Exhibit 3.22
AMENDMENT AND CONSENT NO. 1 TO
AGREEMENT OF LIMITED PARTNERSHIP OF
ENCORE MEDICAL, L.P.
A Delaware Limited Partnership
This AMENDMENT AND CONSENT NO. 1 TO
AGREEMENT OF LIMITED PARTNERSHIP (this “
Amendment ”) is made effective as of the 4th
day of October, 2004, by the undersigned sole general partner (the
“ General Partner ”) of Encore Medical,
L.P., a Delaware limited partnership (the “
Partnership ”), and the undersigned sole
limited partner (the “ Limited Partner ”)
of the Partnership.
WHEREAS the General Partner and the
Limited Partner entered into that certain Agreement of Limited
Partnership of Encore Medical, L.P. (the “ Partnership
Agreement ”, capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to them therein)
effective as of the 7th day of February, 2002;
WHEREAS the General Partner wishes
to grant a security interest in all of its interest in the
partnership, including without limitation its Percentage Interests
and all rights, privileges, authority and powers of the General
Partner, and the Limited Partner wishes to grant a security
interest in all of its interest in the partnership, including
without limitation its Percentage Interests and all rights,
privileges, authority and powers of the Limited Partner, to Bank of
America, N.A., as administrative agent (the “
Administrative Agent ”), pursuant to the
Security Agreement dated as of October 4, 2004 executed and
delivered by the grantors referred to therein to the Administrative
Agent (the “ Security Agreement ”) in
connection with that certain Credit Agreement dated as of October
4, 2004 among Encore Medical IHC, Inc., as borrower, Encore Medical
Corporation, the Administrative Agent and certain lenders and
financial institutions party thereto (the “ Credit
Agreement ”);
WHEREAS the Limited Partner wishes
to assign to the Administrative Agent the right to be admitted to
the Partnership as a Limited Partner, upon the occurrence and
continuance of an Event of Default (as defined in the Credit
Agreement) and pursuant to its exercise of remedies under the
Security Agreement; and
WHEREAS the General Partner and the
Limited Partner wish to amend the Partnership Agreement as set
forth below;
NOW, THEREFORE, the General Partner
and the Limited Partner hereby agree as follows:
SECTION 1 Amendments. A
new Section 6.10 shall be inserted into the Partnership Agreement
as follows:
“6.10
Partnership Interests to be
Treated as Securities .
All of the interest of each Partner in the Partnership, including
without limitation its respective Percentage Interests
and all of its rights, privileges, authority and
powers, shall be securities governed by Article 8 of the Delaware
Uniform Commercial Code.”
SECTION 2
Consents
(a)
The General Partner hereby consents
to (i) the granting of a security interest by the Limited Partner
in all of its interests in the Partnership, including without
limitation its respective Percentage Interests and all of its
rights, privileges, authority and powers, to the Administrative
Agent pursuant to the Security Agreement and (ii) the exercise of
remedies specified in Section 22(a)(iv)(C) of the Security
Agreement and the recognition of the Administrative Agent as the
record holder of the Limited Partnership interests in connection
therewith.
(b)
The Limited Partner hereby consents
to the granting of a security interest by the General Partner in
all of its interest in the Partnership, including without
limitation its respective Percentage Interests and all of its
rights, privileges, authority and powers, to the Administrative
Agent pursuant to the Security Agreement.
SECTION 2
Miscellaneous.
(a)
This Amendment shall be binding upon
the executors, administrators, estates, heirs and legal successors
of the parties hereto.
(b)
This Amendment and all questions
arising hereunder shall be resolved in accordance with the laws of
the State of Delaware, except for any choice of law provisions of
Delaware law that would result in the application of the
substantive laws of another jurisdiction.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned
have caused this Amendment to be executed as of the date first
above written.
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GENERAL PARTNER:
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ENCORE MEDICAL GP, INC.,
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a Nevada corporation
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By:
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/s/ Harry Zimmerman
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Name: Harry Zimmerman
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Title: EVP-General Counsel
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LIMITED PARTNER:
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ENCORE MEDICAL ASSET
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CORPORATION,
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a Nevada corporation
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By:
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/s/ Harry Zimmerman
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Name: Harry Zimmerman
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Title: EVP-General Counsel
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NOTICE: THIS PARTNERSHIP HAS MADE
AN ELECTION TO BE TREATED
AS A CORPORATION FOR FEDERAL
INCOME TAX PURPOSES.
AGREEMENT OF LIMITED
PARTNERSHIP
OF
ENCORE MEDICAL,
L.P.
(A Delaware Limited
Partnership)
This Agreement (“
Agreement ”) of Limited Partnership of Encore Medical,
L.P., a Delaware limited partnership (the “
Partnership ”), is entered into as of the 7th day of
February, 2002, by and between Encore Medical GP, Inc., a Nevada
corporation, as the sole general partner (“ General
Partner ”), and Encore Medical Asset Corporation, a
Nevada corporation, as limited partner (“ Limited
Partner ”) (each a “ Partner ” and
collectively the “ Partners ”).
ARTICLE 1.
ORGANIZATION
1.1
Formation.
The Partners hereby form the
Partnership for the purposes set forth below, subject to the
provisions of this Agreement and the Delaware Revised Uniform
Limited Partnership Act, as amended (the “ Act
”). The Partnership shall not conduct any business until the
certificate of limited partnership of the Partnership has been
filed with the Office of the Secretary of State of Delaware. For
purposes of determining a Partner’s rights to distributions
and allocations under this Agreement, and the right to vote or
consent with respect to a matter, the percentage interests of the
Partners in the Partnership are as set forth on Schedule A (“
Percentage Interests ”).
1.2
Name . The name of the Partnership is Encore
Medical, L.P., and all business of the Partnership shall be
conducted in that name, or in such other name as the General
Partner may determine.
1.3
Registered Agent;
Offices. The registered
agent and registered office of the Partnership shall be as
designated by the General Partner from time to time in accordance
with the Act. The principal office of the Partnership shall be
located at 9800 Metric Boulevard, Austin, Texas 78758, or such
other place as the General Partner may determine. The General
Partner shall cause the Partnership to maintain at its principal
office the books and records of the Partnership required by the Act
to be maintained there and shall keep at its registered office the
street address of its principal office.
1.4
Purposes. The purposes of the Partnership are to transact
any lawful business or businesses for which limited partnerships
may be organized under the Act, and to do all things necessary,
appropriate or incidental to the foregoing.
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ARTICLE 2.
CAPITALIZATION
2.1
Initial Capital
Contributions. The
initial capital contributions of the Partners are set forth on
Schedule A.
2.2
Additional Capital
Contributions. No Partner
shall have any obligation to contribute additional capital to the
Partnership. Unless otherwise agreed by all Partners, any
additional capital contributions that are made shall be made by the
Partners in proportion to their Percentage Interests.
2.4
Loans. Any Partner may lend money or other property to
the Partnership on commercially reasonable terms. Any amounts
advanced by a Partner to the Partnership after the date hereof
shall constitute loans unless designated in writing as a capital
contribution at the time made.
ARTICLE 3. DISTRIBUTIONS AND
ALLOCATIONS
3.1
Distributions.
Except as provided in Section 7.4,
distributions of Partnership cash or other property shall be made
at such times and in such amounts as the General Partner may
determine. All such distributions shall be made to the Partners in
proportion to their Percentage Interests, without economic
distinction between a General Partnership Interest and a Limited
Partnership Interest. All General Partnership Interests and Limited
Partnership Interests shall be entitled to pro-rata, equal
distributions and allocations during the duration of the
Partnership and upon liquidation and winding up.
3.2
Allocations.
For purposes of federal income
taxation, the Partnership shall continue to be treated as a C
Corporation, as it was prior to its conversion. All items of
income, gain, loss, deduction and credit of the Partnership shall
be allocated among the Partners in proportion to their Percentage
Interests, without economic distinction between a General
Partnership Interest and a Limited Partnership Interest.
ARTICLE 4.
MANAGEMENT
4.1
Authority of Limited
Partner. A Limited
Partner in its capacity as such does not have the power or
authority to participate in the management or control of the
Partnership’s business and affairs or to act for or bind the
Partnership. A Limited Partner shall have the right to vote or
consent with respect to a Partnership matter only when so provided
in this Agreement or by any nonvariable provision of the Act.
Unless otherwise provided in this Agreement or by any nonvariable
provision of the Act, any such vote or consent shall require the
affirmative vote or consent of a Majority Interest of the Limited
Partners.
Pursuant to Section 3.03 of the Act,
the Limited Partners may perform one or more of the following
functions on behalf of the Partnership without being deemed to have
participated in the control of the Partnership: (i) acting as an
employee of the Partnership; (ii) consulting with or advising the
General Partner on any matter, including the business of the
Partnership; (iii)
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calling, requesting, attending, or
participating in a meeting of the Partners or the Partnership; (iv)
serving on a committee of the limited partners; or (v) voting to
approve or disapprove the dissolution or winding up of the
Partnership, the reconstitution of the Partnership, the sale,
exchange, lease, mortgage, assignment, or pledge of an asset or
assets of the Partnership, the admission or removal of a Partner,
or an amendment of the Partnership agreement.
4.2
Authority of General
Partner. Except as
otherwise provided in this Agreement or any nonvariable provision
of the Act, the General Partner shall have exclusive control of the
management of the Partnership’s business and affairs with
full power and authority to do all things necessary or appropriate
to conduct the business and affairs of the Partnership, including
the power and authority to mortgage, pledge, grant a security
interest in or otherwise encumber any or all of the
Partnership’s assets without the consent of any other
Partner. Any person dealing with the Partnership may rely
conclusively on a certificate of the General Partner.
4.3
Indemnification.
To the fullest extent permitted by
the Act or other law, the General Partner, its employees,
affiliates and authorized representatives, shall be indemnified and
held harmless by the Partnership from and against all losses,
judgments, liabilities, costs, expenses (including professional
fees, court costs, penalties, fines, taxes and interest) and
settlement payments incurred in connection with the defense or
settlement of any actual or threatened action, proceeding or claim
arising out of or incidental to the person’s actions or
omissions in connection with the management and conduct of the
Partnership’s business and affairs, and shall be entitled to
advancement of expenses related thereto; provided, that any such
indemnification shall be limited to the assets of the Partnership.
The right of indemnification set forth in this section is intended
to include indemnification for the person’s own negligence
(but not gross negligence).
4.4
Management Fee;
Expenses. Unless approved
by a Majority Interest of the Limited Partners, the General Partner
shall not be entitled to any compensation from the Partnership for
its services to the Partnership; provided, that the General Partner
shall be entitled to be reimbursed by the Partnership for its
direct out-of-pocket costs and expenses, and an allocable share of
its overhead and other indirect costs and expenses, incurred in
connection with the management and conduct of the
Partnership’s business and affairs.
ARTICLE 5. ADMINI
