Exhibit 10.2
COMMITMENT LETTER
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December 1, 2005
TDS Resort Phase 2, L.P.
c/o Resorts Development Group LLC
0000 Xxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Attn.: Xxxxxxx X. Xxxxxx
Dear Xx. Xxxxxx:
KeyBank National Association (hereinafter "Lender") hereby offers, subject
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to the terms and conditions hereinafter set forth, to make the following
commercial real estate mortgage loan (the "Loan"):
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BORROWER: TDS RESORT PHASE 2, L.P., a limited partnership
organized under the laws of the State of Florida (the
"Borrower"). The Borrower shall be established in a manner
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satisfactory to Lender, to be special purpose entities
(i.e., bankruptcy remote) and are required to have an
independent director.
GUARANTOR(S): XXXXXXX X. XXXXXX ("Xxxxxx") and AMERICAN LEISURE
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HOLDINGS, INC., A corporation organized under the laws of
the State of Florida ("ALH"); jointly and severally.
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DESCRIPTION OF
PROJECT: The Loan (sometimes referred to herein as the "Phase II
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Loan") is being committed to concurrently with a separate
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loan in the amount of $40,000,000.00. Both loans relate to
construction of phases of a development known as "Tierra del
Sol" (the "Resort"). The Loan which is the subject of this
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Commitment is for Phase n of the Project, and the second
loan is for Phase I.
Additionally, an entity related to the Lender, KeyBanc
Capital Markets ("KeyBanc"), is underwriting the issuance of
a Community Development District ("CDD") bonds, with net
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proceeds in the amount of approximately $21,500,000.00,
which will be used for the payment of Project costs and to
purchase common land. Borrower shall comply with all
requirements of KeyBanc with respect to the CDD issuance. At
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Lender's discretion, this Loan will be cross-defaulted with
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the Phase I Loan and any other credits and/or obligations of
the Borrower and/or Guarantors.
USE OF PROCEEDS: The Phase II Loan proceeds are to be used solely for
the purpose of being invested as equity in Phase of the
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Resort.
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PHASE II LOAN
AMOUNT: The principal amount of the Phase II Loan shall not
exceed FOURTEEN MILLION EIGHT HUNDRED FIFTY THOUSAND AND
NO/100 DOLLARS ($14,850,000.00) or so much thereof as may be
advanced from time to time to or for the benefit of the
Borrower subject to the terms and conditions of the Loan
Agreement (the "Loan Amount").
TERM /PRINCIPAL
REPAYMENT: If not sooner paid, the entire principal balance
outstanding, together with all unpaid interest thereon,
fees, and costs and expenses incurred by Lender, shall be
due and payable in full on the eighteenth (18th) calendar
month anniversary of the Date of Closing ("Maturity").
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EQUITY REQUIREMENT: Borrower shall provide evidence reasonably satisfactory
to the Lender that Xxxxxxxx's land appreciation equity
invested in the Project indicates a loan-to-value ratio of
not more than fifty percent (50%).
INTEREST RATE: The proceeds of the Loan shall bear interest at the
daily, adjusted 30-Day LIBOR Adjusted Daily Rate plus the
LIBOR Rate Margin. The LIBOR Rate Margin shall be 3.10%. The
LIBOR Rate shall be the average rate as shown in Dow Xxxxx
Markets (formerly Telerate) (Page 3750) at which deposits in
United States Dollars are offered by first class banks in
the London Interbank Market at approximately 11:00 a.m.
(London time) two (2) business days prior to the date an
advance is made in an amount of the advance and with a
maturity equal to the applicable Interest Period. The LIBOR
Rate will be adjusted for any applicable reserves and taxes
if required by future regulations.
Interest shall be calculated on the basis of a 360-day
year for the actual number of days elapsed.
DEFAULT RATE: In the event of any default, the interest rate shall be
the greater of (i) three percent (3%) in excess of the
Interest Rate otherwise applicable on each outstanding
advance or (ii) eighteen percent (18%), but shall not at any
time exceed the highest rate permitted by law.
INTEREST PAYMENTS: Interest on the principal balance outstanding on the
Phase II Loan from time to time shall be due and payable
monthly beginning on the fifth (5th) day of the first
calendar month following the Date of Closing (as hereinafter
defined) and continuing on the fifth (5th) day of each
consecutive calendar month thereafter.
INTEREST RATE
PROTECTION: Borrower may elect to institute an interest rate
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hedging program through the purchase of an interest rate
swap, cap, or other such interest rate protection product
("Interest Rate Protection Product") with respect to the
Phase II Loan. The Interest Rate Protection Product, the
portion of the Phase II Loan (if less than the Phase n Loan
Amount) to which the Interest Rate Protection Product shall
apply, and the financial institution providing the Interest
Rate Protection Product shall be subject to the prior
approval of the Lender.
If Borrower purchases the Interest Rate Protection
Product from the Lender, Borrower shall enter into the
Lender's customary form agreement for such purposes and any
indebtedness or other obligations of Borrower arising under
such agreement shall be indebtedness secured by the Mortgage
and the other Loan Documents.
LOAN FEES: At Closing, fees shall be payable by Borrower to the
Lender as follows:
1. COMMITMENT FEE; At Closing, a Commitment Fee of
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ONE HUNDRED FORTY EIGHT THOUSAND FIVE HUNDRED AND
NO/100 DOLLARS ($148,500.00) (1% of the Phase II Loan
amount) shall be due and payable.
2. EXIT FEE: When Loan is due and payable in full or
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is prepaid in full (whether at Maturity or at any other
rate), Borrower will pay to Lender an exit fee equal to
four percent (4%) of the Maximum Phase II Loan Amount
unless: (a) the Loan is repaid with a construction loan
from Lender or an affiliate of Lender; CONTAINING TERMS
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CONSISTENT WITH THE PHASE I Loan, or (b) Lender
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declines to grant a construction loan to Borrower.
Borrower acknowledges that each such fees shall be for
the applicable services rendered, supported by good,
valuable and adequate consideration. The Commitment Fee
shall be deemed to be earned by the Lender on the date of
this Commitment, and shall not be refundable for any reason.
EXPENSES: The Borrower shall pay all costs and expenses including
(by way of illustration and not limitation): recording fees,
title insurance costs, escrow fees, flood zone determination
fee, survey fees, appraisal costs, the Lender's outside and
in-house attorney's costs and fees, the Lender's document
preparation fee, engineer's fee, inspecting architect's fee,
environmental audit and site inspection fees, and any and
all other costs of the Lender in connection with this
Commitment and the Phase II Loan.
LATE FEE: For any payment of principal or interest made later
than five (5) days following the due date, Borrower shall
pay a late fee equal to the greater of four percent (4%) of
the amount of such payment or Twenty-five Dollars ($25.00).
LOAN DOCUMENTS
AND SECURITY FOR
THE PHASE II LOAN: The Phase II Loan shall be evidenced by a promissory
note (the "Note") for the Phase II Loan Amount and a LOAN
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AGREEMENT, and shall be secured by:
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1. A mortgage, assignment of leases and rents,
security agreement and fixture filing (the "Mortgage")
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which Mortgage shall convey to Lender (a) a first lien
upon the unencumbered fee simple title to the PHASE II
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LAND, and the IMPROVEMENTS and easements and rights of
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way appurtenant thereto, which Land shall be more fully
described in a legal description to be provided by the
Borrower to satisfaction of the Lender, and (b) a first
lien and security interest in all fixtures and personal
property owned by Xxxxxxxx and relating to or located
on the Project, and (c) assigning all leases, subleases
and other agreements relating to the use and occupancy
of all or any portion of the Project, and to all
present and future rents, leases, issues and profits
therefrom;
2. A Guaranty of Payment executed by each Repayment
Guarantor and pursuant to which the Repayment
Guarantors jointly and severally guarantee payment of
principal, interest and other amounts due under the
Phase II Loan;
3. Such UCC Financing Statements describing the
personal property relating to the Project as Xxxxxx's
counsel determines are necessary to perfect or notify
third parties of the security interest intended to be
created in such property by the Loan Documents;
4. An Environmental Indemnity Agreement executed by
Xxxxxxxx and the Guarantors, jointly and severally;
5. A Subordination, Nondisturbance and Attornment
Agreement between Lender and each of the tenants under
any lease(s), if applicable;
A collateral assignment of security agreements and
contracts related to the
Resort: and collateral assignment of all sale
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contracts and purchase deposits (provided that Borrower
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shall be permitted to modify such contracts and
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agreements to include terms and prices more favorable
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to Borrower);
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6. Such other documents, instruments or certificates
as the Lender and its counsel may reasonably require,
including such documents as Lender in its sole
discretion deems necessary or appropriate to effectuate
the terms and conditions of the Loan Agreement and the
other loan documents, and to comply with the laws of
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this State.
All of the foregoing documents (the "Loan Documents")
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shall be in form and substance acceptable to the Lender and
shall remain effective for as long a period of time as any
part of the Phase II Loan is unpaid.
In addition, at Closing, Xxxxxxxx shall deliver the
opinion of Xxxxxxxx's legal counsel, in form and substance
acceptable to Xxxxxx and Xxxxxx's counsel, that
a. with respect to the Borrower, the Guarantors, the
Land, and the Project, that: (a) the transactions
contemplated by this Commitment do not violate any
provision of any law, restriction or the document
affecting the Borrower, the Guarantor(s), the Land, or
the Project; (b) the Loan Documents have been duly
executed and delivered, constitute legal, valid and
binding obligations of the Borrower and Guarantors and
are enforceable in accordance with their terms; (c) the
Borrower is a validly organized and existing limited
partnership under the laws of the State of Florida and
qualified to do business in the State of Florida, that
it has the legal capacity to own, develop and operate
the Land and the Project and to perform its obligations
under the Loan Documents, and that the Phase II Loan
has been duly authorized by the Borrower; (d) the
corporate Guarantor, as applicable, is a validly
organized and existing corporation under the laws of
the State of Florida and qualified to do business in
the State of Florida and is duly authorized to execute
and deliver the Guaranty; (e) there is no threatened or
pending litigation that might affect the Phase n Loan,
the Guarantors, the Land, the Project or the Borrower;
(f) such other matters (including an opinion with
respect to zoning of the Land and the Project)
concerning the Phase II Loan, the Loan Documents, the
Land, the Project, the Borrower, or the Guarantor, as
the Lender or its counsel may require.
b. A non-consolidated opinion confirming that the
structure of the Loans and the organization of the
Borrower and Guarantors is such that the Borrower will
constitute a "special purpose, bankruptcy remote
entity", separate from ALH and any other related or
commonly owned entities.
APPRAISAL: Lender shall receive a current written appraisal by
Integra Realty Resources reflecting an appraised value of
Phase II, assuming completion of the Phase I Improvements,
of no less than $29,700,000.00. The appraisal shall be
updated, at Xxxxxxxx's cost, as and when reasonably
requested by Xxxxxx.
TITLE INSURANCE
POLICY: Counsel for Lender shall obtain, at Borrower's expense,
an ALTA extended coverage lender's policy of title insurance
meeting the requirements set out in EXHIBIT "C" attached
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hereto by a title company satisfactory to the Lender in the
Phase II Loan Amount, insuring the Lender that it has a
first lien upon the Project, and including insurance against
construction hens and encroachments by or upon the Project
and with such endorsements as may be required by the Lender,
with all so-called "Standard" exceptions deleted and
containing no exceptions other than those specifically
approved by the Lender (the foregoing hereinafter referred
to as the "ALTA Policy").
INSURANCE: Borrower shall obtain and maintain either Builder's
Risk insurance coverage or permanent All Risk insurance
coverage as appropriate, satisfactory to the Lender, on the
real estate and personal property securing this Phase II
Loan. All insurance policies shall be issued by carriers
with a Best's Insurance Reports policy holder's rating of A
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and a financial size category of Class X and shall include a
standard mortgage clause (without contribution) in favor of
and acceptable to the Lender. The policies shall provide for
the coverages set forth in EXHIBIT "D" attached hereto and
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any other coverage that the Lender may from time to time
deem necessary:
Each policy shall provide that it may not be cancelled,
reduced or terminated without at least thirty (30) days
prior written notice to Lender. The initial policies shall
be prepaid and delivered to the Lender prior to closing and
all renewal policies shall be deposited with Lender as
evidence of such insurance.
ENVIRONMENTAL
ASSESSMENT: Borrower shall provide evidence (including a "Phase I"
environmental assessment dated within 60 days of Closing)
indicating that the Land is free from risk, in the Lender's
sole judgment, from all hazardous substances, toxic
substances or hazardous wastes as defined by any federal,
state, or local law, statute, ordinance or regulation and is
free of all other contamination which, even if not so
regulated, is known to pose a hazard to the health of any
person on or about the Land, and that the Land is not in a
"Wetlands" or "Flood Plain" area, and contains no
underground storage tanks or oil or gas xxxxx. The
environmental consultant must be acceptable to the Lender
and shall be directly engaged by Xxxxxxxx at Borrower's
cost. The Lender reserves the right, at Xxxxxxxx's expense,
to retain an independent consultant to review any such
evidence submitted by Borrower or to conduct its own
investigation of the Land.
In addition, the Lender may, under appropriate
circumstances consider the use of environmental insurance to
mitigate the risks of certain conditions.
NON-ASSIGNABILITY
OF COMMITMENT: This Commitment is made exclusively to the Borrower and
is not assignable nor transferable voluntarily or
involuntarily by the Borrower and any such assignment or
transfer or attempted assignment, or transfer shall be null
and void and shall result in this Commitment being
automatically and simultaneously terminated.
LENDER
PARTICIPATION/
SYNDICATION: Borrower acknowledges that the Lender reserves the
right to syndicate and/or participate its interest in the
Phase II Loan and Borrower agrees to, at Xxxxxx's request,
execute such additional promissory notes and other
instruments as may be appropriate to evidence its obligation
under the Phase n Loan to such syndicate banks as may
commit, in the future, to fund a portion of the Phase II
Loan Amount according to the terms of the Loan Agreement.
INDEMNIFICATION: The Borrower and any Guarantor agree to indemnify and
to defend and hold the Lender harmless against (i) any
brokerage commissions or finder's fees claimed by any broker
or other party in connection with the transactions
contemplated hereby and (ii) any losses, costs, damages or
expenses that the Lender may incur, directly or indirectly,
including attorneys' fees, as a result of or in connection
with the assertion against the Lender of any claims relating
to the presence or removal of any environmental
contamination on the Project or any adjacent property.
ADDITIONAL LOAN
CONDITIONS: 1. Borrower and the Guarantor(s) shall submit to
Lender, at Xxxxxx's request: (i) not later than one
hundred eighty (180) days after the end of each
calendar year, annual Federal Income Tax Returns; (ii)
not later than 90 days after the end of each fiscal
year, an annual, audited financial statement (or
personal financial statement, as applicable to Xxxxxx),
and (iii) not later than 45 days after the end of each
calendar quarter a company prepared interim financial
statement (as applicable to all Borrower and Guarantors
with the exception of Xxxxxx). Each financial statement
shall be prepared by a certified public accountant
acceptable to Lender in accordance with generally
accepted accounting principles. Each financial
statement shall be certified as true, complete and
correct by its preparer and by Borrower or, in the case
of each of the Guarantors' financial statements, by the
Guarantor to whom it relates. Borrower and the
Guarantors shall provide such additional financial
information Lender reasonably requires. Borrower shall
during regular business hours permit Lender or any of
its agents or representatives to have access to and
examine all of its books and records regarding the
development and operation of the Project.
2. Borrower shall erect a sign on the Land indicating
that the Lender is the source of financing for the
Project and to use the Phase II Loan Amount, Xxxxxxxx's
names and Project location in any advertisement.
Borrower shall pay the costs and expenses associated
with such sign.
3. Until the Phase n Loan is paid in full, neither
the Borrower nor any Guarantor(s) shall, without the
prior written consent of the Lender, create, effect,
consent to, attempt, contract for, agree to make,
suffer or permit any conveyance (other than leases for
portions of the Project in the ordinary course of
business), sale, assignment, transfer, lien, pledge,
mortgage,
security interest, encumbrance or alienation of,
the Project (OTHER THAN TO THIRD PARTY PURCHASERS OF
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TOWNHOMES AND CONDOMINIUMS PURSUANT TO THE CONTRACTS
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PREVIOUSLY FURNISHED AND APPROVED BY LENDER), OR any
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interest in or portion of the Project, or any interest
in the Borrower, which is effected directly,
indirectly, voluntarily, involuntarily, or by operation
of law or otherwise.
4. Provided no Event of Default exists under any of
the Loan Documents at any time while the Phase II Loan
remains unpaid, the Lender will permit Borrower to pay
the Property insurance premiums and real estate taxes
related to the Project outside of escrow during the
term of the Phase n Loan. Borrower shall furnish to the
Lender evidence that the insurance premiums and real
estate taxes are paid, at least five (5) days prior to
the last date for payment of such amounts before
imposition of any penalty or interest or termination of
the insurance policy, as applicable.
5. Upon repayment of the Phase I Loan, Borrower shall
assign as additional collateral for the Loan the
following collateral that will initially secure the
Phase I Loan: $4,000,000.00 deposited by Borrower
and/or Guarantors in a demand deposit account under the
Lender's sole dominion and control. This account will
be released upon full repayment of the Loan.
6. Lender shall have the right of first refusal with
regard to any construction financing for Phase II of
the Project.
7. A collateral assignment of all available cash flow
from Phase I, after the Phase I loan is repaid in full,
which cash flow shall be used to pay down the principal
balance of this Loan.
ITEMS TO BE
DELIVERED
PRE-CLOSING: Borrower shall furnish the following documentation to
the Lender at least ten (10) business days prior to Closing,
all in form, substance and execution satisfactory to the
Lender:
1. Evidence that the insurance required under this
Commitment has been obtained.
2. ALTA/ACSM Survey complying with the requirements
set forth on EXHIBIT "A" attached hereto.
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3. Evidence of compliance with all applicable zoning
requirements.
4. Evidence of availability of storm and sanitary
sewers and all utilities to the Project.
5. As applicable, certified copy of Xxxxxxxx's
Articles of Incorporation, Articles of Organization,
Bylaws, Operating Agreement, Certificate of Good
Standing from the Secretary of the State of Florida and
resolutions authorizing the action required of the
Borrower.
6. As applicable, certified copy of Guarantor's
Articles of Incorporation, Articles of Organization,
Bylaws, Operating Agreement, Certificate of Good
Standing from the Secretary of the State of Florida and
resolutions authorizing the action required of the
Guarantor.
7. Xxxxxxxx's and each Guarantor's Federal Tax I.D.
Number or Social Security Number.
8. A Commitment for the issuance of the ALTA Policy
and copies of all items listed in Schedule B thereof.
9. Current financial statements of the Borrower and
any Guarantors which indicate no material adverse
change from those previously delivered to the Lender.
10. A copy of the Lease(s) described on EXHIBIT "B"
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attached hereto, fully executed, and certified by the
Borrower as being a true, correct and complete copy
and, if applicable, a copy of the standard lease form
to be used with respect to the Project.
11. Federal and state tax lien, judgment, UCC and
pending litigation searches for the Borrower and each
Guarantor for each state and county in which such
entity was formed as well as the State and county in
which the Project is located - in each case, not more
than dated not more than sixty (60) days prior to the
Phase II Loan closing.
FLOOD PLAIN
DETERMINATION: The Lender shall obtain, at Borrower's cost, a Flood
Zone Certificate certifying that the Premises are not
located in a special flood hazard area as identified by
FEMA.
FINANCIAL
CONDITION: As of the Date of Closing of the Phase II Loan, there
shall have been no material adverse change in the financial
condition or credit of Borrower or any Guarantor or tenant
of the Project nor in the value or condition of the Project.
COMMITMENT
EXPIRATION: This Commitment is open for acceptance by the Borrower
until 5:00 P.M. Orlando, Florida, Time five (5) days from
the date of this Commitment. If it is not accepted and
returned to the Lender with the Commitment Fee by said date,
the Commitment shall immediately become null and void
without further notice.
PHASE II LOAN
CLOSING DATE: The Phase II Loan shall be closed no later than
December 30, 2005, this Commitment shall immediately become
null and void without further notice. As used herein, "Date
of Closing" and "Closing" shall mean that day on which the
Mortgage is filed for record with the appropriate county
recorders or clerks, and all other conditions of this
Commitment are satisfied.
In addition, pursuant to a Commitment Letter of even
date for Phase I of the RESORT, (the "Phase II Loan") must
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be closed simultaneously with the closing of that certain
construction loan in the amount of $40,000,000.00 (the
"Phase I Loan") being made by Lender, at Lender's sole and
absolute discretion, to: (i) TIERRA DEL SOL RESORT (PHASE
1), L.P., a limited partnership organized under the laws of
the State of Florida; (ii) TDS TOWNHOMES (PHASE 1), LLC, a
limited liability company organized under the laws of the
State of Florida; (iii) XXXXX XXXXXX I REAL ESTATE, INC., a
corporation organized under the laws of the State of
Florida; (iv) TIERRA DEL SOL (PHASE 2), L.P., a limited
partnership organized under the laws of Florida; (v) TDS
AMENITIES, INC., a corporation organized under the laws of
the State of Florida; (vi) TDS Clubhouse, Inc., a
corporation organized under the laws of the State of
Florida; (vii) Costa Xxxxxx XX Real Estate, LLC, a limited
liability company organized under the laws of the State of
Florida; (viii) Xxxxx Xxxxxx III Real Estate, LLC, a limited
liability company organized under the laws of the State of
Florida; (ix) TDS Townhomes (Phase 2), LLC, a Florida
limited liability company; and (x) Tierra del Sol Resorts,
Inc., a corporation organized under the laws of the State of
Florida (the "Phase I Borrowers"), pursuant to that certain
Commitment Letter of even date herewith executed by Xxxxxx,
Phase I Borrowers, Repayment Guarantors (as defined therein)
and Completion Guarantors (as defined therein).
Xxxxxx's Counsel: The Lender will be represented by the law firm of Xxxxx
& Lardner LLP. The principal contact attorney at the firm
will be Xxxxxxx X. Xxxxxxxxx, Xx., Esq. (Telephone
000.000.0000) (Fax 000.000.0000).
Modification: This commitment replaces in its entirety that certain
Commitment among the parties hereto dated August 15, 2005
and accepted August 16, 2005, and is issued at Borrowers'
request to address various modifications to the timing and
structure of the Project's development.
The Lender's obligation under this Commitment shall be subject to
satisfaction of all of the conditions contained herein. The issuance of this
Commitment shall not prejudice the Lender's rights of review and approval,
including without limitation, of all documents and materials heretofore
delivered to the Lender by or on behalf of the Borrower.
This Commitment shall not be binding upon the Lender unless it is accepted
in writing by the Borrower as provided herein, and delivered along with the
non-refundable Commitment Fee to Lender before the Commitment Expiration. The
terms of this Commitment, both prior to and after acceptance by Xxxxxxxx, may be
waived or modified only by a written instrument signed by the Lender and shall
survive the execution of the Loan Documents, to the extent not inconsistent
therewith. This Commitment shall be governed by the laws of the State of
Florida, without regard to principles of conflict of laws. TIME IS OF THE
ESSENCE IN THIS COMMITMENT LETTER.
[SIGNATURE PAGES TO FOLLOW]
KEYBANK NATIONAL ASSOCIATION
BY:/s/ Xxxxxx X. Xxxxxxxxxx
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Xxxxxx X. Xxxxxxxxxx,
Senior Vice President
December 13, 2005
ACCEPTANCE OF COMMITMENT
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The undersigned hereby acknowledges receipt of the foregoing Commitment
Letter this day of November, 2005, and does hereby accept all of the terms,
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conditions and time limitations set forth in the Commitment Letter by the
execution of same and by the payment herewith to the Lender of the Commitment
Fee referred to herein, which fee the undersigned acknowledges to be
non-refundable.
BORROWER:
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TDS RESORT PHASE 2, L.P., a
Florida limited partnership
A To Be Formed Entity
BY: TDSRLP, LLC, a Florida
limited liability company,
general partner
By: /s/ Xxxxxxx X. Xxxxxx its
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proposed authorized signator
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Xxxxxxx X. Xxxxxx,
Managing Member
GUARANTORS;
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/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
AMERICAN LEISURE HOLDINGS, INC., A
Florida corporation
By: /s/ Xxxxxxx X. Xxxxxx
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Its: CEO
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