FINANCIAL ACCOMMODATIONS AGREEMENT
This Financial Accommodations Agreement (this "Agreement") is made and
entered into in Chicago, Illinois, as of October l8, 2000 (the "Effective
Date"), by and among IFL Acquisition Co., LLC ("IFL Acq."), a Delaware limited
liability company, af2 Enterprises, LLC ("af2 Enterprises"), a Delaware limited
liability company and Orlando Predators Entertainment, Inc. ("OPE"), a Florida
corporation.
RECITALS
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A. IFL Acq. is a wholly owned subsidiary of af2 Enterprises.
B. On Effective Date, IFL Acq. executed and delivered to Keary Ecklund and
Tammy Ecklund (individually and collectively referred to as the "Ecklunds"), The
Indoor Football League, Inc. ("IFL"), Green Bay Bombers, Inc. ("Green Bay")
Madison Mad Dogs, Inc. ("Madison"), Dayton Football, Inc. ("Dayton"), Flint
Football, Inc. ("Flint"), Wichita Football, Inc. ("Wichita"), Johnstown
Football, Inc. ("Johnstown"), Peoria Football, Inc. ("Peoria"), Sioux Falls
Football, Inc. ("Sioux Falls"), Fargo Football, Inc. ("Fargo"), LaCrosse
Football, Inc. ("LaCrosse"), Duluth Football, Inc. ("Duluth"), Erie Football,
Inc. ("Erie"), Sioux City Football, Inc. ("Sioux City"), Wheeling Football, Inc.
(Wheeling"), Bismark Football, Inc. ("Bismark"), Rapid City Football, Inc.
("Rapid City"), Billings Football, Inc. ("Billings"), Mankato Football, Inc.
("Mankato"), and Casper Football, Inc. ("Casper") (the Ecklunds, IFL, Green Bay,
Madison, Dayton, Flint, Wichita, Johnstown, Peoria, Sioux Falls, Fargo,
LaCrosse, Duluth, Erie, Sioux City, Wheeling, Bismark, Rapid City, Billings,
Mankato, and Casper individually and collectively referred to as the "Seller") a
certain Asset Purchase and Sale Agreement (the "Asset Purchase Agreement") to
purchase certain of the assets of the Seller.
C. As an obligation of IFL Acq. under the Asset Purchase Agreement, IFL
Acq. agreed to deliver to Seller on the Effective Date the following as payment
of the purchase price: (i) $1 million in immediately available funds (a portion
of which is to be held back by IFL Acq.); (ii) $100,000 in immediately
available funds to be paid directly to the Ecklunds; (iii) a three (3) year
promissory note of OPE made payable to IFL Acq. (and endorsed by IFL Acq. and
tendered to Seller) in the amount of $1.75 million with a 6% annual interest
rate commencing one (1) year from the date of Closing and secured by a first
lien on the proceeds owed to OPE from Arena Football League, LLC ("AFL") under a
certain Nth Purchase Agreement, dated May 27, 1998 as amended by that certain
Settlement Agreement and Mutual Release dated April 19, 2000 and (iv) 214,286
shares of Class A common stock in OPE issued to IFL Acq. (and assigned by IFL
Acq. to the Ecklunds) which may be redeemed (at the request of the Ecklunds) at
a price per share of $3.50 during a period of six (6) months commencing 18
months from the date of Closing.
D. As an inducement for IFL Acq. to execute and deliver the Asset Purchase
Agreement, OPE and af2 Enterprises will agree to bound by the terms and
conditions of this Agreement.
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In consideration of the premises, the mutual covenants and agreements of
the parties set forth in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by
the parties, the parties agree as follows:
1. Deliveries of OPE. Subject to the terms and conditions of this
Agreement, OPE agrees to deliver to IFL Acq. on the date of Closing the
following:
(i) $1 million, net of any credit to OPE for all sponsorship and
ticket sales income and revenues (which credit shall be net of one half of the
standard ticket handling fee) from the operations of Peoria in immediately
available funds ($626,335 to be wired transferred to Seller and $147,500 to be
wired transferred to IFL Acq.);
(ii) $100,000 in immediately available funds to be wired directly to
the Ecklunds;
(iii) a Promissory Note in the amount of $1.75 million in the form as
set forth in Exhibit "A"; and
(iv) 214,286 shares of Class A common stock in OPE issued to IFL Acq.
(with endorsement separate from certificate).
2. Deliveries of IFL Acq. Subject to the terms and conditions of this
Agreement, IFL Acq. agrees to deliver to OPE on the date of Closing the
following:
(i) all of IFL Acq.'s right, title and interest in and to all of the
tangible personal property used in Seller's operation of the professional minor
league of indoor football teams known as the "Indoor Football League",
including, but not limited to, those assets identified on the Property List
attached as Exhibit "A" to the Asset Purchase Agreement and conveyed to IFL Acq.
by the Seller excluding (i) any "Excluded Assets" as that term is defined in
Section 1.2 of the Asset Purchase Agreement (the "Transferred Assets") and (ii)
any intellectual property; such Transferred Assets shall be physically delivered
to OPE within 30 days of the Effective Date.
(ii) all rights, title and interest to any warranties related to the
Transferred Assets; all as listed on Schedule 2(ii) attached to this Agreement;
(iii) a "Quit Claim" Bill of Sale in the form as set forth in Exhibit
"B" attached to this Agreement;
(iv) an Acknowledgement (to be signed by the Seller) in the form as
set forth in Exhibit "J" to the Asset Purchase Agreement; and
(v) a Covenant to Pay Expansion Fees Agreement as set forth in Exhibit
"C" attached to this Agreement.
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3. af2 Teams for OPE. Subject to the terms and conditions of a definitive
"Operators Agreement" with respect to each team operation, af2 Enterprises shall
grant OPE three (3) af2 team memberships in the following territories: (i)
Peoria, Illinois; (ii) Billings, Montana and (iii) in a football territory (to
be selected by OPE within 30 days from the Effective Date) from the territories
as set forth on Exhibit I attached to the Asset Purchase Agreement (the
"Territory"). During the 30 days period, should af2 receive an offer to purchase
an af2 team membership in the Territory, af2 shall inform OPE in writing of such
offer and OPE has 72 hours from the date of such notice to select that
membership in that Territory; otherwise af2 shall have the right to accept that
offer. OPE and af2 Enterprises covenant and agree to each use commercially
reasonable efforts to execute the Operators Agreements as soon as reasonably
practical but in no event later than 30 days following the Effective Date. In
each Operators Agreement, af2 Enterprises shall grant to OPE a revocable license
to use all intellectual property, if any, purchased by IFL Acq. (and
subsequently conveyed, transferred and assigned to af2 Enterprises) associated
with that team operation. Additionally, af2 Enterprises shall convey to OPE the
ticket holder lists, mailing lists, sponsor lists and sales and marketing
records and literature associated with that team operation. In consideration of
the team memberships, OPE shall pay (a) a $50,000 membership fee for the first
team signed under an Operators Agreement with a $10,000 application processing
fee; (b) a $5,000 application processing fee for the second team signed under an
Operators Agreement without any membership fee; and (c) a $5,000 application
processing fee for the second team signed under an Operators Agreement without
any membership fee.
Subject to the terms and conditions of a definitive "Operators Agreement"
with respect to each team operation, af2 Enterprises shall grant, at no cost to
OPE, a revocable license to use any and all intellectual property acquired by
IFL Acq. from Seller (and subsequently acquired from IFL Acq.) with regard to
the three af2 teams operated by OPE. OPE acknowledges that af2 Enterprises may
license to any third party any and all other intellectual property acquired by
IFL Acq. from Seller (and subsequently acquired from IFL Acq.). To the extent
that af2 Enterprises licenses such other intellectual property to a third party
within 24 months of the Effective Date, af2 Enterprises shall pay $10,000 to
OPE.
All fields used by OPE for the three af2 teams may be examined, from time
to time, by af2 Enterprises. af2 Enterprises, in its reasonable discretion, may
demand and require that any such fields be replaced. Notwithstanding the
previous two statements, ORE shall, within five (5) years from the Effective
Date, replace its "initial" fields of its three af2 teams.
4. Conditions Precedent. The obligations of the parties to consummate the
transactions contemplated by this Agreement are subject to the Asset Purchase
Agreement being fully executed and delivered by IFL Acq. and the Seller.
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5. No Representations, Conditions and Warranties. OPE is receiving the
Transferred Assets from IFL Acq. in an "as is", "where as" condition. IFL ACQ
MAKES NO REPRESENTATION, CONDITION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED,
AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER MATTER
RELATING TO THE TRANSFERRED ASSETS.
6. Communications. Any and all notices, requests, agreements, waivers,
directions, demands or any other communications required or desired to be given
in connection with this Agreement, will be given in writing and will be deemed
effective upon delivery, which is the day after said notice has been sent via a
nationally-recognized overnight delivery service or on the third day after
mailing if sent by registered or certified mail, postage prepaid, return receipt
requested; if mailed, such notice will be addressed to the parties as follows:
(a) If to IFL Acq. then to: (b) If to af2 Enterprises, then to:
c/o af2 Enterprises, LLC 75 East Wacker Drive
75 East Wacker Drive 10th Floor
10th Floor Chicago, IL 60601
Chicago, IL 60601 Attention:
Attention: Ronald J. Kurpiers 11, Esq.
Ronald J. Kurpiers II, Esq.
(c) If to OPE:
741 Front Street, Suite 140
Celebration, Florida 34747
Attention: Jeff Bouchy, Vice President
or to such other person, entity or address as may be designated by any of the
parties in like manner.
7. Indemnification. OPE shall indemnify, defend and hold harmless IFL Acq.,
af2 Enterprises, AFL LLC, af2 LLC, af2 Operating LLC, any af2 and AFL Member
Clubs, and each of their respective subsidiaries, partners, stockholders,
members, franchises, directors, officers, attorneys, agents and employees,
(each, a(n) "Indemnified Person(s)") against, any and all debts, obligations and
other liabilities (whether absolute, accrued, contingent, fixed or otherwise, or
whether known or unknown, or due or to become due or otherwise), monetary
damages, fines, fees, penalties, interest obligations, deficiencies, diminutions
in value of assets, losses and expenses (including without limitation amounts
paid in settlement, interest at the rate of 18% per annum or the highest rate
permitted by law from the date of any payments made by an Indemnified Person,
court costs, costs of investigators, fees and expenses of attorneys,
accountants, financial advisors and other experts, and other expenses of
litigation) ("Damages") incurred or suffered by an Indemnified Person or any
Affiliate thereof resulting from, relating to, constituting or arising out of
any claim relating to any advanced ticket sales income associated with the 2001
season of Peoria Football, Inc. and Billings Football, Inc.
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8. Confidentiality. IFL Acq., af2 Enterprises and OPE must maintain any and
all terms and conditions of this Agreement in the strictest of confidence and
shall not under any circumstances disclose any such terms and conditions to any
third party unless (i) all of the parties to this Agreement expressly consent in
writing (ii) required to do so by order of court of competent jurisdiction and
only after the non-disclosing party(ies) has been given adequate notice with an
opportunity to respond to such court order or (iii) required to do so by the
federal and state securities laws and regulations. Neither party shall issue a
press release related to these transactions contemplated by this Agreement
without the prior written consent of the other party; which consent shall not be
unreasonably withheld or delayed.
9. Commission Payment. From time to time, OPE may request the assistance of
IFL Acq. to locate potential purchasers for the Transferred Assets. OPE shall
pay IFL Acq. a 15% commission for any sale of Transferred Assets made to any
purchaser referred to OPE by IFL Acq. All commission payments shall be made upon
receipt of the sale proceeds.
10. Financial Books and Records. Upon request of the OPE, IFL Acq. shall
provide for auditing and other financial purposes all of its financial books and
records to Buyer, including those relating to Seller.
11. Construction of this Agreement. The following miscellaneous provisions
shall govern this Agreement.
(a) This Agreement will be interpreted, construed and governed by and
in accordance with the laws and decisions of the State of Illinois as applied to
agreements entered into and to be fully performed in the State of Illinois.
(b) This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous communications, agreements and assurances, whether
verbal or written.
(c) This Agreement will not be changed, modified, discharged or
terminated, except by a writing signed by IFL Acq., af2 Enterprises and OPE.
(d) This Agreement will be binding upon, inure to the benefit of and
will be enforceable by IFL Acq., and its members, managers, directors, officers,
successors and assignees, af2 Enterprises, and its members, managers, directors,
officers, successors and assignees, and by OPE, and its shareholders, directors,
officers, successors and assignees.
(e) The numbers, headings, titles or designations of the various
sections and subsections are not a part of this Agreement, but are for
convenience of reference only, and do not and will not be used to define, limit
or construe the contents of the sections and subsections.
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(f) The Exhibits and Schedules attached to and referred to in this
Agreement are, by this reference, incorporated herein and made a part hereof The
recitals appearing at the beginning of this Agreement are hereby incorporated
into the terms and conditions of this Agreement in full by this reference.
(g) If any provision contained in this Agreement is held to be invalid
or unenforceable by a court of competent jurisdiction, such provision will be
severed from this Agreement and such invalidity or unenforceability will not
affect any other provision of this Agreement, the balance of which will remain
in and have its intended full force and effect; provided, however, if such
invalid or unenforceable provision may be modified so as to be valid and
enforceable as a matter of law, such provision will be deemed to have been
modified so as to be valid and enforceable to the maximum extent permitted by
law.
(h) All disputes arising out of this Agreement shall be subject to the
exclusive jurisdiction and venue of the United States District Court for the
Northern District of Illinois or the Illinois state courts located in Cook
County, Illinois, and the parties hereto consent to the personal jurisdiction
and venue of those courts.
(i) This Agreement may be executed in multiple counterparts; each such
executed counterpart will be considered an original and no other counterpart
need be produced for any purpose.
IN WITNESS WHEREOF, IFL Acq., af2 Enterprises and OPE have executed
this Agreement as of the date first set forth above.
IFL ACQUISITION CO., LLC
By: /s/ Ronald J. Kurpiers
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Ronald J. Kurpiers, President
AF2 ENTERPRISES, LLC
By: /s/ Ronald J. Kurpiers
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Ronald J. Kurpiers, President
ORLANDO PREDATORS ENTERTAINMENT, INC.
By: /s/ Jeffrey L. Bouchy
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Jeffrey L. Bouchy
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