# Profoundd archive — Epstein Files
# Bates number: EFTA01092870
# Title:        IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
# Dataset:      9
# Pages:        86
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=== SUMMARY ===
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION MERCATA JUSTA, ) 2O1OLO 1O797 ) CALENDAR/ROOM W Plaintiff, ) TIME OO:OO v. ) Case No. Brear of Contract DEAN KRETSCHMAR, ) ea '71 - ) Jury Demanded Defendant. ) <i=1.5 COMPLAINT -0 0 _—Plaintiff Mercata Justa, L.L.C. ("Plaintiff), by and through its lifiderriged:couAsei, complains of Defendant Dean Kretschmar ("Kretsclunar" or "Defendant") as follows: NATURE OF THIS ACTION 1. This is an action for breach of contract ba


=== EXTRACTED TEXT ===
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS 
COUNTY DEPARTMENT, LAW DIVISION 
MERCATA JUSTA, ) 2O1OLO 1O797 
) CALENDAR/ROOM W 
Plaintiff, ) TIME OO:OO 
v. ) Case No.  Brear of Contract 
DEAN KRETSCHMAR, ) ea '71 
- ) Jury Demanded 
Defendant. ) <i=1.5 
COMPLAINT  -0 0 
_—Plaintiff Mercata Justa, L.L.C. ("Plaintiff), by and through its lifiderriged:couAsei, 
complains of Defendant Dean Kretschmar ("Kretsclunar" or "Defendant") as follows: 
NATURE OF THIS ACTION 
1. This is an action for breach of contract bated on a Loan Agreement (the "Loan 
Agreement," Ex. A hereto) created on October 22, 2009 in Cook County, Illinois by and between 
Plaintiff as lender, Mercata Justa Partners, L.L.C. as borrower (the "Borrower"), and Defendant 
as guarantor, and to enforce certain obligations of Defendant in relation thereto. Pursuant to the 
Loan Agreement, Plaintiff made a loan of $4,500,000 (the "Term Loan") to Borrower. In 
connection therewith, Borrower executed, and Defendant in his individual capacity 
acknowledged, a Term Note in favor of Plaintiff (the "Term Note," Ex. B hereto). Also on 
October 22, 2009, Defendant executed a Guaranty Agreement (the "Guaranty Agreement," Ex. C 
hereto) pursuant to which he agreed, as primary obligor, to absolutely, unconditionally, 
irrevocably and continually guarantee the full, prompt, faithful payment when due of any and all 
debts, obligations, and liabilities of Borrower to Plaintiff, whether arising under the Loan 
Agreement, the Term Note, or otherwise. In furtherance of Defendant's obligations under the 
Loan Agreement and Guaranty, on October 22, 2009 Defendant also entered into a Security 
Agreement (the "Security Agreement," Ex. D hereto) in favor of Plaintiff pursuant to which 
DB1/64798376.3 
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Defendant agreed to secure his obligations to Plaintiff with all of his assets. Finally, in partial 
fulfillment of his obligations under the Security Agreement, Defendant executed a second 
mortgage (the "Mortgage," Ex. E hereto) (the Guaranty Agreement, Security Agreement, and 
Mortgage will be collectively referred to as the "Financing Agreements") on his personal 
residence in favor of Plaintiff Plaintiff brings this action because Borrower has breached its 
duties under the Loan Agreement and the Security Agreements and Defendant has failed or 
otherwise refused to honor his obligations under the Financing Agreements. 
THE PARTIES 
2. Plaintiff Mercata Justa, L.L.C. is a Delaware limited liability company. 
3. Defendant Dean Kretschmar is an individual and resident of the State of Florida. 
4. Borrower Mercata Justa Partners, L.L.C. is a Delaware limited liability company. 
JURISDICTION AND VENUE 
5. This Court has jurisdiction over this matter pursuant to 735 ILCS 5/2-209(a)(1) & 
(7) in that Defendant transacted business within Illinois and entered into the Financing 
Agreements in Illinois. Pursuant to the Loan Agreement, Defendant also agreed that any and all 
disputes regarding the Loan Agreement would be resolved in Cook County, Illinois. 
6. Venue is proper pursuant to 735 ILCS 5/2-101 in that the transaction(s), or some 
part thereof, out of which this cause of action arose, took place or is taking place within this 
County. 
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RELEVANT FACTS 
Creation of the Financing Agreements 
7. On October 22, 2009, Plaintiff, Defendant and Borrower entered into the Loan 
Agreement wherein Borrower agreed to borrow, and Defendant agreed to serve as Guarantor in 
respect of, the Term Loan of $4,500,000 being made by Plaintiff. 
8. On October 22, 2009, Borrower executed, and Defendant in his individual 
capacity acknowledged, a Term Note in favor of Plaintiff. 
9. On October 22, 2009, Defendant, in his individual capacity, executed a Guaranty 
Agreement pursuant to which he agreed as primary obligor to absolutely, unconditionally, 
irrevocably and continually guarantee the full, prompt, faithful payment when due of any and all 
debts, obligations, and liabilities of Borrower to Plaintiff, whether arising under the Loan 
Agreement, the Term Note, or otherwise. 
10. On October 22, 2009, Defendant entered into the Security Agreement in favor of 
Plaintiff pursuant to which Defendant agreed to secure his, obligations under the Financing 
Agreements with all of his assets. 
11. Finally, in partial fulfillment of his obligations under the Security Agreement, on 
October 22, 2009, Defendant executed a second Mortgage on his personal residence in favor of 
Plaintiff. 
Terms of the Financing Agreements 
12. Pursuant to the Loan Agreement, Plaintiff lent Borrower the Term Loan of 
$4,500,000. 
13. The Term Loan was due to be repaid in March 2010 — the "Term Maturity Date" 
as defined by the Loan Agreement. See Loan Agreement at pp. 1, 23. 
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14. The Loan Agreement provides that the Borrower "shall pay interest on the unpaid 
principal amount of the Term Loan at the rate of 20% per annum (the "Applicable Rate"), from 
the date on which the Term Loan is made until paid in full" and further provides that "[u]pon the 
occurrence of an `Event of Default' and during the continuance thereof, interest shall accrue on 
all Liabilities at the per annum rate of five (5) percentage points in excess of the Applicable Rate. 
Any interest payment, charge, or fee not paid when due shall be added to and become a part of 
the Liabilities." See Loan Agreement at pp. 1-2. 
15. The Loan Agreement provides a list of "Event(s) of Default," (See Loan 
Agreement at pp. 10-12) and pursuant to Section 7.2, that the occurrence of any Event of Default 
entitles Plaintiff to "declare the Note and Liabilities to be due and payable, whereupon the Notes 
and all Liabilities shall become immediately due and payable, all without presentment, demand, 
protest or notice of any kind." See Loan Agreement at p. 12. 
16. Section 7.1(a) of the Loan Agreement provides that it shall constitute an "Event of 
Default" if the "Borrower or [Defendant] shall fail to perform any of the Liabilities requiring the 
payment of money when the payment is due (whether by scheduled maturity, required 
prepayment, acceleration, demand or otherwise) and such failure shall not be cured within five 
(5) Business Days of the applicable due date." See Loan Agreement at p. 10. 
17. Section 6.2 of the Loan Agreement provides that the "Borrower and the 
[Defendant] covenant and agree to deliver the documents set forth on Schedule 6.2 to 
[Plaintiff]... within five days after the Closing Date" of October 22, 2009. Section 6.2 further 
provides that "ffit..ilure to deliver such documents within that time period shall constitute an 
Event of Default." See Loan Agreement at p. 10. 
18. Section 7.1(e) of the Loan Agreement provides that it shall constitute an Event of 
DBI/64798376.3 4 
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Default if "[a]ny representation or warrant now or hereafter made by the Borrower or the 
[Defendant] in or in connection with this Agreement or any of the Financing Agreements... is 
untrue or incorrect in any material respect when made, or any schedule, certificate, statement, 
report, financial statement, notice, or other writing furnished at any time by the Borrower or the 
[Defendant] to the [Plaintiff] is untrue or incorrect in any material respect on the date as of which 
the facts are stated or certified; or any representation, warranty, schedule, certificate, statement, 
report, financial statement, notice or other writing furnished at any time by the Borrower to the 
Lender omits to state or include a material fact necessary to make the statement or the writing 
not misleading." See Loan Agreement at p. 11. 
19. Section 2 of the Guaranty Agreement provides that in an Event of Default under 
the Loan Agreement, Defendant shall pay and perform all of the obligations guaranteed 
thereunder, including the full and prompt payment and performance of the obligations of 
Borrower. See Guaranty Agreement at p. 2. 
Defendant's Breaches of the Financing Agreements 
20. To thte, the Term Note, which was due in March 2010, has not been paid. 
21. To date, despite the obligations placed on Defendant by Section 6.2 of the Loan 
Agreement, Defendant has not delivered to Plaintiff the documents set forth on Schedule 6.2, 
including but not limited to evidence satisfactory to Plaintiff that Bank of America consented to 
the grant and recordation of the Mortgage used as security for the Term Loan, despite the fact 
that the Loan Agreement required said documents to be delivered within five days of closing. 
22. Defendant provided Plaintiff with false, material representations concerning his 
ownership interest in at least two assets put forth as security for the Term Loan, in violation of 
Section 7.1(e) of the Loan Agreement. 
DBI/64798376 3 5 
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23. First, Defendant materially represented the value of his personal residence. 
24. Second, Defendant represented that he owned a certain account with the Royal 
Bank of Canada (the "RBC Account") and, separately, that he owned a certain vessel which was 
likewise to be used as security for the Loan Agreement. 
25. Defendant in fact does not have the interest in the vessel as represented nor does 
he have a personal interest in the RBC account as represented. 
COUNT I 
Breach of Contract 
26. Plaintiff repeats and incorporates by reference the allegations contained in 
Paragraphs 1 through 25 above as though fully set forth herein, and further alleges as follows: 
27. On October 22, 2009, Plaintiff, Defendant, and Borrower entered into a valid and 
enforceable contract in Illinois. 
28. Plaintiff fully performed its obligations pursuant to the Loan Agreement when it 
made a Term Loan of $4,500,000 to Borrower on October 22, 2009. 
29. Despite Plaintiff's performance, the Loan Agreement is presently in Default. 
30. No payments have been made by Borrower or Defendant to Plaintiff in 
accordance with the terms of the Loan Agreement. 
31. Defendants has failed or otherwise refused to honor his obligations under the 
Loan Agreement or the Financing Agreements. 
32. Despite Plaintiff's full performance of its obligations under the Loan Agreement, 
Defendant breached Section(s) 6.2, 7.1(a), and 7.1(e) of the Loan Agreement, among others, and 
has refused to honor his obligations under the Financing Agreements. 
33. As a direct and proximate cause of Defendant's breaches of the Loan Agreement 
and the Financing Agreements, Plaintiff has suffered, and is entitled to recover, direct, indirect, 
DBI/647983763 6 
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consequential and incidental damages, including, but not limited to, the amount of the Term 
Loan plus interest as provided by the terms of the Loan Agreement. 
WHEREFORE, Plaintiff respectfully prays that this Court: 
1. Award Plaintiff its actual damages sustained as a result of Defendant's breach of 
the Loan Agreement; 
2. Award Plaintiff its costs and expenses, including, but not limited to, its attorneys' 
fees in bringing and pursuing this action; 
3. Award Plaintiff pre-judgment and post judgment interest; and 
• 4. Award Plaintiff any other and further relief to which it is entitled. 
Dated: September 21, 2010 
Respectfully Submitted, 
Mercata Justa, L.L.C. 
By: One of Its Attorneys 
Kevin B. Dreher (ARDC No. 6277398) 
Michael F. Derkscn (ARDC No. 6296212) 
Morgan, Lewis & Bockius LLP 
77 West Wacker Drive 
Chica o Illinois 60601 
Firm ID No.: 40417 
DB1/64798376.3 7 
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JURY DEMAND 
COMES NOW the Plaintiff and through its attorneys, hereby respectfully requests trial 
by jury with respect to all triable issues raised in the above Complaint. 
Dated: September 21, 2010 
Respectfully submitted: 
Mercata Justa, L.L.C. 
y: One of Its Attorneys 
Kevin B. Dreher (ARDC No. 6277398) 
Michael F. Derksen (ARDC No. 6296212) 
Morgan, Lewis & Bockius LLP 
77 West Wacker Drive 
• 60601 
Firm ID No.: 40417 
DB1/6479113763 
EFTA01092877
LOAN AGREEMENT 
This Loan Agreement ("Agreement")  is entered into this day of October, 2009, by and 
among Mercata Justa Partners, L.L.C., a Delaware limited liability company (the "Borrower"),
Mercata Justa, L.L.C., a Delaware limited liability company (the "Lender"),  and Dean 
Kretschmar an individual and resident of the State of Florida ("Guarantor"). 
RECITALS 
A. Guarantor and Lender are members of the Borrower. 
13. The Borrower wishes to obtain a $4,500,000 loan from the Lender, the proceeds 
of which, together with $500,000 in equity from its members, the Borrower will use to purchase 
$5,000,000 in Class A membership interests in D3 Capital Club, LLC. Lender is willing to make 
the loan to Borrower on the terms and conditions described in this Agreement. 
C. The obligations of Borrower to Lender will be (a) guarantied by Guarantor, and 
secured by a lien on all assets of Guarantor, now owned or hereafter acquired, and (b) secured by 
a pledge of Borrower's membership interests in D3 Capital Club, LLC. Capitalized terms used in 
this Agreement which arc not otherwise defined herein shall have the meanings set forth in 
Article IX. 
AGREEMENTS 
In consideration of the terms and conditions contained in this Agreement and of any 
Term Loan or extensions of credit made to or for the benefit of the Borrower by the Lender, the 
parties agree as follows: 
ARTICLE I 
THE LOAN 
1.1 Loan. Subject to the terms and conditions of this Agreement, the Lender agrees to 
loan to the Borrower the aggregate principal amount of Four Million Five Hundred Thousand and 
no/100 dollars ($4,500,000) (the "Term Loan"). The Term Loan is due on the Term Maturity Date. 
The Term Loan shall be evidenced by a Note in substantially the form of Exhibit A ("Term Note"). 
Any portion of the Term Loan not borrowed on the Closing Date shall irrevocably expire. 
1.2 Use of Proceeds.  The Borrower shall use the proceeds of the Term Loan, together 
with Five Hundred Thousand and no/100 dollars ($500,000) in equity from its members, solely to 
purchase Class A Membership Interests in D3 Capital Club, LLC, a Delaware limited liability 
company. 
1.3 Interest Rate 
(a) Term Loan Interest. The Borrower shall pay interest on the unpaid 
principal amount of the Term Loan at the rate of 20% per annum (the "Applicable Rate"), from 
the date on which the Term Loan is made until paid in full. 
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(b) Default Interest Rate. Upon the occurrence of an Event of Default and during the continuance thereof, interest shall accrue on all Liabilities at the per annum rate of five (5) percentage points in excess of the Applicable Rate. Any interest payment, charge, or fee not paid when due shall be added to and become a part of the Liabilities. 
(c) Interest Computation.  All interest shall be computed on the basis of a 360 day year, and actual days elapsed. 
(d) Maximum Interest. Notwithstanding anything to the contrary contained in any Financing Agreement, the interest paid or agreed to be paid under the Term Note and any Financing Agreement shall not exceed the maximum rate of interest permitted by Applicable Law ("maximum rate"). If Lender shall receive interest in an amount that exceeds the maximum rate, the excess interest shall be applied to the principal of the Liabilities or, if it exceeds such unpaid principal, refunded to Borrower. In determining whether the interest contracted for, charged or received by Lender exceeds the maximum rate, Lender may, to the extent permitted by Applicable Law, (a) characterize any payment that is not principal as an expense, fee or premium rather than interest; (b) exclude voluntary prepayments and the effects thereof; and (c) amortize, prorate, allocate and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Liabilities hereunder. 
1.4 Making Payments. 
(a) Repayments from Proceeds.  To secure the Liabilities, Borrower has pledged to Lender all of its membership interests in D3, whether now owned or hereafter acquired. All proceeds and distributions received by Borrower from D3 or otherwise arising out of or relating to its membership interests in D3 shall be deposited by Borrower in a Designated Deposit Account (as defined below), and applied and paid as follows: 
(i) first, to payment of the Liabilities until all Liabilities have been paid in full; 
(ii) second, to the members of Borrower in accordance with Borrower's Operating Agreement. 
A "Designated Deposit Account"  shall mean a deposit account of Borrower, in which Lender has a first priority perfected security interest, and as to which an account control agreement satisfactory to Lender is in place. 
(b) Payment at Maturity. Any amount of principal or accrued interest outstanding and unpaid on the Term Loan Maturity Date will be payable to the Lender on the Maturity Date in immediately available funds without any offset or counterclaim and free and clear of (and without deduction for) any present or future taxes. 
(c) Grossup for Taxes. If Borrower shall be required by Applicable Law to withhold or deduct any Taxes from or in respect of any amount payable under this Agreement or any other Financing Agreement, (a) the amount payable to the Lender shall be increased as necessary so that, after making all required withholding or deductions, the Lender receives an amount equal to the sum it would have received had no such. withholding or deductions been 
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made, (b) Borrower shall make such withholding or deductions, and (c) Borrower shall pay the 
full amount withheld or deducted to the relevant taxation authority or other authority in 
accordance with Applicable Law. Any sums payable to the Lender pursuant to this Section shall 
be deemed to constitute Obligations. 
1.5 Changes in Current Tax Treatment.  If the Lender shall at any time after the date of 
this Agreement determine in good faith that any change in any applicable law, rule, regulation, or 
guideline or the administration of any such applicable law, rule, or regulation or guideline 
promulgated by any governmental authority charged with the administration of such applicable 
law, rule, or regulation or guideline (whether or not having the force of law) shall in any manner 
subject the Lender or the Term Loan to any tax not otherwise applicable as of the date of this 
Agreement, or impose or make applicable any disallowance, tax, or other change in the taxation of 
the interest on the Term Loan (other than a change in the general income tax rate of the Lender), 
and the Lender determines in good faith that the result of any of the foregoing will be to reduce the 
net after-tax yield to the Lender on the Term Loan, then the interest rate on the Term Loan, as 
applicable, shall be increased to the rate that will compensate the Lender for the reduction. The 
calculation by the Lender of the appropriate rate shall be conclusive, absent manifest error. If the 
Lender makes a claim for additional interest under this Agreement, the Lender shall provide to the 
Borrower a certificate setting forth the claim and the basis for such claim. The rate increase shall 
be effective as of the date of the applicable event, and any additional unpaid interest shall be paid 
by the Borrower together with the next regularly-scheduled payment of interest following the 
giving of the notice of the claim by the Lender. 
ARTICLE II 
COLLATERAL AND SECURITY 
2.1 Security Interest; Guaranty.  To secure payment and performance of the Liabilities, 
(a) the Borrower has granted and pledged to the Lender a security interest in all membership 
interests of D3 now owned or hereafter acquired by Borrower, pursuant to the Pledge Agreement, 
and (b) the Guarantor has guarantied the Term Loan and granted Lender a security interest in all of 
the Borrower's personal property and assets, including pursuant to (i) the Security Agreement, and 
(ii) the Mortgage. In addition, the Guarantor has guarantied Borrower's obligation to repurchase, 
at the Lender's option, all of Lender's membership interests in Borrower, pursuant to the 
Borrower's Operating Agreement and the Guaranty. 
2.2 Set-off. The Borrower agrees that (in addition to the Lender's and each holders' 
rights with respect to proceeds of Collateral), at any time (i) any amount owing by the Borrower 
under this Agreement or any of the Financing Agreements is then due to the Lender or any such 
holder, or (ii) any Event of Default exists, the Lender and each such holder may apply to the 
payment of the Liabilities any and all balances, credits, deposits (including all account balances, 
whether provisional or final and whether or not collected or available), accounts or monies of the 
Borrower then or thereafter with the Lender or such holder up to the extent of such Liabilities. 
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ARTICLE III 
AFFIRMATIVE COVENANTS 
The Borrower and Guarantor jointly and severally agree and covenant until the indefeasible 
payment in full of the Liabilities, and the distribution of the Preferred Return to Lender, as 
follows: 
3.1 Information.
(a) Financial Information.  The Borrower shall provide to the Lender upon 
request such financial statements, and all data and documentation with respect to its assets and 
liabilities, as the Lender may reasonably request. Guarantor shall provide to the Lender upon 
request his personal financial statements, and all data and documentation with respect to the 
assets and liabilities on such personal financial statements as the Lender may reasonably request. 
(b) Tax Returns. Within fifteen (15) days after filing, Guarantor and Borrower 
will provide Lender with true and correct copies of all federal and state tax and information 
returns of the Guarantor and Borrower filed with federal and state taxing authorities. 
(c) Default Notices. The Borrower and Guarantor shall notify and fully 
inform the Lender immediately after the Borrower or Guarantor obtains knowledge of (i) the 
occurrence of an event or the existence of factual circumstances giving rise to an Event of 
Default, (ii) an Event of Default under this Agreement, or (iii) any default under any of the other 
Financing Agreements. 
(d) Other Information.  With reasonable promptness, other business or 
financial data as the Lender reasonably may request. 
All financial statements delivered to the Lender pursuant to this Section 3.1 shall be certified by 
the Borrower and Guarantor as being true, complete, and accurate in all material respects as of 
the date thereof. The Borrower and the Guarantor authorize the Lender to discuss the financial 
condition of the Borrower and the Guarantor with the Borrower's and Guarantor's accountants 
and investment advisors. 
3.2 Inspection.  The Lender and any authorized representatives designated by the Lender 
in writing shall have the right, from time to time after the date of this Agreement until the 
indefeasible payment in full of the Liabilities, to: (a) visit and inspect all properties of the 
Borrower and Guarantor, and inspect, audit, check, and make copies of and extracts from the 
Borrower's and Guarantor's books, records, journals, orders, receipts, and any correspondence 
and other data relating to the Collateral or to any of the Transactions; (b) verify any fact 
concerning the Collateral as the Lender may consider reasonable under the circumstances; and 
(c) discuss the affairs, finances, and business of the Borrower with the Borrower's accountant or 
financial or investment advisor. The Borrower shall pay on demand all reasonable out of pocket 
expenses incurred by the Lender in exercising its rights under this Section 3.2. 
3.3 Claims and Taxes. The Guarantor shall indemnify and hold the Lender, and its 
officers, directors, employees, attorneys, and agents harmless from and against any and all 
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claims, demands, liabilities, losses, damages, penalties, costs, and expenses (including, without 
limitation, reasonable attorneys' and consultants' fees) relating to or in any way arising out of the 
possession, use, operation, or control of any of the Guarantor's assets, except for the 
indemnified party's gross negligence or intentional misconduct. The Guarantor shall pay or 
cause to be paid all of its real and personal property taxes, assessments, and charges and all of 
their franchise, income, unemployment, use, excise, old age benefit, withholding, sales and other 
taxes, and other governmental charges assessed against the Guarantor, or payable by the 
Guarantor, at the times and in the manner as to prevent any penalty from accruing or any lien or 
charge from attaching to its property. 
3.4 Insurance.  The Guarantor shall maintain, at the Guarantor's expense, public liability 
and third party property damage insurance policies with respect to the Collateral in amounts and 
with deductibles as are reasonably acceptable to the Lender, and shall cause the Lender to be 
named as additional insured on all the policies. The Guarantor shall, at its expense, keep and 
maintain its real property and personal property assets insured against loss or damage by fire, 
theft, burglary, pilferage, loss in transit, explosion, spoilage, and all other hazards and risks 
ordinarily insured against by other owners or users of similar properties in similar businesses in 
an amount at least equal to the lesser of (a) the outstanding principal balance of the Liabilities, or 
(b) the full replacement cost of all the property. All the policies of insurance shall be in a form 
and substance satisfactory to the Lender. The Guarantor shall deliver to the Lender, at closing, 
certificates of insurance evidencing insurance coverages. The policies of property insurance 
shall contain endorsements naming the Lender as additional insured and loss payee as its 
interests may appear, and stating that the policies shall not be terminated or materially changed 
without at least thirty (30) days prior written notice to the Lender. The Guarantor and the 
Borrower hereby direct all insurers under the policies of insurance to pay all proceeds of insurance 
policies naming the Lender or the Borrower as payee to the Lender. All proceeds of property 
insurance will be used to replace damaged items in like kind so long as no Event of Default shall 
be existing; provided that whenever an Event of Default shall be existing, the Lender may apply 
any proceeds of the insurance which may be received by it toward payment of the Liabilities, 
whether or not due, in such order of application as the Lender may determine. The Borrower and 
the Guarantor shall notify the Lender of all material insurance claims, and the Lender as an 
additional insured shall have the right to participate in any settlement negotiations with insurance 
companies on any material claim settlement, but is not obligated to do so. If the Borrower or the 
Guarantor, at any time or times after the date of this Agreement, shall fail to obtain or maintain 
any of the policies of insurance required under the terms of this Agreement or to pay any 
premium in whole or in part relating to the policies, then the Lender, without waiving or 
releasing any obligation or Event of Default, may at any time or times after the failure to obtain 
or maintain the policies, obtain and maintain the policies of insurance and pay the premiums and 
take any other action with respect to the policies which the Lender deems advisable in its 
reasonable discretion (but the Lender shall be under no obligation to do so). 
3.5 Notices. The Borrower and the Guarantor shall, as soon as possible and in any event 
within five (5) Business Days after the Borrower or the Guarantor learns of the following, give 
written notice to the Lender of: (a) any material proceeding (including, without limitation, 
litigation, investigations, arbitration, or governmental proceedings) being instituted or threatened 
to be instituted by or against the Borrower, Guarantor or D3, or related to D3 or its assets, in any 
federal, state, local, or foreign court or before any commission or other regulatory body (federal, 
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state, local, or foreign); (b) any notice that the Borrower's, Guarantor's, or D3's operations are 
not in full compliance with requirements of applicable federal, state, or local law, including 
environmental, health, and safety statutes and regulations; (c) the occurrence of a Material 
Adverse Effect; or (d) any default under the D3 Operating Agreement or otherwise relating to or 
with respect to D3 or the Pledged Interests. The Borrower and the Guarantor shall promptly 
forward to Lender copies of all correspondence and documentation received by Borrower or 
Guarantor from or with respect to D3 or the Pledged Interests. 
3.6 Further Assurances.  The Borrower and the Guarantor shall take such actions as are 
necessary or as the Lender may reasonably request from time to time to ensure that the Liabilities 
under this Agreement and the other Financing Agreements are secured by a first priority security 
interest (subject to Permitted Liens) in substantially all of the assets of the Borrower and Guarantor, 
in each case in such manner as the Lender may reasonably determine, including (a) the execution 
and delivery of joinders, guaranties, security agreements, pledge agreements, mortgages, deeds of 
trust, financing statements and other documents, and the filing or recording of any of the foregoing, 
and (b) the delivery of certificated securities and other Collateral with respect to which perfection is 
obtained by possession (and the Borrower and Guarantor shall use their best efforts and take all 
actions reasonably required by the Lender to ensure that all equity interests are treated as 
certificated securities under Article 8 of the UCC). 
ARTICLE IV 
NEGATIVE COVENANTS 
The Borrower and Guarantor jointly and severally covenant and agree until the 
indefeasible payment in full of the Liabilities, as follows: 
4.1 Encumbrances.  The Borrower and the Guarantor will not create, incur, assume, or 
suffer to exist any security interest, mortgage, pledge, lien, or other encumbrance of any nature 
whatsoever on any of its real or personal property assets, including, without limitation, the 
Collateral, except for Permitted Liens. 
4.2 Indebtedness.  Except as listed on the attached Schedule 4.2 the Borrower shall not 
incur, create, assume, or become or be liable in any manner with respect to, or permit to exist any 
Indebtedness, except for the Liabilities. 
4.3 Investments or Loans. The Borrower shall not make or permit to exist investment! 
or loans in or to any other Person. The Guarantor shall not make or permit to exist investments 
or loan in or to any other Person, except: (a) investments in cash and short-term direct 
obligations of the United States Government; (b) investments in negotiable certificates of deposit 
issued by any bank acceptable to the Lender, in its reasonable discretion, and payable to the 
order of the Borrower or Guarantor or to bearer and delivered to the Lender as collateral; 
(c) investments in commercial paper rated Al or PI; (d) Permitted Investments; (f) existing 
investments set forth on Schedule 4.3. 
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4.4 Disposal of Property. Except as otherwise permitted under this Agreement, the 
Borrower and Guarantor shall not sell, lease, transfer, or otherwise dispose of any of the 
Collateral, except for reinvestments in the ordinary course. 
4.5 Amendment of Documents.  The Borrower and Guarantor shall not, without the 
prior written consent of the Lender, exercise or waive any rights under, or permit any 
amendment or modification to, the D3 Operating Agreement, the Securities Purchase Agreement, 
or any other agreements with or relating to D3 or the Transactions. 
ARTICLE V 
REPRESENTATIONS AND WARRANTIES 
The Borrower represents and warrants to the Lender that: 
5.1 Authority.  The execution by the Borrower and Guarantor of this Agreement and of 
all the Financing Agreements, and the performance of their obligations under this Agreement and 
under the Financing Agreements: (a) are within the Borrower's and the Guarantor's powers; 
(b) are duly authorized, executed and delivered; (c) are not in contravention of the terms of any 
material indenture, agreement, or undertaking to which the Borrower or the Guarantor is a party 
or by which the Borrower, the Guarantor or any of their property is bound; (d) do not, as of the 
execution of this Agreement, require any governmental or other consent, registration or 
approval; and (e) will not, except as contemplated in this Agreement, result in the imposition of 
any lien, charge, security interest, or encumbrance upon any property of the Borrower or 
Guarantor under any existing indenture, mortgage, deed of trust, loan or credit agreement, or 
other material agreement or instrument to which the Borrower or the Guarantor is a party or by 
which the Borrower, the Guarantor or any of their property may be bound or affected. 
5.2 Binding Effect. This Agreement and all of the Financing Agreements are the legal, 
valid, and binding obligations of the Borrower and the Guarantor and are enforceable against the 
Borrower and Guarantor in accordance with their terms. 
5.3 Financial Data. All financial statements and data regarding the financial condition 
of the Borrower and the Guarantor previously furnished to the Lender or required to be furnished 
to the Lender as a condition of the Lender executing this Agreement, are true, complete, and 
accurate in all material respects, as of the dates set forth therein. All information, reports, and 
other papers and data furnished to the Lender is true, complete, and accurate in all material 
respects. 
5.4 Collateral.  The Borrower and Guarantor each has good, indefeasible, and 
merchantable title to its real and personal properties and assets (including, without limitation, the 
Collateral), including but not limited to all assets included on its financial statements, free and 
clear of all liens, claims, or encumbrances of any kind, except for Permitted Liens. 
5.5 Solvency.  The Borrower and the Guarantor are solvent, are able to pay debts as they 
become due, have capital sufficient to carry on its current business and all businesses in which it 
is about to engage, and now owns property having a value both at fair valuation and at present 
fair salable value greater than the amount required to pay its debts. The Borrower and the 
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Guarantor will not be rendered insolvent by the execution of this Agreement or of any of the 
Financing Agreements or by the transactions contemplated under this Agreement or under the 
Financing Agreements. 
5.6 Taxes. The Borrower and Guarantor have filed all federal, state, and local tax 
reports and returns it is required by any law or regulation to have filed, except for reports not 
filed pursuant to extensions duly obtained, have either duly paid all taxes, duties, and charges 
indicated as due on such returns and reports or made adequate provision for the payment of such 
taxes, duties, and charges, and the assessment of any material amount of additional taxes in 
excess of those paid and reported is not reasonably expected. The consummation of the 
Transactions shall not result in the imposition of any tax under 26 USC §5891. 
5.7 Litigation and Proceedings.  No judgments are outstanding against the Borrower or 
the Guarantor and no litigation, investigation, contested claim, or governmental proceeding is 
now pending or, to the Borrower's knowledge, threatened, by or against the Borrower or 
Guarantor, except judgments and pending or threatened litigation, investigations, contested 
claims, and governmental proceedings that if resolved in a manner unfavorable to the Borrower 
would not, in the aggregate, have a Material Adverse Effect. To the Borrower's and Guarantor's 
knowledge, the Borrower and the Guarantor does not have any contingent liabilities that can 
reasonably be expected to have, in the aggregate, a Material Adverse Effect. 
5.8 Other Agreements.  The Borrower and the Guarantor are not in default under any 
material contract, lease, or commitment to which either is a party or by which either is bound, 
including but not limited to the first mortgage. 
5.9 Compliance with Laws and Regulations.  The execution and performance by the 
Borrower and Guarantor of this Agreement and of the other Transaction Documents, and the 
consummation of the Transactions, are and will be in compliance with all applicable laws. The 
Borrower and Guarantor are in compliance with all applicable laws, orders, regulations, and 
ordinances of all federal, foreign, state, and local governmental authorities relating to their 
respective business, operations, and assets, except for laws, orders, regulations, and ordinances, 
the violation of which would not, in the aggregate, have a Material Adverse Effect. 
5.10 Consents. Except for consents from the first mortgagee under the mortgage listed on 
Schedule 5.10, if any, there arc no persons, governmental agencies, or other entities from which 
the Borrower or Guarantor must obtain consent to the consummation of the transactions 
described in this Agreement. 
5.11 Business Loan. The Term Loan, including interest rate, fees and charges as 
contemplated hereby, is a business purpose loan within the purview of 815 ILCS 205/4(1)(c), as 
amended from time to time. 
5.12 Absolute Reliance on Representations and Warranties.  All representations and 
warranties contained in this Agreement and any financial statements, instruments, certificates, 
schedules or other documents delivered in connection herewith, shall survive the execution and 
delivery of this Agreement, regardless of any investigation made by the Lender, or on the 
Lender's behalf. 
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ARTICLE VI 
CONDITIONS OF ADVANCES; DELIVERIES 
6.1 Conditions Precedent to Advance of Term Loan on the Closing Date. 
Notwithstanding any other provisions contained in this Agreement, as a condition precedent to any 
obligations of the Lender under this Agreement to make the Term Loan on the Closing Date, all of 
the following shall have occurred on or before the Closing Date: 
(a) The Borrower and Guarantor shall have delivered, or caused to be 
delivered, all of the following documents to the Lender, in form and substance reasonably 
satisfactory to the Lender: 
(i) Original fully completed, dated, and executed originals of all of the 
following documents: 
(1) This Agreement; 
(2) The Term Note; 
(3) Security Agreement; 
(4) Mortgage; 
(5) The Pledge Agreement; 
(6) Account control agreements in form and substance 
acceptable to the Lender with respect- to each of the deposit and investment accounts of the 
Guarantor, executed by the Guarantor, the Lender, and the institution at which each such account 
is maintained and/or the securities intermediary, as applicable; 
(7) Pledge agreements with respect to the pledge of all 
investments held by the Guarantor, in substantially the form of the Pledge Agreement, including 
the consents of all parties whose consent is required for such pledge; 
(8) Original certificates of title for all vehicles and boats 
owned by Guarantor, together with endorsements and such other documents as shall be necessary 
to reflect and perfect the Lender's security interest; 
(9) The other Financing Agreements, including but not limited 
to financing statements and other documents to perfect the Lender's security interest in the 
Collateral; 
(ii) Certificates from the Borrower's insurance carriers evidencing that 
all required insurance is in effect, together with the executed form of the Lender's loss payee 
endorsement and evidencing that the Lender is an additional insured, all as described in Section 
33 of this Agreement; 
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(iii) Copies of the securities purchase agreement, subscription 
agreement, D3 Operating Agreement, and other documents relating to the Borrower's investment 
and equity interest in D3, and proof satisfactory to the Lender that the proceeds of the 
Borrower's investment in D3 has been used for the purchase of settlements in accordance with 
the terms of the Transaction Documents; 
(iv) Original certificates representing the certificated membership 
interests in D3, to the extent certificates have been prepared and delivered to members of D3; 
(v) Evidence that all consents needed in order to consummate the 
Transactions have been obtained; and 
(vi) Other documents, agreements and information as the Lender may 
reasonably request. 
(b) No material adverse change, as determined by the Lender in its sole 
discretion, in the financial condition or operations of the Borrower or Guarantor shall have 
occurred and be continuing. 
(c) been obtained. All consents needed in order to consummate the Transactions shall have 
(d) The Lender shall have received, in form and substance satisfactory to the 
Lender, all certificates, orders, authorities, consents, affidavits, schedules, instruments, security 
agreements, financing statements, mortgages, and other documents which are provided for under 
this Agreement, or which the Lender may at any time reasonably request. 
6.2 Subsequent Deliveries.  The Borrower and the Guarantor covenant and agree to 
deliver the documents set forth on Schedule 6.2 to Lender, in form and substance acceptable to 
Lender, within five days after the Closing Date. Failure to deliver such documents within that time 
period shall constitute an Event of Default. 
ARTICLE VII 
DEFAULT AND RIGHTS AND REMEDIES OF THE LENDER 
7.1 Event of Default. For purposes of this Agreement, the occurrence of any of the 
following events shall be a "Event of Default": 
(a) The Borrower or Guarantor shall fail to perform any of the Liabilities 
requiring the payment of money when the payment is due (whether by scheduled maturity, 
required prepayment, acceleration, demand, or otherwise) and such failure shall not be cured 
within five (5) Business Days of the applicable due date. 
(b) The Borrower or Guarantor shall fail or neglect to perform, keep, or 
observe any of its covenants, conditions, or agreements contained in Sections 3.2, 14 Article IV 
or Article VI of this Agreement, or in Section 4.4 and 4.9 of the Security Agreement. 
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(c) The Borrower or Guarantor shall fail or neglect to perform, keep or 
observe any of its covenants, conditions or agreements contained in Sections 3.1, 3.5, 3.6 of this 
Agreement, and the breach continues for a period of ten (10) days after notice of the breach has 
been given by the Lender to the Borrower or the Guarantor, as the case may be. 
(d) The Borrower or the Guarantor shall fail or neglect to perform, keep, or 
observe any of its respective covenants, conditions, or agreements contained in this Agreement 
or in any of the Financing Agreements to which it is a party, other than the covenants, 
conditions, or agreements as provided in clause (a), (b) or (c) above, and the breach continues for 
a period of thirty (30) days after notice of the breach has been given by the Lender to the 
Borrower or the Guarantor. 
(e) Any representation or warranty now or hereafter made by the Borrower or 
the Guarantor in or in connection with this Agreement or any of the Financing Agreements, or 
made by D3 in connection with the Transactions, is untrue or incorrect in any material respect 
when made, or any schedule, certificate, statement, report, financial statement, notice, or other 
writing furnished at any time by the Borrower or the Guarantor to the Lender is untrue or 
incorrect in any material respect on the date as of which the facts are stated or certified; or any 
representation, warranty, schedule, certificate, statement, report, financial statement, notice or 
other writing furnished at any time by the Borrower to the Lender omits to state or include a 
material fact necessary to make the statement or the writing not misleading. 
(0 A judgment or order requiring payment in excess of $50,000 individually 
or in the aggregate shall be rendered against the Borrower, and the judgment or order shall 
remain unsatisfied or undischarged and in effect for 30 consecutive days without a stay of 
enforcement or execution. However, this Section 7.1(f) shall not apply to any judgment for 
which the Borrower is fully insured and with respect to which the insurer is not defending under 
a reservation of rights. 
(g) A notice of lien, levy, or assessment is filed or recorded with respect to all 
or a substantial part of the assets of the Borrower or the Guarantor by the United States of 
America, or any department, agency, or instrumentality of the United States of America, or by 
any state, county, municipality, or other governmental agency, or any material taxes or debts 
owing at any time or times after the date of this Agreement to any one of them becomes a lien 
upon all or a substantial part of the Collateral, and the lien, levy, or assessment is not discharged 
or released within thirty (30) days of the notice or attachment of the lien or the Borrower do not 
contest the validity of a lien, levy, or assessment on reasonable grounds and set aside an adequate 
reserve to cover the disputed liability. However, this Section 7.1(g) shall not apply to any liens, 
levies, or assessments that relate to current taxes not yet due and payable or to Permitted Liens. 
(h) There shall occur any loss, theft, substantial damage, or destruction of any 
item or items of Collateral not covered by insurance and with an aggregate value in excess of 
$50,000. 
All or any material part of the Collateral is attached, seized, subjected to a 
writ or distress warrant, levied upon, or comes within the possession of any receiver, trustee, 
custodian, or assignee for the benefit of creditors and on or before the sixtieth (60th) day 
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thereafter the assets are not returned to the Borrower or the Guarantor or the writ, distress 
warrant, or levy is not dismissed, stayed, or lifted. 
(j) The Borrower or the Guarantor: (1) generally shall not pay, shall be 
unable to pay, shall admit in writing its inability to pay its debts as the debts become due, or shall 
become insolvent; (2) shall make an assignment for the benefit of creditors or petition or apply to 
any court or other governmental agency for the appointment of a custodian or receiver for it or 
for all or any material part of its properties; (3) shall commence any proceeding under any 
bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or 
statute of any jurisdiction, whether now or hereafter in effect; (4) shall have had any bankruptcy, 
reorganization, arrangement, readjustment of debt, dissolution, or liquidation petition, 
application, or proceeding filed or any of these proceedings commenced against it in which an 
order for relief is entered or an adjudication or appointment is made, and which remains 
undismissed for a period of sixty (60) days; (5) shall indicate, by act or omission, its consent to. 
approval of, or acquiescence in any bankruptcy, reorganization, arrangement, readjustment of 
debt, dissolution, or liquidation petition, application, or proceeding, or any order for relief or the 
appointment of a custodian, receiver, or trustee for all or any material part of their properties; or 
(6) shall suffer any custodianship, receivership, or trusteeship to continue undischarged for a 
period of sixty (60) days. 
(k) A breach by the Borrower or the Guarantor shall occur under any 
agreement, document, or instrument existing between the Borrower or Guarantor and any other 
Person, which breach gives rise to a Material Adverse Effect. 
(I) If any Financing Agreement shall cease to be in full force and effect or the 
Borrower or Guarantor (or any Person by, through or on behalf of the Borrower) shall contest in 
any manner the validity, binding nature or enforceability of any material provision of any 
Financing Agreement. 
Without limiting the foregoing, an Event of Default hereunder shall be a default under 
each of the other Financing Agreements and any and all loan documents, agreements and 
undertakings evidencing or regarding the Liabilities, and a default under any of the other 
Financing Agreements and any and all loan documents, agreements and undertakings evidencing 
or regarding the Liabilities shall be an Event of Default hereunder, subject only to the grace and 
cure periods, if any, provided herein with respect to the applicable default. 
7.2 Effect of Event of Default. If (a) any Event of Default described in Section 7.1(i) 
shall occur, all Notes and Liabilities shall become immediately due and payable, all without 
presentment, demand, protest or notice of any kind; and (b) any other Event of Default shall occur, 
the Lender may declare the Note and Liabilities to be due and payable, whereupon the Notes and all 
Liabilities shall become immediately due and payable, all without presentment, demand, protest or 
notice of any kind. The Lender shall promptly advise the Borrower of any such declaration, but 
failure to do so shall not impair the effect of such declaration. 
7.3 Preservation of Rights. No delay or omission of the Lender in exercising any right 
under this Agreement or any Financing Agreement shall impair such right or be construed to be a 
waiver of any Event of Default or an acquiescence therein, and the making of a Loan 
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notwithstanding the existence of an Event of Default or the inability of the Borrower to satisfy the conditions precedent to such Loan shall not constitute any waiver or acquiescence. Any single or partial exercise of any such right



=== IMAGE DESCRIPTIONS ===
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