Exhibit 99.1
PARTNERSHIP AGREEMENT
dated as of July 27, 2000
of
FK PARTNERS
among
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
and
▇▇▇▇▇▇ ▇▇▇▇▇▇
JOINT VENTURE AND PARTNERSHIP AGREEMENT
TABLE OF CONTENTS
ARTICLE 1 - DEFINITIONS
1.1 Affiliate
1.2 Bank Loan
1.3 Bank Note
1.4 Business
1.5 Capital Account
1.6 Code
1.7 Company
1.8 ▇▇▇▇▇▇ Shares
1.9 Event of Default
1.10 Excess Interest Return
1.11 ▇▇▇▇▇ Shares
1.12 Interest
1.13 ▇▇▇▇ Loan
1.14 ▇▇▇▇ Shares
1.15 ▇▇▇▇▇ Shares
1.16 Net Income
1.17 Net Loss
1.18 Notes
1.19 Partner
1.20 Partnership
1.21 Percentage Interest
1.22 Permitted Transferee
1.23 Person
1.24 Shares
1.25 Tax Matters Partner
ARTICLE 2 - FORMATION OF PARTNERSHIP
2.1 Formation
2.2 Name
2.3 Purposes
2.4 Term
2.5 Principal Office
2.6 Fiscal Year
2.7 Property Ownership
2.8 Other Activities
2.9 Scope of Partner Authority
ARTICLE 3 - PARTNERSHIP INTEREST, CAPITAL CONTRIBUTIONS AND
DISTRIBUTIONS
3.1 Partnership Interests
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3.2 Initial Percentage Interests; Adjustment of Interests
3.3 Initial Capital Contribution
3.4 Additional Capital Contributions to Pay Interest on the Loans
3.5 Additional Capital Contributions
3.6 Distributions
3.7 Additional Contributions and Withdrawals
3.8 Payment of Fees and Expenses
ARTICLE 4 - BOOKS AND RECORDS; REPORTS; ALLOCATIONS; TAXES
4.1 Books
4.2 Reports and Audits
4.3 Preparation of Tax Returns
4.4 Capital Accounts and Allocations
4.5 Tax Matters
ARTICLE 5 - TRANSFERS
5.1 Transfers
ARTICLE 6 - TERM; DISSOLUTION
6.1 Term; Events of Dissolution
6.2 How Election Exercised
6.3 Winding-up
6.4 Liquidation; Payments of Debts; Distributions
6.5 Final Accounting
6.6 Costs and Expenses under Certain Circumstances
6.7 Termination of Agreement
ARTICLE 7 - MANAGEMENT
7.1 Control of Business
7.2 Vote of the Shares
7.3 Chairman
7.4 Handling Funds
7.5 Partners'Salaries
ARTICLE 8 - MATTERS REQUIRING SPECIAL VOTE OF THE PARTNERSHIP
8.1 Approval Required for Certain Actions
ARTICLE 9 - GENERAL PROVISIONS
9.1 Notices
9.2 Further Assurances
9.3 Computation of Time
9.4 Limitation of Authority
9.5 Fees and Expenses
9.6 Amendment
9.7 Waiver
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9.8 Governing Law
9.9 Remedies
9.10 Severability
9.11 Counterparts
9.12 Further Assurances; Duty of Good Faith
9.13 Binding Effect
9.14 Assignment
9.15 No Third Party Beneficiaries
9.16 Titles and Captions
9.17 Grammatical Conventions
9.18 References
9.19 Incorporation By Reference
9.20 Arbitration
9.21 Waiver of Partition
9.22 Entire Agreement
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PARTNERSHIP AGREEMENT
PARTNERSHIP AGREEMENT dated as of July 27, 2000, by and among ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, M.D. ("▇▇▇▇▇", ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., ("▇▇▇▇▇") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
("▇▇▇▇▇▇" and collectively, the "Partners").
W I T N E S S E T H :
WHEREAS, the Partners desire to form a general partnership under the
Uniform Partnership Act of the State of Illinois (the "Partnership");
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter set forth, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 "Affiliate" of a person means any other person directly or
indirectly controlling or controlled by, or under direct or indirect common
control with, such person.
1.2 "Bank Loan" shall have the meaning set forth in Section 3.3 hereof.
1.3 "Bank Note" shall have the meaning set forth in Section 3.3 hereof.
1.4 "Business" shall have the meaning set forth in Section 2.3 hereof.
1.5 "Capital Account" shall have the meaning set forth in Section 4.4
hereof.
1.6 "Code" shall mean the Internal Revenue Code of 1986, as amended.
1.7 "Company" shall have the meaning set forth in Section 2.8 hereof.
1.8 "▇▇▇▇▇▇ Shares" shall have the meaning set forth in Section 2.4
hereof.
1.9 "Event of Default" shall mean one of the events set forth in
Section 6.1(c) hereof.
1.10 "Excess Interest Return" shall have the meaning set forth in
Section 3.6.
1.11 "▇▇▇▇▇ Shares" shall have the meaning set forth in Section 3.3
hereof.
1.12 "Interest" shall have the meaning set forth in Section 3.1 hereof.
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1.13 "▇▇▇▇ Note" shall have the meaning set forth in Section 3.3
hereof.
1.14 "▇▇▇▇ Shares" shall have the meaning set forth in Section 2.3
hereof.
1.15 "▇▇▇▇▇ Shares" shall have the meaning set forth in Section 2.3
hereof.
1.16 "Net Income" shall have the meaning set forth in Section 4.4(b)
hereof.
1.17 "Net Loss" shall have the meaning set forth in Section 4.4(b)
hereof.
1.18 "Notes" shall have the meaning set forth in Section 3.4 hereof.
1.19 "Partner" shall have the meaning set forth in Section 2.1 hereof.
1.20 "Partnership" shall have the meaning set forth in the Recitals.
1.21 "Percentage Interest" shall have the meaning set forth in Section
3.1 hereof.
1.22 "Permitted Transferee" shall mean (i) the Partnership or any
other Partner; (ii) a transferee by intestate succession or testamentary
disposition; (iii) the spouse or children, or a trustee for the spouse or
children or both, of the transferee or (iv) a corporation, 51% or more of the
capital and voting stock of which is owned, directly or indirectly, by the
transferee.
1.23 "Person" means any natural person, corporation, joint stock
company, partnership, joint venture, association, estate, trust, government of
governmental body, agency or instrumentality, or other entity.
1.24 "Shares" shall have the meaning set forth in Section 2.3 hereof.
1.25 "Tax Matters Partner" shall mean the "Tax Matters Partner" as
defined in Section 6231(a)(7) of the Code.
ARTICLE 2
FORMATION OF PARTNERSHIP
2.1 Formation. ▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇ (each, a "Partner" and
collectively, the "Partners") hereby agree to form the Partnership under the
Uniform Partnership Act of the State of California pursuant to the terms of this
Agreement.
2.2 Name. The name of the Partnership shall be FK Partners.
2.3 Purposes. Except as otherwise provided herein, the Partnership
shall engage in the business (the "Business") of (i) acquiring 1,140,780 shares
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of common stock of Mercury Air Group, Inc. beneficially owned by ▇▇▇▇▇▇▇ ▇▇▇▇
and/or SK Acquisition, Inc. (the "▇▇▇▇ Shares"); (ii) holding the Shares; (iii)
holding the following shares and options of the Company: 91,125 shares and
156,125 options held by ▇▇▇▇▇ ("▇▇▇▇▇ Shares"); 117,625 options held by ▇▇▇▇▇
("▇▇▇▇▇ Shares"); and 539,425 shares held by ▇▇▇▇▇▇ ("▇▇▇▇▇▇ Shares", and
collectively, with the ▇▇▇▇▇ Shares, the ▇▇▇▇▇ Shares, and the ▇▇▇▇ Shares, the
"Shares"); (iv) exercising voting power with respect to the Shares, and (iv)
disposing of the Shares, all upon the terms and conditions set forth in this
Agreement, provided, however, that except as set forth in Section 7.2, the ▇▇▇▇▇
Shares, ▇▇▇▇▇ Shares, and ▇▇▇▇▇▇ Shares shall not be considered as owned by the
Partnership and no Partner shall be entitled to an addition to his capital
account as a result of his ownership or pledge to the Partnership of such
Shares. The Partnership intends to purchase the ▇▇▇▇ Shares from ▇▇▇▇, payable
(i) $7.00 per share in cash for a total of $7,985,460, (ii) $3.00 per share in
the form of a Note to ▇▇▇▇▇▇▇ ▇▇▇▇ (the "▇▇▇▇ Note") for a total of $3,422,340.
2.4 Term. The Partnership shall continue in existence until January 1,
2020, unless it is terminated earlier as provided in this Agreement.
2.5 Principal Office. The principal office of the Partnership initially
shall be located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at
such other place as may be selected from time to time by the Partners. The
Partnership may maintain such other offices at such other places as the Partners
deem advisable.
2.6 Fiscal Year. The fiscal year and the taxable year of the
Partnership for federal income tax purposes shall be the calendar year.
2.7 Property Ownership. The Shares and all other properties and assets,
real or personal, tangible or intangible, owned by the Partnership or acquired
by the Partnership through purchase, contribution by a Partner or otherwise
shall be held and recorded in the name of the Partnership. The Shares and all
such properties and assets shall be deemed to be owned by the Partnership as an
entity, and no Partner individually shall have any ownership of the Shares of
such other property or assets.
2.8 Other Activities. Each Partner may engage or participate, or
possess any interest, in any other business enterprise, venture or activity of
any nature or description, independently or with others, and may receive and
enjoy income therefrom; provided, however, that none of the Partners nor their
Affiliates shall engage in the business of providing aviation services, except
through the Partnership or through Mercury Air Group, Inc. (the "Company"). None
of the Partners shall be required to account to the Partnership or the other
Partners with respect to any such income, nor shall the Partnership or the other
Partners have, by virtue of this Agreement, any rights or interest in or to such
independent enterprise, venture or activity or the income derived therefrom.
2.9 Scope of Partner Authority. Except as otherwise expressly and
specifically provided in this Agreement, none of the Partners shall have any
authority to act for, or to assume any obligations or responsibilities on behalf
of, the Partnership or of the other Partners.
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ARTICLE 3
PARTNERSHIP INTERESTS, CAPITAL CONTRIBUTIONS AND DISTRIBUTIONS
3.1 Partnership Interests. The interest (an "Interest" or "Interests")
of each Partner in the profits, losses, capital, distributions and any other
items of the Partnership shall be allocated in accordance with their relative
Percentage Interests in the Partnership. "Percentage Interest" means, with
respect to any Partner, the Percentage Interest set forth in Section 3.2 hereof.
If an Interest in the Partnership is transferred in accordance with the
provisions of this Agreement, the transferee of such Interest shall succeed to
the Percentage Interest of the transferor to the extent it relates to the
transferred Interest.
3.2 Percentage Interests. The Percentage Interests of the Partners
shall be 29.05% for ▇▇▇▇▇, 29.05% for ▇▇▇▇▇ and 41.90% for ▇▇▇▇▇▇. Each Interest
shall be personal property for all purposes. Percentage Interests shall not be
adjusted in the event of any capital contributions pursuant to Section 3.4 or
for any other reason.
3.3 Initial Capital Contributions. No Partners shall be required to
make an initial capital contribution to the Partnership, provided, however, that
each Partner shall be required to guarantee (i) a loan in the amount of
$7,985,460 from the Bank of America, N.A. (the "Bank Loan") in the form of a
note attached hereto as Exhibit A (the "Bank Note") and (ii) a note to ▇▇▇▇▇▇▇
▇▇▇▇ in the amount of $3,422,340 in the form of a Note attached hereto as
Exhibit B (the "▇▇▇▇ Note").
3.4 Additional Capital Contributions to Pay Interest on the Loans. In
order to pay interest on the ▇▇▇▇ Note and the Bank Note (collectively, the
"Notes"), the Partners shall contribute to the Partnership the following
amounts: First, ▇▇▇▇▇ shall contribute the first $350,000, on a per annum basis
of all amounts received by him as Chairman of the Board of the Company and ▇▇▇▇▇
shall pledge such amounts to be received in a form acceptable to Bank of
America, N.A.; Second, ▇▇▇▇▇▇ shall contribute all amounts received by him as
salary or bonus from the Company or its Subsidiaries, minus amounts received by
him from the Company or its Subsidiaries from the corresponding period of the
fiscal year ended June 30, 2000, with ▇▇▇▇▇▇'▇ receipts calculated from the
later of August 1, 2000, or the date of the last contribution by ▇▇▇▇▇▇; Third,
the Partners shall contribute all additional amounts on an equal basis. If any
Partner fails to make a capital contribution pursuant to this Section 3.4 (such
Partner hereinafter referred to as the "Defaulting Partner"), any other Partner
may, at his option, with the approval of the third Partner, make such
contribution, which contribution shall be considered a loan by the Partner who
made such loan to the Partnership on terms acceptable to the Partner and such
third Partner. The amount by which the Defaulting Partner failed to make a
capital contribution shall be considered a loan by the Partnership to the
Defaulting Partner, and shall bear interest at the rate of twenty percent (20%)
per annum.
3.5 Loan of Company Stock and Options.
(a) In order to secure the Bank Note, the Partners hereby agree to lend
to the Partnership their respective ▇▇▇▇▇ Shares, ▇▇▇▇▇ Shares and ▇▇▇▇▇▇
Shares.
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(b) the partners hereby agree that their respective ▇▇▇▇▇ Shares, ▇▇▇▇▇
Shares, and ▇▇▇▇▇▇ Shares (the "Personal Shares") may be pledged to the Bank as
security for the Bank Note.
(c) In the event that the Bank and/or ▇▇▇▇ sells or otherwise disposes
of any of the Personal Shares, or in the event that any Partner makes any
payment to the Bank and/or ▇▇▇▇ on account of the Bank Note and/or the ▇▇▇▇
Note, such sale or disposition of the Personal Shares, or such payment, as the
case may be, shall be considered by the Partners as a loan from the Partner
whose Shares have been sold or disposed of (taking account of the provisions set
forth in paragraph (d) hereof), or from the Partner who made such payment, as
the case may be. Such loan shall be in the amount of the payment, or, if Shares
have been sold or disposed of, in the amount of the then fair market value of
the Shares, and shall in either case bear interest at the rate of ten percent
(10%) per annum.
(d) In the event that the Bank and/or ▇▇▇▇ sells or otherwise disposes
of any Shares, then regardless of the specific identification of the Shares that
have been sold or disposed of, the Partners shall consider the Shares to have
been sold in the following order of priority for purposes of liquidation of the
Partnership pursuant to Section 6.4 hereof: First, the ▇▇▇▇ Shares, Second, the
▇▇▇▇▇▇ Shares, and Third, the ▇▇▇▇▇ Shares and the ▇▇▇▇▇ Shares, pro rata in the
proportion of their respective Shares.
(e) In the event that the Bank and/or ▇▇▇▇ sells or otherwise disposes
of any Shares, all loans set forth in paragraphs (b) and (c) above shall
immediately be repaid in full. If such loans are not immediately repaid in full,
any Partner may immediately terminate the Partnership at his election.
3.6 Distributions. Unless the Partners otherwise agree in writing,
distributions, other than upon dissolution, from the profits and surplus of the
Partnership shall be made to each Partner at the discretion of the Partners. All
distributions shall be made as follows: First, to ▇▇▇▇▇ and ▇▇▇▇▇, in equal
proportions, an amount equal to the difference between (A) the aggregate amount
contributed by such Partners pursuant to clause "Third" of Section 3.4 and (B)
the aggregate amount that would have been contributed by such Partners pursuant
to clause "Third" of Section 3.4 if instead of such Partners contributing such
additional amounts on an equal basis, such Partners had contributed such
additional amounts in proportion to their Percentage Interests (such difference
hereinafter referred to as the "Excess Interest Return"). All remaining
distributions shall be made in proportion to each Partner's Percentage Interest
at the time of the declaration of such distribution. No Partner shall be
entitled to any distribution from the profits and surplus of the Partnership,
except as may be authorized by the Partnership.
3.7 Additional Contributions and Withdrawals. No Partner shall be
required to make any contribution to the capital of the Partnership other than
as provided in this Article 3. All capital contributions shall be applied in
furtherance of the Business of the Partnership. No Partner shall have the right
to withdraw from the Partnership or to demand a return of all or any part of its
capital contribution during the term of the Partnership. No interest shall
accrue for the benefit of, or to be paid to any Partner on, capital
contributions.
3.8 Payment of Fees and Expenses. Except as approved by the Partnership
or pursuant to any specific written agreement between a Partner (or its
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Affiliate) and the Partnership, no Partner shall be reimbursed for his overhead
or general or administrative expenses attributable to the Partnership, nor shall
salaries, fees, commissions or other compensations be paid by the Partnership to
any Partner or to any Affiliate of a Partner for services rendered to the
Partnership.
ARTICLE 4
BOOKS AND RECORDS; REPORTS; ALLOCATIONS; TAXES
4.1 Books. The Partnership shall maintain complete and accurate books
of account of the Partnership's affairs at the Partnership's principal office,
including a list of the names and addresses of the Partners and the Percentage
Interest of each Partner. The books of account for the Partnership shall be
maintained in a manner that provides sufficient assurance that:
(a) transactions of the Partnership are executed in accordance with the
general or specific authorization of the officers of the Partnership consistent
with the provisions of this Agreement;
(b) transactions of the Partnership are recorded in such form and
manner as will (i) permit preparation of federal, state, local and foreign
income tax returns and information returns of the Partnership in accordance with
this Agreement and as required by law, (ii) permit preparation of the
Partnership's financial statements in accordance with generally accepted
accounting principles in the United States, and (iii) maintain accountability
for Partnership's assets; and
(c) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken with
respect to any difference.
Each Partner, by or through its duly authorized employees, agents, accountants
or attorneys, may, at its own expense, audit, examine and make copies of or
extracts from the Partnership's books and records at reasonable times for any
purpose reasonably related to the Partner's interest in the Partnership, so long
as the same does not interfere in any material respect with the operation of the
Partnership.
4.2 Reports and Audits. The books of account shall be closed promptly
after the end of each fiscal year. Within ninety (90) days thereafter, a written
report shall be delivered to each Partner, which written report shall contain
such statements with respect to the status of the Partnership's operations and
transactions by the Partnership as are material to the Partnership and as are
considered necessary by the President to advise each Partner properly about his
investment in the Partnership.
4.3 Preparation of Tax Returns. The appropriate officers of the
Partnership shall cause federal, state, local and foreign income tax returns of
the Partnership to be prepared. As promptly as practicable after the end of each
fiscal year, the appropriate officers of the Partnership shall cause to be
prepared and delivered to each Partner a statement of such Partner's share of
the Partnership's taxable income or loss for the preceding fiscal year and all
other information necessary in preparing such Partner's federal, state, local
and foreign income tax returns with respect to the Partnership.
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4.4 Capital Accounts and Allocations. (a) A separate capital account (a
"Capital Account") shall be maintained on the Partnership's books for each
Partner. In the event any Interest is transferred in accordance with the terms
of this Agreement, the transferee shall succeed to the Capital Account of the
transferor to the extent it relates to the transferred Interest.
(b) Definitions. Unless the context requires otherwise, the following
terms have the meanings specified in this Section 4.4(b):
(1) Book Value: The Book Value with respect to any asset shall be
the asset's adjusted basis for federal income tax purposes, except
as follows:
(i) The initial Book Value of any asset contributed by a
Partner to the Partnership shall be the Fair Market Value of
such asset at the time of contribution, as determined by the
contributing Partner and the Partnership.
(ii) The Book Value of all Partnership assets shall be
revalued to equal their respective Fair Market Values and the
resulting unrecognized gain or loss allocated to the Capital
Accounts of the Partners in accordance with their relative
Percentage Interests (as determined immediately before such
revaluation) as of the following times:
(A) the acquisition of an additional Interest by any new
or existing Partner in exchange for a capital contribution;
(B) the distribution by the Partnership to a Partner of a
non-cash asset, unless all Partners receive simultaneous
distributions of either undivided interests in the distributed
property or identical Partnership assets in proportion to
their Percentage Interests; (C) the date the Partnership is
liquidated within the meaning of Treasury Regulation Section
1.704-1(b)(2)(ii)(g); and (D) the termination of the
Partnership pursuant to the provisions of this Agreement.
(iii) The Book Value of Partnership assets shall be
increased or decreased to the extent required under Treasury
Regulation Section 1.704-1(b)(2)(iv)(m) in the event that the
adjusted tax basis of Partnership assets are adjusted pursuant
to Sections 732, 734 or 743 of the Code.
(iv) The Book Value of Partnership assets shall be
adjusted by the depreciation, amortization or other cost
recovery deductions, if any, taken into account by the
Partnership with respect to such asset in computing Net Income
or Net Loss.
(2) Capital Account: The Capital Account of a Partner shall be
increased by:
(i) the Fair Market Value of assets contributed to the
Partnership (determined as of the date of contribution) by
such Partner;
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(ii) the amount of money contributed to the Partnership
by such Partner;
(iii) such Partner's share of Net Income (or items
thereof) allocated to its Capital Account pursuant to this
Agreement;
(iv) Partnership liabilities assumed by such Partner
or which are secured by any Partnership property distributed
to such Partner; and
(v) any other amounts required by Treasury Regulation
Section 1.704-1(b).
and shall be decreased by:
(i) the amount of money and the Fair Market Value of any
Partnership property distributed by the Partnership
(determined as of the date of distribution) to such Partner
pursuant to the provisions of this Agreement;
(ii) such Partner's share of Net Loss (or items thereof)
allocated to its Capital Account pursuant to this Agreement;
and
(iii) any other amounts required by Treasury Regulation
Section 1.704-1(b).
(3) Net Income and Net Loss: "Net Income" and "Net Loss" shall
mean the taxable income or loss of the Partnership for any relevant
period computed in accordance with federal income tax principles, as
adjusted pursuant to the following provisions:
(i) including as income any income that is exempt from
federal income tax and not otherwise taken into account in
computing Net Income or Net Loss pursuant to this Section 4.4;
(ii) including as a deduction any non-capital
expenditures described in Section 705(a)(2)(B) of the Code and
not otherwise taken into account in computing Net Income or
Net Loss pursuant to this Section 4.4;
(iii) including as a deduction when paid or incurred any
amounts utilized to organize the Partnership, except that
amount for which an election is properly made by the
Partnership under Section 709(b) of the Code shall be
accounted for as provided therein;
(iv) including as a deduction any losses incurred by the
Partnership in connection with the sale or exchange of
property, notwithstanding that such losses may be disallowed
to the Partnership for federal income tax purposes under the
related party rules of Code Sections 267(a)(1) or 707(b); and
(v) calculating the gain or loss on disposition of
Partnership assets and the depreciation, amortization or other
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cost recovery deductions, if any, with respect to Partnership
assets by reference in their Book Value rather than their
adjusted tax basis.
(c) Allocations.
(1) As of the end of each fiscal year of the Partnership, the
Net Income of the Partnership (and each item thereof) shall be
allocated as follows: First, to ▇▇▇▇▇ and ▇▇▇▇▇, in equal proportions,
an amount equal to the Excess Interest Return. Second, Net Income shall
be allocated to the Partners in accordance with their relative
Percentage Interests as of the end of each fiscal year of the
Partnership. The Net Loss of the Partnership (and each item thereof)
shall be allocated to the Partners in accordance with their relative
Percentage Interests.
(2) The allocation of each item of income, gain, loss,
deduction or credit earned, realized or available by or to the
Partnership, shall be allocated to the Partners for federal income tax
purposes as provided in Section 4.4(c)(1) hereof, except as otherwise
required by Section 704 of the Code in the reasonable determination of
the Tax Matters Partner; provided, however, that (i) income, gain, loss
and deduction with respect to property contributed by a Partner to the
Partnership shall be shared among the Partners so as to take account of
the variation between the tax basis of the property to the Partnership
and the Fair Market Value of the property at the time of contribution
to the extent and in the manner required by Section 704(c) of the Code
and (ii) if the assets of the Partnership shall be revalued to their
respective fair market valued in accordance with Section 4.4(b) hereof,
allocations of income, gain, loss and deduction for federal income tax
purposes shall be made in accordance with the principles of Section
704(c) of the Code between the Partners to take into account the
variation between the assets' adjusted tax basis and their Fair Market
Value as of the date of the revaluation in accordance with Treasury
Regulations Sections 1.704-1(b)(1)(i) and 1.704-1(b)(4)(iv).
(3) If there is a change in the Percentage Interest of a
Partner during a taxable period of the Partnership, the allocations set
forth in this Section 4.4(c) shall be made on the basis of an interim
closing of the books of the Partnership as of the close of business on
the day immediately preceding the effective date of such change.
Allocations shall be made for the portion of any period prior to the
change in Percentage Interest in accordance with the Percentage
Interest in effect prior to such change and, for the portion of the
period beginning on the date such change is effective, in accordance
with the Percentage Interest in effect after such change.
(4) Allocations pursuant to this Section 4.4 are not in any
way to be taken into account in computing distributions pursuant to any
provisions of this Agreement.
4.5 Tax Matters. (a) ▇▇▇▇▇▇ shall be the "Tax Matters Partner" of the
Partnership as such term is defined in Section 6231(a)(7) of the Code. The Tax
Matters Partner shall cause all federal, state and local tax returns of the
Partnership to be prepared for each taxable period for which such returns are
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required to be filed and shall cause such returns to be timely filed. The Tax
Matters Partner shall provide copies of all such returns to all Partners at a
reasonable time prior to the time of filing of such returns. The Tax Matters
Partner, at the direction of the Partnership, shall determine the accounting
methods and conventions under the tax laws of the United States, the several
states and other relevant jurisdictions as to the treatment of income, gain,
loss, deduction and credit of the Partnership or any other method or procedure
related to the preparation of such tax returns. The Tax Matters Partner, at the
direction of the Partnership, may cause the Partnership to make or refrain from
making any and all elections permitted by such tax laws (including, without
limitation, an election under Section 754 of the Code).
(b) Each Partner agrees that it shall not:
(i) treat, on its individual income tax returns, any
item of income, gain, loss, deduction, or credit relating to
its interest in the Partnership in a manner inconsistent with
the treatment of such item by the Partnership as reflected on
the Form K-1 or other information statement furnished by the
Partnership to such Partner for use in preparing its income
tax returns; or
(ii) file any claim for refund relating to any such item
based on, or which would result in, such inconsistent
treatment.
(c) In the event of an income tax audit of any tax return of the
Partnership, the filing of any amended return or claim for refund in connection
with any item of income, gain, loss, deduction or credit reflected on any tax
return of the Partnership, or any administrative or judicial proceedings arising
out of or in connection with any such audit, amended return, claim for refund or
denial of such claim:
(i) the Tax Matters Partner shall be authorized to act
for, and its decision shall be final and binding upon, the
Partnership and all Partners and
(ii) no other Partner shall have the right to
(A) participate in the audit of any Partnership tax
return,
(B) file any amended return or claim for refund in
connection with any item of income, gain, loss,
deduction, cost recovery deduction, depreciation or
credit reflected on any tax return of the Partnership,
(C) participate in any administrative or judicial
proceedings arising out or in connection with any such
audit, amended return, claim for refund or denial of
such claim,
(D) appeal, challenge or otherwise protest any
adverse findings in any such audit or with respect to
any such amended return or claim for refund in any such
administrative or judicial proceedings;
-10-
provided, however, that the Tax Matters Partner shall (i) provide reasonable
notice to all Partners concerning its intended actions and decisions in its
capacity as Tax Matters Partner (ii) provide the Partners with any information
reasonably requested by them relating to such actions or decisions and (iii) the
Partners shall have the right to consult with the Tax Matters Partner as to such
matters and approve such matters, provided that such approval shall not be
unreasonably withheld by any Partner.
(d) Prompt notice shall be given to the Partners upon receipt of advice
that the Internal Revenue Service or similar state or local authority intends to
examine Partnership income or other tax returns for any year.
(e) The Partners intend that the Partnership shall be treated as a
"partnership" for federal, state, local and foreign income tax purposes and
agree to take all reasonable actions, including the amendment of this Agreement
and the execution of other documents, as may be reasonably required to qualify
for and receive such treatment as a "partnership" for such income tax purposes.
(f) Each Partner agrees to indemnify and hold harmless the Partnership
and all other Partners from and against any and all liabilities, obligations,
damages, deficiencies and expenses resulting from any breach or violation by
such Partner of the provisions of this Section 435 and from all actions, suits,
proceedings, demands, assessments, judgments, costs and expenses, including
reasonable attorneys' fees and disbursements, incident to any such breach or
violation.
ARTICLE 5
TRANSFERS
5.1 Transfers. (a) None of the Partners may sell, assign, or otherwise
transfer or mortgage, hypothecate, or otherwise dispose of or encumber or permit
or suffer any encumbrance of all or any part of its Interest unless approved by
the other Partners in writing; provided, however, that notwithstanding the
foregoing, each Partner may transfer or sell all, but not less than all, of its
Interest to a Permitted Transferee. No such transfer shall constitute the
transferee a partner or entitle the transferee to any of the rights of a
partner, other than the right to receive as much of the transferor's share of
partnership distribution as is transferred to the transferee. Such a transfer
shall not terminate any of the transferor's obligations.
ARTICLE 6
TERM; DISSOLUTION
6.1 Term; Events of Dissolution. Unless otherwise agreed by all
Partners in writing, the Partnership will be dissolved, and, except as otherwise
provided herein, its business and affairs thereafter will be wound up and
terminated, upon the occurrence of any of the following events:
(a) Upon the written agreement of all Partners;
(b) On January 1, 2020;
-11-
(c) At the death of any two Partners;
(d) At the election of one Partner, if any of the following events
occurs with respect to the other Partners (an "Event of Default"):
(i) any Partner shall be adjudicated an insolvent (however
such insolvency may be evidenced) or bankrupt, or shall make a general
assignment for the benefit of creditors;
(ii) (a) any Partner shall file a petition in bankruptcy or
for any relieve under any law relating to the relief of debtors,
readjustment of indebtedness, reorganization, composition or extension,
or shall institute any proceeding under any such law; or (b) a petition
for any relief under any such law shall be filed against any Partner or
any proceeding under any such law shall be instituted against any
Partner and the same shall not have been discharged, vacated or stayed
within 60 days from the date of such filing or institution;
(iii) (a) any governmental authority or any court at the
instance thereof shall take possession of all or substantially all of
the property of, or assume control over the affairs or operations of,
any Partner; or (b) a receiver shall be appointed for all of or any
substantial part of the property of, or a writ or order or attachment
or garnishment shall be issued or made against all of, or substantially
all of the property of, any Partner and shall not have been discharged,
vacated or stayed within 60 days from the effective date thereof;
(iv) any Partner shall become subject to any final order of a
court of competent jurisdiction requiring such Partner to divest itself
of all or a portion of its Interest in the Partnership; or
(v) the making by any Partner of a general assignment for the
benefit of its creditors; or
(vi) the occurrence of an event set forth in Section 3.5(e)
above.
(e) At the election of one or both of the other Partners, in the event
a Defaulting Partner fails to make a capital contribution pursuant to Section
3.4 and one or both of the other Partners fail to lend the Partnership the
amount the Defaulting Partner failed to contribute; or
(f) Upon payment in full of both the ▇▇▇▇ Loan and the Bank Loan.
6.2 How Election Exercised. A Partner electing to dissolve the
Partnership pursuant to Section 6.1(d) or (e) shall give notice of such election
to the other Partners in writing and a copy thereof shall be sent to the
Partnership.
6.3 Winding-up. From the date of dissolution, the Partners shall
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promptly proceed to wind-up and liquidate the affairs and assets of the
Partnership.
6.4 Liquidation; Payments of Debts; Distributions. (a) In winding-up
the affairs of the Partnership, the assets of the Partnership shall be
liquidated and the proceeds applied in the following order:
(i) to payment of the expenses of the liquidation;
(ii) to payment (or other adequate provision for the
satisfaction) of the debts and liabilities of the Partnership,
including those owed to any of the Partners for goods, services,
advances, loans or otherwise (but not for return of any contribution by
the Partners or any interest thereof);
(iii) to the payment of any loans made by any Partner pursuant
to Section 3.5(c) hereof;
(iv) to ▇▇▇▇▇ and ▇▇▇▇▇, the amount of any unpaid Excess
Interest Return; and
(v) to divide the surplus, if any, between the Partners in
accordance with each Partner's Percentage Interest, provided that any
distribution in-kind shall be considered for the purposes of such
distribution to have been a disposition of such assets by the
Partnership at the Fair Market Value thereof and a distribution of such
proceeds to the Partner receiving such assets.
(b) The liquidation of the assets and discharge of liabilities shall
occur in an orderly manner so as to enable the Partners to reasonably maximize
the proceeds therefrom. In the event of such liquidation, each Partner shall
promptly pay to the Partnership any amounts owned to the Partnership, whether or
not then due and payable, together with its proportionate share of all
contributions required by law to be paid by the Partners for the payment, or
other provision for the satisfaction, of the debts and liabilities of the
Partnership.
(c) Upon liquidation of the assets of the Partnership, the ▇▇▇▇▇▇
Shares shall be returned to ▇▇▇▇▇▇, the ▇▇▇▇▇ Shares shall be returned to ▇▇▇▇▇,
and the ▇▇▇▇▇ Shares shall be returned to ▇▇▇▇▇ (after, in each instance, taking
account of the provisions set forth in paragraph 3.5(d) hereof), to the extent
not liquidated to pay debts of the Partnership.
(d) notwithstanding the provisions of paragraph (c) above, if upon
liquidation of the Partnership, (i) a loan or loans of the type set forth in
paragraph 3.5(c) hereof remains outstanding from ▇▇▇▇▇ and/or ▇▇▇▇▇, and (ii)
▇▇▇▇▇▇ would have had the ▇▇▇▇▇▇ Shares returned to him pursuant to paragraph
(c) above, then, in lieu of returning the ▇▇▇▇▇▇ Shares to ▇▇▇▇▇▇, the
Partnership may sell sufficient ▇▇▇▇▇▇ Shares so that the loan or loans to ▇▇▇▇▇
and/or ▇▇▇▇▇ shall be repaid in full, and the remaining ▇▇▇▇▇▇ Shares shall be
returned to ▇▇▇▇▇▇. Alternatively, at ▇▇▇▇▇ and/or ▇▇▇▇▇'▇ discretion, ▇▇▇▇▇▇
may borrow funds from ▇▇▇▇▇ and/or ▇▇▇▇▇ to pay the loan.
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(e) The Partners who are liquidating the assets of the Partnership
shall act in the best interests of the Partnership, as determined by such
Partners.
6.5 Final Accounting. If the Partnership is liquidated, each Partner
shall be furnished with a statement certified by the independent public
accountants of the Partnership, which shall set forth the assets and liabilities
of the Partnership and the Interest of each of the Partners as of the date of
the complete liquidation, taking into account distributions and payments as
provided in Section 6.4 hereof, the allocation of all gain or loss realized by
the Partnership on the liquidation of property and assets of the Partnership,
the allocation of any tax attributes, and any other matter not inconsistent with
this Agreement deemed appropriate by such accountants.
6.6 Costs and Expenses Under Certain Circumstances. In the event of a
dissolution or termination of the Partnership resulting from a breach by any
Partner of the provisions of this Agreement, the breaching Partner shall
indemnify and hold harmless the other Partners from and against any and all
costs and out-of-pocket expenses (including reasonable attorneys' fees)
reasonably incurred by the other Partner as a result of such dissolution.
6.7 Termination of Agreement. All of the provisions of this Agreement
shall remain in full force and effect until the dissolution, winding-up,
liquidation and termination of the Partnership.
ARTICLE 7
MANAGEMENT
7.1 Control of Business. Each Partner shall participate in the control,
management, and direction of the Partnership's business. In exercising this
control, management and direction, each Partner shall have one vote.
7.2 Vote of the Shares.
(a) In the election of members of the Board of Directors of the
Company, each Partner agrees that the Shares shall be voted for Czyzyk, Fagan,
and ▇▇▇▇▇, or as designated by Czyzyk, Fagan, and ▇▇▇▇▇, respectively. In the
event of the death or withdrawal of a Partner, the two remaining Partners shall
decide upon the third director for whom the Shares shall be voted.
(b) In all other matters with respect to the Company, each Partner
agrees that the Shares shall be voted as directed by a majority vote of the
Partners. In the event of the death or withdrawal of a Partner, the Shares shall
be voted as directed by the remaining Partners, acting unanimously.
7.3 Chairman. ▇▇▇▇▇ shall serve as Chairman of the Board of Directors
of the Company. The Partners agree to immediately enact a change to the By-Laws
of the Company to modify the position so that the Chairman of the Board shall be
a non-officer position. The duties and responsibilities of the Chairman shall be
determined by the Board of Directors of the Company.
7.4 Handling Funds. All partnership funds shall be deposited in
the Partnership's name and shall be subject to withdrawal only on the signatures
of at lease two Partners.
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7.5 Partners' Salaries. No Partner shall be entitled to any salary
from the Partnership.
ARTICLE 8
MATTERS REQUIRING SPECIAL VOTE OF THE PARTNERSHIP
8.1 Approval Required for Certain Actions. Notwithstanding any other
provision of this Agreement, without the approval of all partners, neither the
Partnership nor any Partner, officer, employee or agent thereof, acting for or
on behalf of the Partnership, may, directly or indirectly, take any of the
following actions:
(a) Except as set forth in Section 3.4, require any Partner to make
any capital contribution or investment in the Partnership.
(b) Sell, lease or otherwise dispose of any of the Shares, or all or a
substantial portion of the other assets of the Partnership; or enter into any
merger, business combination, partnership or joint venture agreement; or, except
for the Company, acquire a substantial equity interest in any other person; or
acquire or lease all or a substantial part of any other person's assets or
business.
(c) Except as security for the Bank Loan or the ▇▇▇▇ Loan, pledge,
mortgage, hypothecate or otherwise encumber all or a substantial portion of the
Shares, or any of the other Partnership's assets, tangible or intangible, and
whether as security for loans or otherwise.
(d) File on behalf of the Partnership a voluntary petition or an
application under the laws of the United States of America or any state thereof
seeking relief of debtors, reorganization, liquidation or dissolution.
(e) Amend this Agreement.
(f) Admit additional partners to the Partnership.
(g) Change the purpose for which the Partnership was formed or
change the Business of the Partnership in any material respect.
(h) Enter into any agreement, arrangement or understanding or engage
in any transaction with any Partner or any Affiliate of any Partner.
(i) Except to the extent permitted by Article 6 hereof, dissolve,
terminate, liquidate or wind-up the affairs of the Partnership.
-15-
ARTICLE 9
GENERAL PROVISIONS
9.1 Notices. Any notice or demand required or permitted to be given to
made to or upon any party hereto pursuant to any of the provisions of this
Agreement shall be deemed to have been duly given or made for all purposes if
(i) in writing and delivered by hand against receipt, or sent by certified or
registered mail, postage prepaid or return receipt requested or (ii) sent by
telegram, telecopy, telex or other electronic means and followed by a copy
delivered or sent in the manner provided in clause (i) above or by overnight
courier service, to such party of the following address:
(a) If to ▇▇▇▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Copy to: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(b) If to ▇▇▇▇▇: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(c) If to ▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or such other address as any party hereto may at any time, or from time to time,
direct by notice given to the other parties in accordance with this Section 9.1.
The date of giving or making of any such notice or demand shall be the earlier
of the date of acknowledged receipt, or, if receipt is not acknowledged, five
(5) business days after such notice or demand is sent, of, if sent in accordance
with clause (ii), the business day next following the day such notice or demand
is actually transmitted.
9.2 Further Assurances. All Partners agree to take all steps
necessary to implement the provisions of this Agreement.
9.3 Computation of Time. Any interval or period of time defined in
terms of a specified number of days preceding or succeeding a particular even
shall be determined without including in such interval or period the date on
which such event occurs; and the number of days in any interval or period
defined as that between two fixed or determinable dates shall not include the
date on which such interval or period commences, but shall include the date on
which such interval or period terminates.
9.4 Limitation of Authority. Except to the extent and in the manner
provided herein, this Agreement is not intended, and shall not be deemed, to
create any partnership, joint venture or joint enterprise or association among
the parties hereto, or to authorize or to empower any party hereto to act on
behalf of, obligate or bind any other party hereto.
-16-
9.5 Fees and Expenses. Each of the parties hereto shall bear such fees
and expenses as may be incurred by it in connection with the negotiation and
preparation of this Agreement.
9.6 Amendment. Except as otherwise provided herein, no amendment of
this Agreement shall be valid or effective, unless in writing and signed by or
on behalf of the parties hereto.
9.7 Waiver. No course of dealing or omission or delay on the part of
any party hereto in asserting or exercising any right hereunder shall constitute
or operate as a waiver of any such right. No waiver of any provision hereof
shall be effective, unless in writing and signed by or on behalf of the party to
be charged therewith. No waiver shall be deemed a continuing waiver or waiver in
respect of any other or subsequent breach or default, unless expressly so stated
in writing.
9.8 Governing Law. This Agreement shall be governed by, and interpreted
and enforced in accordance with, the laws of the State of California, without
giving effect to the principles, policies or provisions relating to choice or
conflict of laws. To the extent the provisions of this Agreement are
inconsistent with the Uniform Partnership Act of the State of Illinois, the
provisions of this Agreement shall apply.
9.9 Remedies. The parties hereto acknowledge and agree that, in the
event of an actual or prospective breach or default by any party hereto, the
other parties may not have an adequate remedy at law. Accordingly, in the event
of any such actual or prospective breach or default by any party, the other
parties shall be entitled to such equitable relief, including remedies in the
nature of injunction and specific performance, as may be available to restrain
any person from causing or participating in any such actual or prospective
breach or default. All remedies hereunder are cumulative and not exclusive, and
nothing herein shall be deemed to prohibit or limit any party from pursuing any
other remedy or relief available at law or in equity for such actual or
prospective breach or default, including the recovery of damages.
9.10 Severability. The parties hereto intend that each provision hereof
constitute a separate agreement between them. Accordingly, the provisions hereof
are severable and in the event that any provision of this Agreement shall be
deemed invalid or unenforceable in any respect by a court of competent
jurisdiction, the remaining provisions hereof shall not be affected, but shall,
subject to the discretion of such court, remain in full force and effect, and
any invalid or unenforceable provision shall be deemed, without further action
on the part of the parties hereto, amended and limited to the extent necessary
to render the same valid and enforceable.
9.11 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and which together shall constitute one and
the same instrument.
9.12 Further Assurances; Duty of Good Faith. Each party hereto
covenants and agrees promptly to execute, deliver, file or record such
agreements, instruments, certificates and other documents and to do and perform
such other and further acts and things as any other party hereto, the Board or
an authorized officer of the Partnership may reasonably request or as may
-17-
otherwise be required by law or be necessary or proper to consummate and perfect
the transactions contemplated hereby. Each Partner further covenants and agrees
to act in good faith and in a manner it reasonably believes to be in the best
interests of the Partnership.
9.13 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
9.14 Assignment. Without the prior written consent of each other party
hereto, and except as otherwise provided herein, no party hereto may sell,
assign, transfer, mortgage, hypothecate or otherwise dispose of or encumber or
permit or suffer any encumbrance of any right, interest or obligation hereunder,
and any purported sale, assignment, transfer, mortgage, hypothecation or other
disposal of or encumbrance of any right, interest or obligation hereunder
without such consent shall be void and without effect.
9.15 No Third Party Beneficiaries. Nothing in this Agreement, express
or implied, is intended to confer upon any other person any rights or remedies
under or by reason of this Agreement except as expressly set forth herein.
9.16 Titles and Captions. The titles and captions of the Articles and
Sections of this Agreement are for convenience of reference only and do not in
any way define or interpret the intent of the parties or modify or otherwise
affect any of the provisions hereof.
9.17 Grammatical Conventions. Whenever the context so requires, each
pronoun or verb used herein shall be construed in the singular or the plural
sense, and each pronoun used herein shall be construed in the masculine,
feminine or neuter sense.
9.18 References. The terms "herein", "hereto", "hereof", "hereby", and
"hereunder" and other terms of similar import, refer to this Agreement as a
whole, and not to any Article, Section or other part hereof.
9.19 Incorporation by Reference. The annexes and schedules hereto
constitute an integral part of this Agreement, an the information disclosed, or
terms and conditions provided therein are fully incorporated by reference
herein.
9.20 Arbitration. Any dispute between the Partners, including the
interpretation or application of any provision of this Agreement shall be
submitted to binding arbitration in San Francisco, California in accordance with
the rules of the American Arbitration Association.
9.21 Waiver of Partition. Each Partner hereby irrevocably waives,
during the term of the Partnership, any right that it may have to maintain any
action for partition with respect to any Partnership property.
9.22 Entire Agreement. This Agreement embodies the entire agreement
of the parties hereto with respect to the subject matter hereof and supersedes
any prior agreement, commitment or arrangement relating thereto.
-18-
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, as of the date first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
-------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
PROMISSORY NOTE
$3,422,340 July 27, 2000
FOR VALUE RECEIVED, FK Partners, an Illinois general partnership,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (collectively,
"Maker"), hereby jointly and severally promise to pay to the order of ▇▇▇▇▇▇▇
▇▇▇▇ ("Lender"), in the manner provided hereinafter, the principal sum of three
million, four hundred twenty-two thousand, three hundred forty dollars
($3,422,340), with interest thereon, as follows:
Maker hereby agrees to pay to the Lender the principal amount of this
promissory note ("Note") with interest thereon at the rate of eight
percent (8%) per annum (except as otherwise set forth herein) at such
address as is set forth in the provisions of this Note, such principal
and interest to be paid by maker as hereinafter set forth.
From the date hereof until July 26, 2001, simple interest shall accrue
on the principal amount of this Note at the interest rate set forth above, and
such accrued interest shall be added to the principal amount of this Note on
such date. Beginning on October 27, 2001, and continuing on the 27th day of each
January, April, July, and October thereafter until and including April 27, 2003,
Maker shall pay all accrued interest on the principal balance of this Note
(including in such principal balance the accrued interest from July 27, 2000 to
July 27, 2001, which will have been added to the principal balance). On July 27,
2003, all unpaid accrued interest and the principal balance of this NOTE shall
be due and payment shall be made to Lender.
All payments received on account of the indebtedness evidenced by this
Note shall be first applied to accrued interest due on the outstanding principal
balance, with the remainder, if any, to be applied to the outstanding principal
balance.
All payments made on account of the indebtedness evidenced by this Note
shall be made in United States dollars and are to be paid to Lender at ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such place as
the Lender may from time to time designate in writing.
Maker's failure to make any payment of interest or principal when due
in accordance with the terms hereof together with such failure continuing for a
period of ten (10) days after written notice form Lender is given to maker shall
be defined to be a "Default." In such event, the "Default Date" shall be defined
to be the initial due date of such principal or interest payment which has not
been made and not the ten (10) day cure date period provided for in the notice
to Maker. From and after the Default Date, interest shall accrue on the
principal sum and interest subject to the Default at a rate equal to twelve
percent (12%) per annum until paid ("Default Rate").
1
Under no circumstances shall the undersigned be charged more than the
highest rate of interest which lawfully may be charged by the holder hereof and
paid by the undersigned on the indebtedness evidenced hereby. It is therefore
agreed that if at any time interest on the indebtedness evidenced hereby would
otherwise exceed the highest lawful rate, only such highest lawful rate will be
paid by the undersigned. Should any amount be paid by the undersigned in excess
of the highest lawful amount, such excess shall be deemed to have been paid in
reduction of the principal balance hereof.
The undersigned, and all persons liable or to become liable on this
Note, agree, jointly and severally, to pay all costs of collection, including
reasonable attorneys' fees and disbursements, in case the unpaid principal
balance of this Note, or any payment of interest thereon is not paid when due,
whether a law suit be brought or not.
The undersigned hereby authorizes, irrevocably, any attorney of any
court of record to appear for the undersigned in such court, at any time after
default in the payment of any interest or of any principal balance hereof, and
confess judgment without process in favor of the Lender for the principal
balance and unpaid interest thereon, together with court costs and reasonable
attorney's fees, and the undersigned waive and release all errors which may
intervene in any such proceedings, and consent to immediate execution upon such
judgment, hereby ratifying and confirming all that said attorney may do by
virtue hereof.
Lender shall not be any omission or act be deemed to waive any of its
rights or remedies hereunder unless such waiver be in writing and signed by
Lender, and then only to the extent specifically set forth therein. A waiver in
connection with one event shall not be construed as continuing or as a bar to or
waiver of any right or remedy in connection with the same, a similar, or a
subsequent event.
Time is of the essence with regard to the payment of principal and
interest thereon of this Note.
The undersigned hereby waive presentment for payment, demand, protest,
notice of protest and notice of dishonor of this Note. This Note and al other
documents relating thereto shall be governed by and construed in accordance with
the Laws of the State of New York. Any action or proceeding in connection with
this Note and any other relating documents thereto shall only be brought in a
court of record of the State of New York, County of New York, or in the United
States District court for the Southern District of New York, the parties hereby
consenting to the jurisdiction thereof, and service of process may be made upon
any party by mailing a copy of the summons to such party by United States Post
Office, certified mail return receipt requested or by Federal Express at the
address as set forth herein. In any action or proceeding relating to this
Agreement, and/or any other documents, the parties mutually waive trial by jury
and the parties waive any claim that New York County or the Southern District of
New York is an inconvenient forum.
2
If any provision in this Note is found by a court of law to be in
violation of any applicable law, and if such court should declare such provision
of this Note to be unlawful, void or unenforceable as written, then it is the
intent of all parties hereto that such provision shall be given full force and
effect to the fullest possible extent that it is legal, valid and enforceable,
that the remainder of this Note shall be construed as if such unlawful, void or
unenforceable provisions were not contained therein, and that the rights,
obligations and interests of Maker and the Lender under the terms of this Note
shall continue in full force and effect.
Any notice, demand or other communication which any party may desire or
may be required to be given to any other party shall be in writing, and shall be
deemed given if and when personally delivered, or if mailed, on the second
business day after being deposited in the United States mail, registered or
certified, postage prepaid, addressed to a party at the address set forth below,
or to such other address as the party to receive such notice may have designated
to all other parties by notice in accordance herewith:
If to Lender: ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
If to Maker: FK Partners
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
This Note is binding upon the undersigned and undersigned's executors,
administrators, successors and assigns.
This Note cannot be modified or changed except by written instrument
signed by all of the parties hereto.
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IN WITNESS WHEREOF, Maker has duly executed this Note as of the day and
year first above written.
FK Partners
By:
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Its: Chairman of the Board
------------------------------------------
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, M.D.
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▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
STATE OF CALIFORNIA )
) ss:
COUNTY OF )
On this ___ day of July, 2000, before me personally came ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ to me known and known to me to be the individual described in and who
executed the foregoing instrument.
-----------------------------------
NOTARY PUBLIC
4
