Exhibit 10.30
Blackhawk LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
May 26, 2000
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ divine interVentures, inc.
divine interVentures, inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. Ste. 3410
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: Blackhawk LLC (hereinafter referred to as the "Company")
Gentlepersons:
The Company owns property located at and commonly known as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (hereinafter referred to as the "Property"). By
letter dated July 1, 1999 (hereinafter referred to as the "Letter Agreement"):
(i) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (hereinafter referred to as "Flip") agreed to purchase
three percent (3%) of the membership interests in the Company and the Company
was granted a right to require Flip to acquire, and in the event the Company did
not exercise such right, Flip had the option to acquire, an additional thirty
and thirty-three hundredths percent (30.33%) of the membership interests in the
Company (said rights being hereinafter referred to in the Letter Agreement and
herein as the "Company Option" and the "Purchase Option," respectively), and
(ii) divine interVentures, inc. (hereinafter referred to as "divine") was
granted an option to lease, or under certain circumstances, to purchase, the
Property, in accord with the terms therein described.
Pursuant to that certain Letter Agreement dated January __, 2000
(hereinafter referred to as the "Indemnity"), divine and Flip acknowledged that,
although divine had not exercised the option to lease contained in the Letter
Agreement, divine and Flip requested that the Company proceed with the
rehabilitation and development of the improvements located on the Property, and,
in order to induce the Company to so proceed and incur various expenses, both
Flip and divine, jointly and severally, indemnified the Company for certain
costs as therein set forth.
Pursuant to that certain Letter Agreement dated February 28, 2000
(hereinafter referred to as the "Extension Letter"), the Company, Flip and
divine agreed to extend the time in which divine may exercise the option to
lease or purchase the Property through a period ending March 31, 2000 and to
modify the Indemnity to increase the limitation on the joint and several
liability of Flip and divine to the Company (said amount as so increased is
referred to as the "Indemnified Amount") and to provide that the Indemnified
Amount would be paid within five (5) days of request therefor by the Company.
The Letter Agreement, the Indemnity, and the Extension Letter, as same are
amended hereby, are hereinafter collectively referred to as the
"divineAgreement".
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The members of the Company entered into the Blackhawk LLC Amended and
Restated Operating Agreement dated as of November 15, 1999 (hereinafter referred
to as the "Operating Agreement") which provided for the initial sale to Flip of
three percent (3%) of the membership interests in the Company (hereinafter
referred to as the "Initial Interest") by the original members of the Company
and the subsequent sale to Flip of thirty and thirty-three hundredths percent
(30.33%) of the membership interests in the Company (hereinafter referred to as
the "Additional Interest") by the original members of the Company.
Pursuant to that certain Membership Interest Purchase Agreement dated as of
November 15, 1999 by and among ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (hereinafter referred to as
"▇▇▇▇▇"), individually and as agent for the other original members of the
Company, and Flip (hereinafter referred to as the "Initial Membership Purchase
Agreement") and pursuant to that certain Assignment and Acceptance of Membership
Interests dated February 11, 2000 by and among ▇▇▇▇▇, individually and as agent
for the other original members in the Company, and Flip, Flip acquired the
Initial Interest in the Company from the original members of the Company in
exchange for the sum of Thirty Eight Thousand Eight Hundred Fifty Dollars and No
Cents ($38,850.00).
Pursuant to that certain letter dated March 29, 2000 from divine to Flip
and the Company, whereby divine validly exercised its option to purchase the
Property ("divineOption") pursuant to paragraph 10 of the Letter Agreement and
deposited with the Company ▇▇▇▇▇▇▇ money in the amount of Six Hundred Thousand
Dollars and No Cents ($600,000.00), as required pursuant to the Letter Agreement
and thus divine was required to consummate such purchase on or before April 28,
2000. divine has not purchased the Property and has failed to perform under the
divineOption and the Letter Agreement.
By letter dated April 28, 2000 to Flip from the Company, the Company
validly exercised the Company Option and thus, Flip was required to purchase the
Additional Interest on May 8, 2000 for a purchase price of One Million Two
Hundred Fifty Thousand Six Hundred Fifty Three Dollars and No Cents
($1,250,653.00.). Flip has not purchased the Additional Interest and has thus
failed to perform under the Company Option and the Letter Agreement.
Flip, divine and the Company acknowledge and agree that the forgoing
statements are true and correct and, in consideration of same and of the
agreements hereinafter set forth, the parties hereto have agreed to amend the
divineAgreement as follows:
1. Purchase of Property. The Company and divine agree that paragraph 10 of
the Letter Agreement is deleted, and the purchase of the Property by divine
shall be upon the following terms and conditions:
(i) The Company will sell to divine interVentures, inc., or its nominee,
and divine interVentures, inc., or its nominee, shall purchase the
Property in its absolute "as-is" condition as of the date hereof,
ordinary wear and tear, acts of divine and of any party acting on
behalf of divine and casualty excluded, but not subject to any waste
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hereafter committed by the Company, for a purchase price (hereinafter
referred to as the "Price") of Nine Million Seven Hundred Fifty
Thousand Dollars and No Cents ($9,750,000.00) plus the amount of
Reimbursable Costs (as defined below). "Reimbursable Costs" include
and are limited to all costs expended by the Company on or after July
1, 1999 and prior to the date that the purchase of the Property by
divine interVentures, inc., or its nominee, is consummated (said date
is hereinafter referred to as the "Property Closing Date") excluding
any Reimbursable Costs which have been reimbursed to the Company by
divine interVentures, inc. or an affiliate of divine interVentures,
inc. prior to the Property Closing Date. The parties hereto hereby
acknowledge and agree that as of June 30, 2000 Reimbursable Costs are
One Million Sixty Two Thousand Three Hundred Thirty Six Dollars and
No Cents ($1,062,336.00).
(ii) The parties hereto acknowledge that divine interVentures, inc. has
heretofore paid the Company the Fee in the amount of Four Hundred
Fifty Thousand Dollars and No Cents ($450,000.00), and agrees, upon
execution hereof, to pay to the Company the additional sum of One
Hundred Fifty Thousand Dollars and No Cents ($150,000.00) which sum,
together with the Fee, is hereinafter referred to as the "Total Fee".
The Total Fee is earned by the Company upon payment thereof and shall
not be a credit to the Price or otherwise be refundable to the
Company for any reason whatsoever.
(iii) divine interVentures, inc., or its nominee, shall consummate the
purchase of the Property on or before 5:00 p.m., Chicago time on June
30, 2000 (hereinafter referred to as the "Last Date"), the parties
hereto agreeing that time shall be of the essence hereof.
Notwithstanding the forgoing, divine interVentures, inc. may extend
the Last Date to a date which is the earlier to occur of: (1) July
31, 2000; or (2) fifteen (15) days after divine interVentures, inc.
commences an IPO (hereinafter defined) upon written notice to the
Company accompanied by an extension fee in the sum of Fifty Thousand
Dollars and No Cents ($50,000.00) which shall be received by the
Company on or before June 28, 2000, which extension fee shall be
deemed earned by the Company upon payment thereof and shall not be a
credit to the Price or otherwise be refundable to the Company.
(iv) At the consummation of the purchase and sale of the Property, the
Company and ▇▇▇▇▇▇ Construction, Ltd. (hereinafter referred to as
"▇▇▇▇▇▇") shall convey and assign to divine interVentures, inc. (with
warranties of title, but without any other warranty or
representation) all personal property and contract rights held by
such parties in connection with the Property and its improvement and
rehabilitation, as set forth on Exhibit "A" attached hereto and by
this reference incorporated herein. Real estate taxes and other
expenses of the Property will be prorated as of July 1, 1999, and the
Company shall provide divine interVentures, inc. with a policy of
title insurance in the same form, and subject to the same exceptions,
other than the lien of the mortgage to LaSalle National Bank, as the
Company held with respect to the
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Property as of November 15, 1999, except for acts of divine
interVentures, inc. and any party acting by or through divine
interVentures, inc. and except for liens due to non-payment by divine
of any portion of the Indemnified Amount. Notwithstanding anything
contained herein to the contrary and provided that divine
interVentures, inc. shall have paid or reimbursed the Company for the
Indemnified Amount, the Company shall provide all necessary lien
waivers and contractor statements to the title company so that no
liens or exceptions for new construction appear on the aforesaid
owner's title policy as of the Property Closing Date. All costs of
sale shall be allocated pursuant to local custom.
2. Indemnified Amount. The parties hereto hereby acknowledge and agree that
the Indemnified Amount is Two Million Four Hundred Twenty Four Thousand Three
Hundred Eight Dollars and No Cents ($2,424,308.00). Concurrently with the
execution hereof divine and Flip shall pay to ▇▇▇▇▇▇ Construction, Ltd. the sum
of One Million Six Hundred Twenty One Thousand Six Hundred Seven Dollars and
Fifty Eight Cents ($1,621,607.58) of the Indemnified Amount, and divine and Flip
shall pay ▇▇▇▇▇▇ Construction, Ltd. the balance thereof on the earlier to occur
of: (i) July 15, 2000 and (ii) the Property Closing Date. The obligations of
divine and Flip under this paragraph 2 are joint and several.
3. Commission. Flip, divine and the Company acknowledge that Colliers,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Inc. (hereinafter referred to as "CBK") acted as the sole
broker in connection with the transactions herein contemplated and each party
will pay (and indemnify the other party against claims for) any and all fees and
commissions of any other brokers based on dealings with such brokers by the
indemnifying party. divine shall pay a commission to CBK in the amount of
$646,258.00, all of which shall be paid on the Property Closing Date.
4. Development Fee. Flip, divine and the Company acknowledge that CBK and
Smithfield Properties, LLC have provided certain development services to Flip
and divine in connection with the Property on or prior to the date hereof. In
connection therewith: (i) in the event that divine does not consummate the
purchase of the Property on the Last Date and has not, on or before such date
sold a portion of its stock on a public exchange ("IPO"), divine shall pay to
Smithfield Properties, LLC and CBK, jointly, a development fee in the amount of
$200,000.00 on the Last Date; (ii) in the event that divine does not consummate
the purchase of the Property on the Last Date and has, on or before such date
commenced an IPO, divine shall pay to Smithfield Properties, LLC and CBK ,
jointly, a development fee in the amount of $400,000.00 on the Last Date; and
(iii) in the event that divine consummates the purchase of the Property divine
shall pay to Smithfield Properties, LLC and CBK , jointly, a development fee in
the amount of $400,000.00 concurrently with such purchase.
5. Amendment. The parties hereto agree to execute the First Amendment to
Amended and Restated Operating Agreement to so amend the Amended and Restated
Operating Agreement of the Company in the form attached hereto as Exhibit "B"
and incorporated herein by reference.
6. Company Option. The Company and Flip agree that the Company Option is
reinstated, and
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Flip shall purchase the Additional Interest concurrently upon execution hereof.
To effectuate such purchase, Flip and the Company shall execute and deliver
counterparts of the Assignment and Acceptance of Membership Interests attached
hereto as Exhibit "C" and by this reference incorporated herein.
7. Indemnity. Pursuant to the Letter Agreement Flip shall, concurrently upon
execution hereof, execute and deliver the Indemnity in the form attached hereto
as Exhibit "D" and by this reference incorporated herein.
8. Inspection. The Company hereby grants to divine, its agents, employees,
and contractors, permission to enter upon the Property for the sole purpose of
making a physical inspection thereof and performing studies and tests thereon,
at divine's sole expense subject to the following:
(a) divine shall notify the Company in writing of any proposed
testing, boring sampling, or any other inspection procedures and request the
Company's consent thereto. In the event that the Company objects to the
inspection procedures proposed by divine, divine shall revise such procedures as
required in order to obtain the Company's approval thereof. In the event that
the Company does not object to the inspection procedures within three (3) days
after receipt of written notice from divine, the Company shall be deemed to have
agreed to the inspection procedures. divine shall schedule the inspection
procedures so that the Company's representative may observe such inspections.
(b) divine shall conduct such inspections at reasonable times of the
day.
(c) divine shall restore the Property to substantially the same
condition existing prior to the commencement of its inspections.
(d) divine shall provide the Company with copies of any and all data,
results, conclusions, and reports generated as a result of or during divine's
inspections.
(e) Notwithstanding anything herein contained to the contrary, divine
acknowledges that for the purposes of the divineAgreement the Company has not
made any representations or warranties to divine and divine shall examine and
investigate to the full satisfaction of divine the Property and divine has not
and shall not rely upon any information or statement provided to divine by the
Company or any agent, attorney, employee, or representative of the Company.
(f) divine does hereby agree to indemnify, defend and hold the
Company harmless from any and all damage to property or injury or death to
persons, and from any and all claims, actions, or liabilities arising out of
divine's inspection, including without limitation reasonable attorneys' fees.
(g) Prior to entering upon the Property, divine shall, at its sole
cost and expense,
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procure and keep in force and effect during the entire term of the
divineAgreement, as modified hereby a comprehensive general liability insurance
policy, including insurance against assumed or contractual liability under the
divineAgreement, with respect to all of divine's activities in, on or about the
Property. The limits of such policy with respect to personal liability and
property damage shall be not less than $3,000,000.00 combined single limit. The
Company shall be listed as an additional named insured on such policy and a copy
of such policy or an ▇▇▇▇▇ form 27 certificate shall be delivered to the Company
prior to divine's entry on the Property. The insurer under such policy shall
agree not to cancel, materially change or fail to renew the coverage provided by
such policy, without first giving the Company thirty (30) business days' advance
written notice.
(h) The Company does not assume any risk, liability, or responsibility
or duty of care as to divine, its employees, agents, or contractors when on the
Property to conduct it physical inspection. divine acknowledges and agrees that
divine, its employees, agents, or contractors enter the Property and conduct
their investigation thereon at their own risk.
(i) divine acknowledges that notwithstanding any investigation or
inspection, divine shall purchase the Property in its "as-is" condition as of
the date hereof, ordinary wear and tear, acts of divine and of any party acting
on behalf of divine and casualty excluded, but not subject to any waste
hereafter committed by the Company.
9. Exhibits. Exhibits A, B, C and D attached hereto are incorporated herein
by this reference.
10. Interest. All amounts payable by Flip or divine hereunder shall bear
interest from the date due until the date paid at an annual rate of interest
equal to twelve percent (12%) per annum.
11. All Agreements. To the extent of any conflict between the terms of this
letter agreement and the terms of the divineAgreement, the terms of this letter
agreement shall govern and control and as so amended hereby the divineAgreement
shall is in full force and effect.
12. Acceptance. Kindly execute the enclosed copy of this letter to evidence
your agreement hereto.
Very truly yours,
Blackhawk LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
____________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Manager
By: /s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
____________________________
▇. ▇▇▇▇▇▇ ▇▇▇▇▇, Manager
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By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
____________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Manager
The undersigned hereby agree to the foregoing as of the day and year first above
written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
__________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, individually
divine interVentures, inc.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_____________________________
Title: Executive V.P. & CFO
_____________________________
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EXHIBIT A
---------
PERSONAL PROPERTY AND CONTRACT RIGHTS
-------------------------------------
All personal property located on the Property owned by the Company and all
contract rights owned by the Company relating to the Property.
EXHIBIT A PAGE 1 OF 1
EXHIBIT B
BLACKHAWK LLC
FIRST AMENDMENT TO AMENDED AND RESTATED OPERATING AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED OPERATING AGREEMENT is made
and entered into as of the 26th day of May, 2000 by and between the Persons
identified in the signature section hereof.
W I T N E S S E T H:
WHEREAS, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as the Organizer, filed Articles of
Organization for Blackhawk LLC (hereinafter referred to as the "Company") with
the Secretary of State of Illinois on October 14, 1998.; and
WHEREAS, the Members of Blackhawk LLC did enter into that certain Operating
Agreement of Blackhawk LLC dated the 1st day of January, 1999, but effective as
of the 14th day of October, 1998 which was amended By Amended and Restated
Operating Agreement made and entered into as of the 15/th/ day of November, 1999
( said Operating Agreement as so amended and restated is hereinafter referred to
as the "Operating Agreement"); and
WHEREAS, the Operating Agreement provides that same can be amended by
Members owing an Approval Interest (as such terms are therein defined) and the
Persons identified in the signature section hereof now constitute Members of the
Company who hold an Approval Interest, and such Persons desire to further amend
the Operating Agreement.
W I T N E S S E T H:
NOW, THEREFORE, the parties hereto incorporate the forgoing recitals into
this First Amendment to Amended and Restated Operating Agreement, acknowledge
and agree that they hold an Approval Interest in the Company and agree that the
Operating Agreement shall be amended as follows, it being understood that all
terms defined in the Operating Agreement shall carry the same definitions when
used herein:
EXHIBIT B - PAGE 1 OF 3
1. Section 5.2. Section 5.2 of the Operating Agreement shall be amended
to provide that Managers need not be Members of the Company.
2. Article I. Paragraphs (m), (n) and (ab) of Article I of the Operating
Agreement are hereby deleted and replaced with the following paragraphs (m), (n)
and (ab).
(m) "Flip Agreement" shall mean: (i) that certain letter
agreement dated July 1, 1999 attached hereto as Exhibit "B" and by
this reference incorporated herein (hereinafter referred to as the
"Letter Agreement") ; (ii) that certain Letter Agreement dated January
__, 2000, (hereinafter referred to as the "Indemnity") whereby dvi, as
hereinafter defined, and Flip, as hereinafter defined, acknowledged
that, although divine had not exercised the option to lease contained
in the Letter Agreement, divine and Flip requested that the Company
proceed with the rehabilitation and development of the improvements
located on the Property, and, in order to induce the Company to so
proceed and incur various expenses, both Flip and dvi, jointly and
severally, indemnified the Company for certain costs as therein set
forth; (iii) that certain Letter Agreement dated February 28, 2000
between the Company, Flip and dvi which extended the time in which
divine may exercise the option to lease or purchase the Property
through a period ending March 31, 2000 and to modify the Indemnity to
increase the limitation on the joint and several liability of Flip and
dvi to the Company and to provide a time for payment thereof; (iv)
that certain letter dated March 29, 2000 from dvi to Flip and the
Company, whereby dvi validly exercised its option to purchase the
Property; and (v) that certain letter dated April 28, 2000 to Flip
from the Company, whereby the Company validly exercised the an option
requiring Flip to consummate the Total Flip Purchase on May 8, 2000
for a purchase price of One Million Two Hundred Fifty Thousand Six
Hundred Fifty Three Dollars and No Cents ($1,250,653.00).
(n) "Initial Flip Purchase" shall mean the purchase of a three
percent (3%) Membership Interest in the Company by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
pursuant to Paragraph 1 of the Letter Agreement.
(ab) "Total Flip" Purchase shall mean the purchase of a Thirty
and Thirty-Three One-Hundredths Percent (30.33%) Membership Interest
in the Company by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ pursuant to Paragraph 9 of the
Letter Agreement.
3. Section 9.4. Section 9.4(b)(2) of the Operating Agreement is hereby
deleted in its entirety.
4. Ratification. Except as modified herein, the terms, conditions and
covenants of the Operating Agreement shall remain unchanged and otherwise in
full force and effect, and are
EXHIBIT B - PAGE 2 OF 3
hereby ratified and affirmed. All prior acts of the Company are hereby ratified
and confirmed.
5. Binding Effect. Except as modified herein, the terms, conditions and
covenants of the Operating Agreement shall remain in full force and effect. The
paragraph headings herein contained are for convenience and shall not be deemed
to govern or control the substance hereof.
6. Governing Law. This Agreement shall be governed and construed under
the laws of the State of Illinois.
IN WITNESS WHEREOF, this First Amendment to Amended and Restated Operating
Agreement is executed as of the day and year set forth above.
The Pooba Trust
By:________________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, trustee
___________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
___________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
EXHIBIT B - PAGE 3 OF 3
EXHIBIT C
---------
ASSIGNMENT AND ACCEPTANCE OF MEMBERSHIP INTERESTS
-------------------------------------------------
This Assignment and Acceptance of Membership Interests (this "Assignment")
is dated as of the ___ day of May, 2000, by and among ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
individually and as agent for the other "Current Owners" (hereinafter defined),
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ("Flip").
Recitals:
--------
WHEREAS, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, T. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, J. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Investment Associates, The Pooba Trust, The Clown Trust, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (referred to herein individually as an "Original
Owner" and collectively as the "Original Owners") are members of a limited
liability company organized under the laws of the State of Illinois and known as
Blackhawk LLC, an Illinois limited liability company ("Company"), pursuant to a
certain Amended and Restated Operating Agreement dated as of November 15, 1999
(as amended and restated, the "Operating Agreement"); and
WHEREAS, the Original Owners conveyed to Flip three percent (3%) of the
membership interests in the Company pursuant to an Assignment and Acceptance of
Membership Interests dated February 11, 2000; and
WHEREAS, pursuant to that certain Letter Agreement ("Letter") by and
between the Company, Flip, and ▇▇▇▇▇▇ interVentures, inc. dated July 1, 1999,
the Company was granted the option (the "Option") to require Flip to purchase
and accept, thirty and thirty-three hundredths percent (30.33%) of the
membership interests in the Company, contributed pro rata by each Original Owner
(the "Additional Transferred Interest") such that following said transfer Flip
will own thirty-three and thirty-three hundredths percent (33.33%); and
WHEREAS, by letter dated April 28, 2000 the Company exercised the Option;
and
WHEREAS, pursuant to Paragraph 10.3 of the Operating Agreement, the
Original Owners authorize ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ to act as the agent of the
Original Owners to take all action necessary to sell and convey to Flip the
Additional Transferred Interest.
NOT THEREFORE, for and in consideration of the sum of One Million Two
Hundred Fifty
EXHIBIT C - PAGE 1 OF 3
Thousand Six Hundred Fifty Three Dollars and No Cents ($1,250,653.00), in hand
paid, and other good and valuable consideration, the receipt, adequacy and
sufficiency of which is hereby acknowledged, Original Owners and Flip agree as
follows:
1. Assignment. Original Owners hereby transfer to Flip the Additional
Transferred Interest, without warranty or representation, except as expressly
provided in this Assignment. The Assignment is effect as of the date hereof.
2. Acceptance and Assumption. Flip hereby accepts the Additional
Transferred Interest and assumes all of Original Owners' obligations under the
Operating Agreement, to the extent applicable to the Additional Transferred
Interest and to the extent arising on or after the date hereof.
3. Representations. The Original Owners, jointly and severally, as
applicable, represent to Flip as of the date hereof as follows:
(a) Company is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Illinois, and is authorized
to exercise its limited liability company power and authority to own, lease,
sell or otherwise develop the property commonly referred to as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and to carry on its business as now conducted. The
Company is duly qualified to do business and is in good standing in Illinois.
(b) The capital of the company consists of one hundred percent (100%) of
the Membership Interests, all of which Membership Interests are outstanding.
All such Membership Interests are fully paid. Except as set forth in the
Letter, there are no authorized or outstanding options, rights, preemptive
rights, agreements, contracts, commitments, or any other rights or claims of any
character obligating the Company to issue, transfer, or redeem any Membership
Interests.
4. Membership Interests. Upon the execution of this Assignment, the
Membership Interests of the Members shall be as set forth on Exhibit A attached
hereto and made a part hereof by this reference.
5. Definitions. Initially capitalized terms not separately defined
herein shall have the meanings ascribed to them in the Operating Agreement.
6. Effective Date. The acceptance and assumption under this Assignment
is effective as of the date hereof.
[execution page follows]
EXHIBIT C - PAGE 2 OF 3
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of
the date first above written.
ORIGINAL OWNERS:
___________________________________ _____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, individually ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
and as agent for the other Original
Owners
EXHIBIT C - PAGE 3 OF 3
EXHIBIT A
---------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 17.3435%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1.3333%
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 1.1733%
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 7.1500%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ .6667%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1.0000%
T. ▇▇▇▇▇▇ ▇▇▇▇▇▇ .6667%
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ .3333%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ .3333%
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇ .3333%
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ .3333%
▇▇▇▇▇ ▇. ▇▇▇▇▇ 1.0000%
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ .3333%
▇▇▇▇▇ ▇▇▇▇▇ .6667%
▇▇▇▇ ▇. ▇▇▇▇▇▇ .▇▇▇▇%
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Investment Associates .3333%
The Pooba Trust 22.9867%
The Clown Trust 3.4467%
▇▇▇▇▇▇ ▇▇▇▇▇ 2.3000%
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2.3000%
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2.3000%
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ 33.3333%
---------
100.0000%
EXHIBIT D
---------
INDEMNITY AGREEMENT
-------------------
THIS INDEMNITY AGREEMENT (hereinafter referred to as the "Indemnity")
is dated this 26th day of May, 2000, by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ (hereinafter
referred to as "Flip") to and for the benefit of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
(hereinafter referred to as "▇▇▇▇▇") and ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred
to as "▇▇▇▇"), in light of the following:
A. Flip, divine interVentures, Inc. (hereinafter referred to as "divine")
and Blackhawk LLC (hereinafter referred to as the "Company") have entered into a
certain letter agreement (hereinafter referred to as the "May Agreement") which
incorporates certain agreements relating to the Company and the Property as
defined in the May Agreement; initially capitalized terms not defined herein
shall have the meanings ascribed to such terms in the May Agreement; and
B. The Company has entered into a Construction Loan Agreement with LaSalle
National Bank, as lender (hereinafter referred to as "Bank") dated April 22,
1999 to provide the Company Eleven Million Three Hundred Thousand Dollars and No
Cents ($11,300,000.00) of financing (hereinafter referred to as the "Loan"),
copies of which have been provide to Flip (hereinafter referred to as the "Loan
Docs"), which Loan Docs include: (i) a Limited Guaranty, (ii) a Guaranty of
Completion, and (iii) an Environmental Indemnity Agreement (hereinafter
collectively referred to as the "Guarantys") whereby ▇▇▇▇▇ and ▇▇▇▇ have,
jointly and severally, made various guarantees, indemnities and representations
to the Bank in connection with the Loan; and
C. The Company has entered into a Construction Loan Agreement with LaSalle
National Bank, as lender, (hereinafter referred to as "Bank") dated April 22,
1999 to provide the Company Eleven Million Three Hundred Thousand Dollars and No
Cents ($11,300,000.00) of financing, (hereinafter referred to as the "Loan")
along with various documents to evidence and secure the Loan, copies of which
have been provided to Flip (hereinafter referred to as the "Loan Docs"), which
Loan Docs include: (i) a Limited Guaranty, (ii) a Guaranty of Completion, and
(iii) an Environmental Indemnity Agreement (hereinafter collectively referred to
as the "Guarantys") whereby ▇▇▇▇▇ and ▇▇▇▇ have, jointly and severally made
various guarantees, indemnities and representations to the Bank in connection
with the Loan; and
NOW THEREFORE for and inconsideration of the forgoing recitals which are by
this reference incorporated herein, and, in pursuance of the Letter Agreement
which requires Flip to provide this Indemnity, Flip covenants and agrees as
follows:
1. Liability. Flip hereby acknowledges and agrees that it is possible
that, from time to time, either or both of ▇▇▇▇▇ or ▇▇▇▇ may incur liability
under the Guarantys (hereinafter referred to as "Liability").
EXHIBIT D - PAGE 1 OF 2
2. Indemnity. Flip hereby agrees to indemnify, defend and hold harmless
▇▇▇▇▇ and ▇▇▇▇ against any Liability and the costs of defense and attorneys fees
(hereinafter referred to as the "Costs") of, and actual liability, if any,
incurred by either or both of ▇▇▇▇▇ or ▇▇▇▇ in connection with a Liability or
asserted Liability to provide the same liability to Flip, ▇▇▇▇▇ and ▇▇▇▇ as if
Flip, ▇▇▇▇▇ and ▇▇▇▇ had executed the Guaranty concurrently on a joint and
several basis. All payments made pursuant to such rights of contribution shall
be made on a current basis, as and when such Costs or Liability are incurred and
paid by either or both of ▇▇▇▇▇ or ▇▇▇▇. Nothing herein contained shall be
deemed to limit any rights of ▇▇▇▇, ▇▇▇▇▇ or Flip under section 6.7 of the
Amended and Restated Operating Agreement of the Company, as same may be amended,
to the extent that Bill, David, Flip or any of them incur Liability.
3. Payments. In the event that Flip breaches his obligations hereunder,
the amount required to have been paid shall, following ten (10) days after
written demand therefor by ▇▇▇▇▇ or ▇▇▇▇, bear interest at a rate of three (3%)
percent over the Bank's "Reference Rate" as defined in the Loan Docs.
4. Governing Law. This Indemnity and the obligations of the Individuals
hereunder shall be interpreted, construed and enforced in accordance with the
laws of the State of Illinois.
5. Successors and Assigns. This Indemnity shall inure to the benefit of
the parties, their beneficiaries, successors, permitted assigns and legal
representatives, and shall be binding upon such parties and/or entities. Except
as expressly set forth in the preceding sentence, this Indemnity establishes
rights and obligations only as between and among the parties hereto, and shall
not be construed in any manner as granting rights or benefits to any party not a
party to this Indemnity.
6. Non-Assignability. This Indemnity may not be assigned by any party
hereto, without, in each such instance, the written consent of all other parties
hereto.
7. Counterparts. This Indemnity may be executed in one (1) or more
counterparts, each of which shall be an original and all of which together shall
constitute one (1) and the same instrument.
IN WITNESS WHEREOF, this Indemnity is effective as of the date first
above written.
FLIP: ____________________
---- ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
EXHIBIT D - PAGE 2 OF 2
