transferred shall be
allocated between the transferor and the transferee in the same ratio as the
number of days in such Partnership accounting year before and after such
transfer, except that the provisions of this sentence shall not be applicable
to a gain or loss arising from a Capital Transaction. Gain or loss from any
such Capital Transaction shall be allocated on the basis of Partnership
interests on the date the gain is realized or the loss incurred, as the case
may be.
Section 6.2 Distribution of Net Cash Flow
(a) For all purposes of this Agreement, the term "Net Cash Flow" for any
calendar year or fraction of a calendar year, shall mean the excess, if any,
of (1) the sum of (A) the net income of the Partnership for such calendar year
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or Fraction thereof, plus (B) any funds previously set aside as reserves by
the General Partner to the extent that it no longer reasonably regards such
reserves as necessary in the efficient control of the Partnership business,
over (2) the sum of (A) all amounts payable in such calendar year or fraction
thereof on account of the amortization (i.e. principal payments) of any debts
of the Partnership (including, without limitation loans secured by mortgages
on the Project) other than repayments out of the proceeds of any Capital
Transaction (as defined in Section 6.3), plus (B) the amount of any funds set
aside as reserves or used for capital expenditures by the General Partner plus
(C) any other cash expenditures which have not been deducted in determining
net income of the Partnership.
(b) Net Cash Flow shall not include the net proceeds from any Capital
Transaction.
(c) The Net Cash Flow of the Partnership for each calendar year or fraction
thereof shall be distributed to the Partners in proportion to their respective
Partnership Interests as shown on Schedule I.
Section 6.3 Distribution of Proceeds from a Capital Transaction
Except as may be required by Section 6.6, the net proceeds resulting from
the refinancing, sale, exchange, condemnation, casualty, or other disposition
of any of the Partnership's assets or property (a "Capital Transaction") shall
be distributed and applied in the following order of priority;
(a) to the payment of debts and liabilities of the Partnership (including
all expenses of the Partnership incident to any such sale or refinancing of
the Partnership assets being sold or refinanced) other than loans, or other
debts and liabilities of the Partnership to Partners;
(b) to the setting up of any reserves which the General Partner, or the
liquidator if the Partnership is being dissolved deemed reasonably necessary
for contingent, unmatured or unforeseen liabilities or obligations of the
Partnership;
(c) to the repayment, of, any unrepaid loans theretofore made by the
Partners to the Partnership and to the payment of any unpaid amounts owing to
the General Partner under this Agreement;
(d) to the Partners in the aggregate amount of their Capital Contributions
reduced by all prior distributions made to them pursuant to this paragraph
(d); and
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(e) the remainder of such proceeds, to the Partners in proportion to their
respective Partnership Interests, as shown on Schedule I.
Section 6.4 Allocation of Gains and Losses from a Capital Transaction. All
gains and losses from a Capital Transaction shall be allocated in the
following manner:
A. All gains shall be allocated as follows:
(i) First, gains shall be allocated among the Partners with negative
balances in their Capital Accounts in proportion to such balances until the
Capital Account of each Partner is increased to zero;
(ii) Second, to each Partner who has received or will receive a
distribution out of the proceeds of such Capital Transaction pursuant to
Section 6.3(d), an amount of gain equal to the excess of the distribution over
the positive balances in the Capital Accounts of the Partners (determined
after the allocation in this Section 6.4A(i), in proportion to the respective
amounts of such excess; and
(iii) Third, gain in excess of amounts allocated under subsections (i) and
(ii) above shall be allocated to the Partners in accordance with their
Partnership Interests as set forth on Schedule I.
B. All losses shall be allocated as follows:
(i) First, an amount of loss equal to the amount by which the aggregate
amount of the Capital Accounts for all Partners exceeds the total capital
contributions of all Partners shall be allocated in the ratio that each
Partner's individual excess balance in his Capital Account bears to the
aggregate excess balances of all Partners;
(ii) Second, the remainder of the loss shall be allocated among the
Partners with positive Capital Accounts, after giving effect to allocations
under Section 6.4B (i), by allocating an amount of loss to each such Partner
which bears the same ratio to the total loss to be allocated under this
Section 6.4B (ii) as the positive Capital Account of such Partner bears to the
sum of the positive Capital Accounts of all Partners; and
(iii) Third, the amount of loss that remains after the allocations under
the preceding subsections (1) and (ii) shall be allocated to the Partners in
accordance with their respective Partnership Interests as set forth on
Schedule I.
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C. Any portion of the gains treated as ordinary income for Federal income
tax purposes under Sections 1245 or 1250 of the Code ("Recapture Amount")
shall be allocated among the General Partner and Class A Limited Partners in
proportion to their respective Partnership Interests.
Section 6.5 Capital Accounts
A. A separate Capital Account shall be maintained and adjusted for each
Partner. There shall be credited to each Partner's Capital Account the amount
of his Capital Contribution and such Partner's distributive share of the
profits for tax purposes of the Partnership; and there shall be charged
against each Partner's Capital Account the amount of all net cash flow
distributed to such Partner, the net proceeds resulting from the liquidation
of the Partnership's assets or from any sale or refinancing of a Project
distributed to such Partner, and such Partner's distributive share of the
losses for tax purposes of the Partnership. Otherwise, each Partner's Capital
Account shall be determined, maintained and adjusted in accordance with the
Treasury Regulations issued pursuant to Section 704(b) of the Code, and, in
particular, the capital account provisions of Treasury Regulation ss.l.704-
l(b)(2)(iv). In the event of any transfer of an interest in the Partnership,
the transferee' shall succeed to the capital account of the transferor in
respect of the interest transferred.
B. In the event that a Partner's Interest in the Partnership is liquidated
within the meaning of Treasury Regulation ss.l.704(b)(2)(ii)(g) and if,
following the liquidation, such Partner has a deficit balance in its Capital
Account after giving effect to all Capital Account adjustments through the
Partnership's taxable year in which, such liquidation occurs (other than
adjustments made pursuant to this Section 6.5.B), then such Partner shall be
unconditionally obligated to contribute to the capital of the Partnership, by
the end of the Partnership's taxable year during which such liquidation occurs
or, if later, within ninety (90) days after the date of liquidation, an amount
equal to the deficit balance in his Capital Account, which amount shall be paid
to creditors of the Partnership or distributed to other Partners in accordance
with their positive Capital Account balances and the provisions of Section 6.6
of this Agreement.
Section 6.6 Liquidation Proceeds
It is the intent of the Partners that, upon liquidation of the Partnership,
any liquidation proceeds available for distribution to the Partners be
distributed in accordance with the Partner's respective Capital Account
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balances and the Partners believe that distributions under Section 6.3 will
effectuate such intent.
Section 6.7 Political Contributions
All political contributions made by the Partnership shall be deemed to be
made solely from the individual Limited Partners. No benefit is intended to
inure in any way to the General Partner or any related trust. Further, the
benefits of political deductions shall be allocated ratably for all Limited
Partners regardless of their respective ownership.
ARTICLE VII
Books and Records; Accounting, Tax Elections, etc.
Section 7.1 Books and Records
The books and records of the Partnership shall be maintained by the General
Partner and shall be available for examination by any Partner, or his duly
authorized representatives, during regular business hours. The Partnership may
provide such financial or other statements to the Partners as the General
Partner in its discretion deems advisable.
Section 7.2 Bank Accounts
The bank accounts of the Partnership shall be maintained in such banking
institutions as the General Partner shall determine, and withdrawals shall be
made on such signature(s) as the General Partner may determine.
Section 7.3 Tax Returns: Elections
As soon as practicable after the end of each calendar year, the General
Partner shall mail to each Partner sufficient information with respect to the
Partnership necessary for the preparation of such Partner's Federal income tax
return.
Section 7.4 Fiscal Year: Method of Accounting.
The determination of the fiscal year and the method of accounting to be used
in keeping the books of the Partnership shall be made by the General Partner.
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ARTICLE VIII
General Provisions
Section 8.1 Notices
Any and all notices called for under this Agreement shall be deemed
adequately given only if in writing and delivered in person, or sent by
registered or certified mail, postage prepaid, to the party or parties for
whom such notices are intended.
All such notices sent by registered or certified mail, in order to be
effective, shall be addressed to the following addresses, or such other
address as may be indicated by each Partner:
Name Address
Meridian Nursing Centers, Inc. 00 Xxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Xxxxxxx X. Xxxxx, Xx. 000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx , 00000
Xxxxxx X. Xxxxxxxx 0000 Xxxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxx 00000
Xxxx X. Xxxxxxx 0000 Xxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxx X. Xxxxxx 0000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxxx 0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
MNC Associates 00 Xxxx Xxxx,
Xxxxxxx Xxxxxxxxxxx Xxxxxx, Xxxxxxxx 00000.
Xxxxxxx X. Xxxxxxxxxxx 00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Any other'Trustee c/o Xxxxxxx X. Xxxxxxxxxxx
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
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Section 8.2 Binding Provisions
The covenants and agreements contained herein shall be binding upon and
inure to the benefit of the heirs, executors, administrators, suceessors and
assigns of the respective parties hereto.
Section 8.3 Separability of Provisions
Each provision of this Agreement shall be considered separable and if for
any reasons any provision or provisions herein are determined to be invalid
and contrary to any existing or future law, such invalidity shall not impair
the operation of or affect any other provisions of this Agreement.
Section 8.4 Paragraph Titles
Paragraph titles are for descriptive purposes only and shall not control or
alter the meaning of this Agreement as set forth in the text.
Section 8.5 Amendments
This Agreement may be amended in any respect only by the unanimous written
consent of the Partners.
Section 8.6 Resident Agent
The Resident agent shall be Meridian Inc., 00 Xxxx Xxxx, Xxxxxx, Xxxxxxxx
00000.
WITNESS the execution hereof under seal as of the day and year first above
written.
GENERAL PARTNER: CLASS A LIMITED PARTNERS
MERIDIAN NURSING CENTERS, INC.
By: /s/ Xxxxxx X. Xxxxxxx /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------------- -----------------------------------
Xxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxx, Xx.
Chairman
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
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/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
MNC Associates '87
Limited Partnership
By: Meridian Nursing Centers,
Inc., General Partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
Chairman
CLASS B LIMITED PARTNERS:
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxxxx,
Trustee under a Trust
Agreement dated June 11, 1986
f/b/x Xxxxx Children
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxxxx,
Trustee under a Trust
Agreement dated June 4, 1986
f/b/x Xxxxxxxx Children
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxxxx,
Trustee under a Trust
Agreement dated November 21, 1986
f/b/x Xxxxxxx Children
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By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxxxx,
Trustee under a Trust
Agreement dated December 19, 1985
f/b/x Xxxxxx Children
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxxxx,
Trustee under a Trust
Agreement dated August 1, 1986
f/b/x Xxxxxxx Children
-22-
MILLVILLE MERIDIAN LIMITED PARTNERSHIP
SCHEDULE I
Capital Partnership
Partner Status Contributions Interests
Meridian Nursing General Partner $100 1.00%
Centers, Inc.
Xxxxxxx X. Xxxxx, Xx. Class A Limited Partner $ 50 9.40%
Xxxxxx X. Xxxxxxxx Class A Limited Partner $ 50 9.40%
Xxxx X. Xxxxxxx Class A Limited Partner $ 50 9.40%
Xxxxx X. Xxxxxx Class A Limited Partner $ 50 9.40%
Xxxxxx X. Xxxxxxx Class A Limited Partner $ 50 9.40%
MNC Associates `87 Class A Limited Partner $ 50 2.50%
Limited Partnership
Xxxxxx X. Xxxxxxxx Class B Limited Partner $ 10 1.98%
Xxxxxxx X. Xxxxxxxxxxx Class B Limited Partner $ 10 9.9%
and Xxxxxxxx X. Xxxxx,
Trustees f/b/x
Xxxxx Children
Xxxxxxx X. Xxxxxxxxxxx Class B Limited Partner $ 10 7.92%
and Xxxxxxxx X. Xxxxxxxx,
Trustees f/b/x
Xxxxxxxx Children
Xxxxxxx X. Xxxxxxxxxxx Class B Limited Partner $ 10 9.9%
and Xxxxxxxx Xxxxxxx,,
Trustees f/b/x
Xxxxxxx Children
Xxxxxxx X. Xxxxxxxxxxx Class B Limited Partner $ 10 9.9%
and Xxxxxx X. Xxxxxx,
Trustees f/b/x
Xxxxxx Children
Xxxxxxx X. Xxxxxxxxxxx Class B Limited Partner $ 10 9.9%
and Xxxxxx X. Xxxxxxx,,
Trustees f/b/x
Xxxxxxx Children
TOTAL $460. 100.00
GCC:5/9/88
0343j
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11/30/93 2:40
MILLVILLE MERIDIAN LIMITED PARTNERSHIP
FIRST AMENDMENT TO THE
THIRD AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
AND
CERTIFICATE OF LIMITED PARTNERSHIP
THIS FIRST AMENDMENT to thc Third Amended and Restatcd Limited Partnership
Agreement and Certificate of Limited Partnership is entered into effective as
on this __ day of November 1993 by and among the undersigned persons designated
as General Partners and Limited Partners, respectively.
WITNESSETH THAT:
WHEREAS, Millville Meridian Limited Partnership a Maryland limited
partnership (thereinafter referred to as the "Partnership"), was formed
pursuant to a partnership agreement effective as of August 21. 1984, the
certificate and agreement of which were recorded with the Maryland State
Department of Assessments and Taxation on September 13, 1984 at Liber F2669.
folio 2738 (thereinafter referred to as the "Partnership Agreement'); and
WHEREAS, the Partnership Agreement was amended pursuant to a First Amendment
to the Limited Partnership Agreement and Certificate of Limited Partnership
recorded with the Maryland State Department of Assessments and Taxation on
January 30, 1986 at Liber F2785, folio 2593; and
WHEREAS, pursuant to a Second Amended and Restated Limited Partnership
Agreement and Certificate of Limited Partnership recorded with the Maryland
State Department of Assessments and Taxation on March 27, 1987, at Liber
F2904, folio 0799, certain trustees were admitted as holders of Class B
Limited Partnership Interests; and
WHEREAS, pursuant to a First Amendment to the Second Amended and Restated
Limited Partnership Agreement and Certificate of Limited Partnership effective
as of November 13, 1987 and recorded with the Maryland State Department of
Assessments and Taxation on December 21, 1987. Meridian Nursing Centers, Inc.
was admitted to the Partnership as a Class A Limited Partner; and
WHEREAS, pursuant to a Second Amendment to the Second Amended and Restated
Limited Partnership Agreement effective as of November 13, 1987, and recorded
with the Maryland State Department of Asessments and Taxation on December 21,
1987. Meridian Nursing Centers. Inc. withdrew from the Partnership as a Class A
Limited Partner, and MNC Associates '87 Limited Partnership ("MNC Associates")
was admitted as a holder of a Class A Limited Partnership Interest and certain
tax allocations were modified; and
WHEREAS, pursuant to a Third Amended and Restated Limited Partnership
Agreement and Certificate of Limited Partnership effective as of January 1,
1988 and recorded with the Department on June 8, 1988 at Liber F3032, folio
01285, the Partnership Agreement was amended to reflect certain changes to the
Partnership Agreement: and
WHEREAS, Meridian Associates `87 Limited Partnership assigned its 2.5%
limited partnership interest to Meridian Inc. ("MI") pursuant to an Assignment
of Partnership Interests effective as of October 31, 1993; and
WHEREAS, pursuant to a subsequent Assignment of Partnership Interests, the
remaining limited partners assigned all of their partnership interests to MI;
and
WHEREAS, the parties to the Partnership Agreement desire to amend the
Partnership Agreement to reflect changes in the composition and partnership
interests of the Partnership and to correct the Partnership Agreement to
reflect the understanding of the parties.
NOW, THEREFORE, in consideration of the foregoing, of mutual promises of the
parties hereto, and of other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Each of the undersigned limited partners has transferred and assigned, or
caused the transfer and assignment of, their Partnership Interests to MI.
2. Schedule I of the Partnership Agreement is amended to read as follows:
MILLVILLE MERIDIAN LIMITED PARTNERSHIP
SCHEDULE I
Capital Partnership
Partner Status Contributions Interests
Meridian Healthcare, Inc. General Partner $100 1.00%
Meridian Inc. Class A Limited Partner $350 49.5%
Meridian Inc. Class B Limited Partner $ 60 49.5%
3. The Partnership Agreement is otherwise ratified and confirmed in all
other respects. If there are any conflicts between the terms of the
Partnership Agreement and this Amendment, then and in such event this
Amendment shall control.
4. This instrument may be executed in one or more counterparts, each of
which shall be an original and all of which shall together constitute one and
the same instrument.
-2-
IN WITNESS WHEREOF, the undersigned persons have executed this Agreement as
of the date and year first written above.
GENERAL PARTNER: CLASS A LIMITED PARTNERS
MERIDIAN HEALTHCARE, INC.
By: [graphic omitted] /s/ Xxxxxxx X. Xxxxx, Xx.
-------------------------------- -----------------------------------
Xxxxxxx X. Xxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxx X. Xxxxxxx
-----------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx
MNC ASSOCIATES '87
LIMITED PARTNERSHIP
By: Meridian Healthcare, Inc.,
General Partner
By: [graphic omitted]
----------------------------------
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CLASS B LIMITED PARTNERS:
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxx
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxxxx,
Trustee under a Trust
Agreement dated June 11, 1986
f/b/x Xxxxx Children
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxxxx,
Trustee under a Trust
Agreement dated June 4, 1986
f/b/x Xxxxxxxx Children
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxxxx,
Trustee under a Trust
Agreement dated November 21,
f/b/x Xxxxxxx Children
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxxxx,
Trustee under a Trust
Agreement dated November 4, 1986
f/b/x Xxxxxx Children
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxxxx,
Trustee under a Trust
Agreement dated August 1, 1986
f/b/x Xxxxxxx Children
-4-
