EXHIBIT 10.91
PROMISSORY NOTE
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$1,275,000 November 18, 1997
FOR VALUE RECEIVED, INCO HOMES CORPORATION, a Delaware corporation
("Borrower"), whose address is 0000 Xxxx Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxxxxx
00000, promises to pay to those parties listed on Exhibit A-1 attached hereto
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("Holder"), or order, c/o USA Commercial Mortgage Company, Inc. at 0000 Xxxxxxxx
Xxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000, or at such other place as Holder may
from time to time in writing designate, in lawful money of the United States of
America, the principal sum of ONE MILLION TWO HUNDRED SEVENTY FIVE THOUSAND
DOLLARS ($1,275,000) or such greater or lesser sum as may be outstanding
pursuant to this Note, the Construction Deed of Trust, Security Agreement,
Assignment of Leases and Rents and Fixture Filing, dated as of even date with
this Note, between Borrower and Holder (the "Deed of Trust") and the other Loan
Documents (as defined below), together with interest on the principal balance
outstanding from time to time ("Principal Balance"), in like money, from the
date of this Note until fully repaid at the rates hereinafter set forth.
1. DEFINITIONS. As used herein, the terms "Borrower," "Holder," "Loan
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Agreement" and "Principal Balance" have the meanings assigned in the preceding
paragraph, and the following terms have the following meanings:
(A) "DEED OF TRUST" shall mean the Construction Deed of Trust,
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Security Agreement, Assignment of Leases and Rents and Fixture Filing, dated as
of even date with this Note, from Borrower to the trustee specified therein, in
trust for Holder, covering certain real and personal property described therein
situated in Fontana, San Bernardino County, California, as the same may be
amended or otherwise modified.
(B) "EVENT OF DEFAULT" has the meaning assigned to such term in
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the Deed of Trust.
(C) "HOME" OR "HOMES" means the 42 single-family home lots, as
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well as all improvements constructed thereon, located in Fontana, San Bernardino
County, California that constitute a part of the Mortgaged Property.
(D) "INTEREST RATE" means a rate per annum equal to fifteen and
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one-quarter of one percent (15 1/4%).
(E) "LOAN DOCUMENTS" has the meaning assigned to such term in the
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Deed of Trust.
(F) "MATURITY DATE" means the date which occurs twelve (12) months
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after the date hereof.
(G) "MORTGAGED PROPERTY" has the meaning assigned to such term in
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the Deed of Trust.
(H) "NET SALES PROCEEDS" for any Home means the gross sales price
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of such Home less (i) reasonable and customary closing costs and broker's
commission incurred in connection with the sale of the Home, provided that the
broker's commission paid to Borrower or an affiliate of Borrower shall not
exceed one and one-half percent (1 1/2%) of the gross sales price, (ii) amounts
to be paid to the Senior Lender in order to cause the Home to be released from
the lien of the Senior Deed of Trust , (iii) amounts, if any, to be paid to
contractors and material and labor providers with respect to materials and labor
provided in connection with the construction of the Home so that the Home can be
sold free and clear of all mechanics' liens; provided, however, that if the
total due to such contractors and material and labor providers for any Home
exceeds $5,000, then the payment to such contractors and material and labor
providers must be approved by the Holder or its loan servicing agent, and (iv)
$1000, to be paid to Borrower to fund a warranty reserve with respect to the
Homes.
(I) "RELEASE PRICE" for any Home means an amount equal to the
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lesser of (i) $35,000, plus the Release Price Shortfall, if any, or (ii) the Net
Sales Proceeds for such Home.
(J) "RELEASE PRICE SHORTFALL" - As of the date this Note is
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executed and delivered, the Release Price Shortfall shall be equal to zero. The
Release Price Shortfall shall be increased each time the Net Sales Proceeds
resulting from the sale of a Home and paid to Holder is less than $35,000. The
increase in the Release Price Shortfall shall be equal to the difference between
the Net Sales Proceeds paid to Holder and $35,000. The Release Price Shortfall
shall be decreased each time the Net Sales Proceeds for a Home that is paid to
Holder exceeds $35,000. The decrease in the Release Price Shortfall shall be
equal to that portion of the Net Sales Proceeds paid to Holder that exceeds
$35,000.
(K) "SENIOR DEED OF TRUST" means that certain Deed of Trust dated
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October 3, 1996 and recorded on October 22, 1996 in the Official Records of San
Bernardino County, California as Instrument No. 96-390256, given by Xxxxxxxx, as
trustor, for the benefit of the Senior Lender, that encumbers the Mortgaged
Property.
(L) "SENIOR LENDER" means Independent Lending Corporation, a
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Delaware Corporation d/b/a Construction Lending Corporation of America, as the
beneficiary under the Senior Deed of Trust, and its successors and assigns under
the Senior Deed of Trust.
2. INTEREST RATE. From the date of this Note to and including the
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date the entire Principal Balance is paid in full, the Principal Balance shall
bear interest at the Interest Rate. Interest shall be calculated based on the
actual days the Principal Balance is outstanding hereunder divided by 360 days
and multiplied by the Interest Rate.
3. PAYMENT OF PRINCIPAL AND INTEREST. From the date hereof to and
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including the date the entire Principal Balance is paid in full, the Principal
Balance and interest thereon shall be due and payable as follows:
(A) Borrower shall make monthly payments of interest only owing on
the Principal Balance, in arrears, commencing on the first day of the calendar
month immediately following the date hereof and continuing on the first day of
each succeeding month to and including the first day of the month in which the
Maturity Date occurs. Any interest that has accrued but is not paid as required
under this Note shall be compounded and added to the Principal Balance on the
first day following the date such interest was required to be paid.
(B) Borrower shall also pay, at the time the sale of each Home
closes (i.e., title transfers from the Borrower or other owner of the Home to
the purchaser of the Home), an amount equal to the Release Price.
(C) On the Maturity Date, Borrower shall make a final payment that
shall include the unpaid portion of the Principal Balance, any interest accrued
and unpaid thereon, and any and all other sums due under this Note, the Deed of
Trust and the Loan Documents.
All payments due from Borrower under this Note and the other Loan
Documents shall be made to a control account established by Xxxxxx's loan
servicing agent. Holder or its loan servicing agent shall provide written
notice to Borrower of the account number for this control account and the name
and address of the financial institution where the control account is
established. Borrower shall direct the escrow company that handles the closing
of each Home to forward the payments due to Holder under this Note and the other
Loan Documents to this control account.
4. APPLICATION OF PAYMENTS. Each payment received by Holder from
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Borrower with respect to this Note shall be applied: First: to the payment of
the costs and expenses of taking possession of, holding, maintaining and selling
any collateral for this Note; Second: to the payment of attorneys' fees and
expenses incurred in connection with the collection of this Note and enforcement
against any collateral for this Note; Third: to the payment of all amounts
advanced under the Deed of Trust or the Loan Documents (other than the Indemnity
Agreement, as defined in the Deed of Trust) to preserve the value of the
Mortgaged Property;
Fourth: to the payment of late charges and accrued interest due and payable
hereunder; Fifth: to reduction of the Principal Balance; Sixth: to the payment
of any amounts owing to Holder or any other parties under the Indemnity
Agreement; and the balance, if any, shall be paid to the parties entitled to
receive it; or in such other order or proportion as Holder, in Xxxxxx's sole
discretion, may determine. Payments shall be deemed made when Xxxxxx has
received, at Holder's address or at such other address as Holder shall provide
written notice of to Borrower, immediately available funds in lawful money of
the United States of America.
BORROWER UNDERSTANDS THAT THIS NOTE IS NOT SELF-AMORTIZING AND THAT A
SUBSTANTIAL BALLOON PAYMENT MAY BE DUE ON THE MATURITY DATE.
5. PREPAYMENT. Borrower may prepay all or any portion of the Principal
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Balance at any time without premium on at least thirty (30) days prior written
notice to Holder.
6. MAXIMUM RATE OF INTEREST. Notwithstanding any provision in this Note,
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the total liability for payments of interest and payments in the nature of
interest, including without limitation, all charges, fees or any sums which may
at any time be deemed to be interest, shall not exceed the amount which Holder
may lawfully collect. In the event the total liability for payments of interest
and payments in the nature of interest, including without limitation, all
charges, fees or other sums which may at any time be deemed to be interest,
shall, for any reason whatsoever, result in an effective rate of interest, which
for any month or other interest payment period exceeds the amount which Holder
may lawfully collect, all sums in excess of those lawfully collectible as
interest for the period in question shall, without further notice to any party
hereto, be applied as a premium-free reduction of the Principal Balance
immediately upon receipt of such sums by Xxxxxx, with the same force and effect
as though Borrower had specifically designated such excess sums to be so applied
to the reduction of the Principal Balance; provided, however, that Holder may,
at any time, and from time to time, elect, by notice in writing to Borrower, to
waive, reduce or limit the collection of any sums (or refund to Borrower any
sums collected) in excess of those lawfully collectible as interest rather than
accept such sums on prepayment of the Principal Balance.
7. SECURITY. Payment of this Note is secured by the Deed of Trust and
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the Loan Documents. All of the agreements, conditions, covenants, provisions and
stipulations contained in the Deed of Trust and the Loan Documents which are to
be kept and performed by Borrower are hereby made a part of this Note to the
same extent and with the same force and effect as if they were fully set forth
herein, and Borrower covenants and agrees to keep and perform them, or cause
them to be kept and performed, strictly in accordance with their terms.
8. LATE CHARGES. Time is of the essence hereof and if any amount owing
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under this Note is not paid within five (5) days of when due, Borrower shall pay
to Holder a late charge payment equal to five percent (5%) of such amount.
Borrower recognizes that a default by Xxxxxxxx in making the payments agreed to
be paid when due will result in Xxxxxx's incurring additional expenses in
servicing the loan evidenced by this Note, including, but not limited to sending
out notices of delinquency, computing interest, and segregating the delinquent
sums from not delinquent sums on all accounting, loan and data processing
records, in loss to Holder of the use of the money due, and in frustration to
Holder in meetings its other financial commitments, but that it is extremely
difficult and impractical to ascertain the extent of such damages. Xxxxxxxx
therefore agrees that a sum equal to $0.05 for each $1.00 of each payment that
is not paid five (5) days after its due date, is a reasonable estimate of the
fair average compensation for the loss and damages Holder will suffer, that such
amount shall be presumed to be the amount of damages sustained by Xxxxxx in such
case, and that Borrower agrees to pay Holder this sum on demand. Such late
charge shall be paid without prejudice to the right of Holder to collect any
other amounts provided to be paid or to declare a default under this Note, the
Deed of Trust or Loan Documents.
9. DEFAULT INTEREST. Time is of the essence hereof and, from and
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after the Maturity Date or five days after the occurrence of an Event of
Default, all amounts owing under this Note and the Loan Documents shall bear
interest at a rate per annum equal to twenty and one-quarter of one percent (20
1/4%) (the "Default Rate"), instead of at the Interest Rate. If the Default Rate
is triggered as a result of an Event of Default and Xxxxxxxx subsequently cures
the Event of Default, then all amounts owing hereunder will resume bearing
interest at the Interest Rate, rather than the Default Rate, on the date the
Event of Default is cured; provided, however, that the interest owing hereunder
may again accrue at the Default Rate upon the occurrence of a subsequent Event
of Default. Borrower recognizes that a default by Xxxxxxxx in making the
payments agreed to be paid when due will result in damage to Holder, including
loss to Holder of the use of the money due and frustration to Holder in
meetings its other financial commitments, but that it is extremely difficult and
impractical to ascertain the extent of such damages. Xxxxxxxx therefore agrees
that the Default Rate is a reasonable estimate of the loss and damages Holder
will suffer, that such amount shall be presumed to be the amount of damages
sustained by Holder in such case, and that Xxxxxxxx agrees to pay Holder this
sum on demand. Interest at the Default Rate shall be paid without prejudice to
the right of Holder to collect any other amounts provided to be paid or to
declare a default under this Note, the Deed of Trust or Loan Documents.
10. DEFAULT. Upon the occurrence of any Event of Default, Holder, at its
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option and without further notice, demand, or presentment for payment to
Borrower or others, may declare immediately due and payable the unpaid Principal
Balance and interest accrued thereon together with all other sums owed by
Borrower under this Note, the Deed of Trust and the Loan Documents (including,
but not limited to attorneys' fees as provided in Section 12 below), anything in
this Note, the Deed of Trust and the Loan Documents to the contrary
notwithstanding. Payment of such sums may be enforced and recovered in whole or
in part at any time by one or more of the remedies provided to Holder in this
Note, the Deed of Trust and the Loan Documents.
11. REMEDIES CUMULATIVE. The remedies of Holder, as provided in this
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Note, the Deed of Trust and the Loan Documents, shall be cumulative and
concurrent and may be pursued singly, successively or together, at the sole
discretion of Holder, and may be exercised as often as occasion therefor shall
occur; and the failure to exercise any such right or remedy shall in no event be
construed as a waiver or release thereof.
12. ATTORNEYS' FEES. In the event that suit be brought hereon, or an
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attorney be employed or expenses be incurred to compel payment of this Note or
any portion of the indebtedness evidenced hereby, or to defend the priority of
the Deed of Trust or to otherwise interpret or enforce any of the terms of this
Note, the Deed of Trust, the Loan Agreement or any of the other Loan Documents,
Borrower promises to pay all such attorneys' fees, costs and expenses all as
actually incurred by Xxxxxx as a result thereof including, without limitation,
(a) attorneys' fees, costs and expenses incurred in appellate proceedings or in
any action or participation in, or in connection with, any case or proceeding
under Chapters 7 or 11 of the Bankruptcy Code or any successor thereto, and (b)
attorneys' fees, costs and expenses incurred as a result of Holder exercising
its rights to cure any Event of Default by Borrower under this Note, the Deed of
Trust or any other Related Document, or as a result of the foreclosure of the
Deed of Trust, deed in lieu thereof, or trustee's sale thereunder.
13. WAIVER OF NOTICE. Borrower waives diligence, presentment for payment,
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demand, notice of demand, notice of nonpayment or dishonor, protest and notice
of protest of this Note, and all other notices in connection with the delivery,
acceptance, performance, default, or enforcement of the payment of this Note,
except such notices as are provided in the Deed of Trust. Borrower further
waives all right of offset that it may now have or hereafter become entitled to
with respect to any Holder.
14. WAIVER. Holder shall not be deemed, by any act of omission or
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commission, to have waived any of its rights or remedies hereunder unless such
waiver is in writing and signed by Xxxxxx, and then only to the extent
specifically set forth in the writing. The acceptance by Holder of any payment
hereunder which is less than payment in full of all amounts due and payable at
the time of such payment shall not constitute a waiver of the right to exercise
any of the foregoing options at that time or at any subsequent time or nullify
any prior exercise of any such option without the express consent of Holder,
except as and to the extent otherwise provided by law. A waiver with reference
to one event shall not be construed as continuing or as a bar to or waiver of
any right or remedy as to a subsequent event.
15. GOVERNING LAW. This instrument shall be governed by and construed
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according to the laws of the State of California.
16. CONSTRUCTION OF CERTAIN TERMS. Whenever used, the singular shall
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include the plural, the plural shall include the singular, and the words
"Holder" and "Borrower" shall be deemed to include their respective heirs,
administrators, executors, successors and assigns.
17. NOTICE. All notices which Holder or Borrower may be required or
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permitted to give hereunder shall be made in the same manner as set forth in
Section 9.3 of the Deed of Trust.
18. SEVERABILITY OF PROVISIONS. In the event any one or more of the
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provisions hereof shall
be invalid, illegal or unenforceable in any respect, the validity of the
remaining provisions hereof shall be in no way affected, prejudiced or disturbed
thereby.
19. SALE OF INTEREST. Borrower acknowledges that Holder may, in its
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sole discretion, sell all or any part of its interest in the loan as evidenced
by this Note and, in connection therewith, Holder may assign all or any portion
of this Note. Any such sale and assignment may be at a discount or premium,
subject to a brokerage fee or involve a servicing agreement, and shall not alter
any of Borrower's obligations hereunder or under any of the Loan Documents.
20. ACCELERATION UPON TRANSFER. Sections 5.1.18 and 6.9 of the Deed of
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Trust provide as follows:
"5.1.18 TRANSFER OF MORTGAGED PROPERTY. Trustor shall not, without
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the prior written consent of Beneficiary, directly or indirectly sell, transfer,
convey, further encumber, assign, grant any option, subordinate, convert to
condominiums or grant any further lien or easement on all or any part of the
Mortgaged Property, or enter into any agreement for any of the foregoing,
whether by operation of law recorded or unrecorded, or voluntarily or
involuntarily; provided, however, that if the Mortgaged Property consists of
single-family homes, condominiums or other residential properties to be sold,
Trustor may accept sales reservations and enter into purchase and sales
contracts so long as such actions are consistent with the Loan Documents, all
rules and regulations of the California Department of Real Estate and all other
applicable laws, rules and regulations. Trustor shall promptly notify
Beneficiary in writing of any such intended event or agreement for which
Beneficiary's consent may be required.
6.9 DUE ON SALE. If, without the prior written consent of
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Beneficiary, (a) there is any sale, transfer, assignment, conveyance or
encumbrance, whether voluntary or involuntary, of all or part of the Mortgaged
Property or any interest therein or any other event or agreement referred to in
Section 5.1.18, (b) Trustor or any one or more of the persons comprising Trustor
is a partnership and the interest of any general partner (or the interest of any
general partner in a partnership that is a partner) is assigned or transferred,
except for an assignment or transfer resulting from the death or physical or
mental incapacity of a general partner; (c) Trustor or any one or more of the
persons comprising Trustor is a partnership and more than twenty-five percent
(25%) of the corporate stock of any corporation that is a general partner of
such partnership is sold, transferred or assigned; (d) Trustor is a corporation
and more than twenty-five percent (25%) of the corporate stock is sold,
transferred or assigned; (e) Trustor is a trust and there is a change in
beneficial ownership with respect to more than twenty-five percent (25%) of the
trust; (f) Trustor consists of several persons or entities holding fractional
undivided interest in the Mortgaged Property and there is a cumulative change in
ownership with respect to more than a twenty-five percent (25%) fractional
undivided interest in the Mortgaged Property; or (g) there is a seizure of the
Mortgaged Property, or attachment of any lien on the Mortgaged Property, whether
voluntary or involuntary, which has not been removed or bonded off to
Beneficiary's satisfaction within thirty (30) days of such attachment."
21. INTEGRATION. This Note and the documents described herein
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constitute the entire understanding of Borrower and Xxxxxx with respect to the
matters discussed herein, and supersede all prior and contemporaneous
discussions, agreements and representations, whether oral or written. This Note
may only be modified in a writing signed by Xxxxxx, or its loan servicing agent,
and Borrower.
22. HEADINGS. The section captions are inserted for convenience of
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reference only and shall in no way alter or modify the text of such sections.
23. USE OF BROKER. Borrower acknowledges that the loan evidenced by
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this Note was arranged (as the term "arranged" is used in California Civil Code
Section 1916.1) by Xxx X. Xxxxxx, who is licensed as a real estate broker in the
State of California.
IN WITNESS WHEREOF, Xxxxxxxx, intending to be legally bound hereby,
has duly executed this Note the day and year first above written.
BORROWER: INCO HOMES CORPORATION,
a Delaware corporation
By:________________________________
Xxx X. Xxxxxx
President
EXHIBIT A-1
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INVESTORS
1. Xxxxxxx X. Xxxxxxx & Xxxxxx X. Xxxxxxx $ 50,000 3.9216%
2. Xxxxxxx Xxxxxxxxx Living Trust, Xxxxxxx Xxxxxxxxx & $ 50,000 3.9216%
Xxxxxxx Xxxxxxxx, TTEEs DTD 8/2/95
3. Xxxxxx Xxx Revocable Separate Property Trust $ 25,000 1.9607%
DTD 6/9/97, Xxxxxx Xxx Xxxx,s TTEE
4. Xxxxxxx X. Xxx Xxxxxxx $ 100,000 7.8431%
5. Xxxxxxxxx X. Xxxxxxxx Living Trust $ 100,000 7.8431%
UAD 8/7/96, Xxxxxxxxx X. Xxxxxxxx, TTEE
6. Xxxx Xxxxxxxx & Xxxx Xxxxxxxx $ 50,000 3.9216%
7. Xxxxx Xxxx & Xxx Xxxx $ 50,000 3.9216%
8. Xxxx Xxxxxxxx & Xxxxx Xxxxxxx $ 50,000 3.9216%
9. Xxxxxxxxx Xxxxx $ 50,000 3.9216%
10. Xxxxxx Xxxxx $ 50,000 3.9216%
11. Alexander Family Trust DTD 6/16/95 $ 25,000 1.9607%
Xxxxxxx X. Xxxxxxxxx & Xxxxxxx X. Xxxxxxxxx, TTEEs
12. Xxx Xxxxxxxxx & Xxxxx Xxxxxxxxx $ 50,000 3.9216%
13. The G&M Xxxxxxx Trust DTD 6/25/97 $ 50,000 3.9216%
Xxxxxx X. Xxxxxxx, XXXX & Xxxxxx X. Xxxxxxx, TTEE
14. Xxxxx X. Xxxxxxx & Xxxxxx Xxxxxxx $ 50,000 3.9216%
15. Xxxxxxx Xxxxxx, TTEE FBO $ 100,000 7.8431%
Xxxxxxx Xxxxxx PSP DTD 4/1/72
16. Xxxxx Xxxxx $ 200,000 15.6863%
17. Keys Family Trust DTD 6/21/93 $ 100,000 7.8431%
Xxxxx X. Xxxx, TTEE, Xxxxxx X. Xxxx, TEE
18. The Xxxxxxxx Trust, Xxxxxx X. Xxxxxxxx OR $ 25,000 1.9607%
Xxxxx Xxxxxxxx, TTEE
19. Xxxxx Xxxxx $ 50,000 3.9216%
20. Louis & Xxxxx Xxxxxx 1993 Living Trust UAD 8/31/93, Xxxxx $ 50,000 3.9216%
X. Xxxxxx, TTEE & Xxxxx X. Xxxxxx, TTEE
$1,275,000 100.00%
