SECURITY AGREEMENT
This Security Agreement (this "Agreement"), dated as of December 5, 2003,
is between Xxxxxx Financial Corporation, a Delaware corporation (together with
all of its subsidiaries, the "Debtor"), the persons listed on Schedule I to this
Agreement (each, a "Secured Party") and Strasbourger Xxxxxxx Tulcin Xxxxx,
Incorporated, as agent for the Secured Parties.
WHEREAS, the Secured Parties have, individually purchased from Debtor a
series of 10% Senior Subordinated Secured Convertible Promissory Notes (each, a
"Promissory Note") in the minimum aggregate principal amount of $650,000 and in
the maximum aggregate principal amount of $1,600,000 (subject to an
over-allotment right to increase the aggregate principal amount of the
Promissory Notes by an additional $240,000), registered in the names of the
individual Secured Parties; and
WHEREAS, as a condition precedent to the making of such loan, the Secured
Parties have required that Debtor grant the Secured Parties, collectively and
not individually, a security interest in the assets of Debtor and that Debtor
execute and deliver this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants of the Debtor and
Secured Party set forth herein and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto agree
as follows:
ARTICLE I
DEFINED TERMS
1.1. Accounts. As used herein, the term "Accounts" shall mean any and all
rights of Debtor to payment for goods sold or leased or for services rendered
which are not evidenced by an Instrument (as hereinafter defined) or Chattel
Paper (as hereinafter defined), whether or not such rights have been earned by
performance, all guaranties and security therefore and all Debtor's interests
and rights in and to any and all good giving rise thereto.
1.2. Account Debtor. As used herein, the term "Account Debtor" shall mean
that party (other than Debtor) which is obligated on or under any Account,
Chattel Paper or General Intangible (as hereinafter defined).
1.3. Chattel Paper. As used herein, the term "Chattel Paper" shall mean a
writing or writings evidencing both a monetary obligation and a security
interest in, or a lease or consignment of, specific goods. When a transaction is
evidenced both by a security agreement or a lease and by an Instrument (as
hereinafter defined) or a series of Instruments, the group of writings taken
together constitutes Chattel Paper.
1.4. Documents. As used herein, the term "Documents" shall mean any and all
documents of title.
1.5. Equipment. As used herein, the term "Equipment" shall mean any and all
tangible personal property and fixtures of Debtor (other than Inventory, Chattel
Paper, Documents, Instruments and money) including, without limitation,
communications systems, computer systems, computer hardware and software,
heating ventilation, air conditioning and other utility installations,
furnishings, furniture, fixtures and other goods used or brought for use
primarily in business, together with any and all accessions, accessories, parts
and appurtenances thereto.
1.6. Event of Default. As used herein, the term "Event of Default" shall
have the meaning as set forth under the Note.
1.7. General Intangibles. As used herein, the term "General Intangibles"
shall mean any and all personal property (including, without limitation, things
in action) other than Inventory, Equipment, Accounts, Chattel Paper, Documents,
Instruments and money, including, without limitation, contract rights, corporate
or other business records (including, without limitation, customer lists,
correspondence, advertising materials, computer programs, printout and other
computer materials, and records), inventions, designs, patents, patent
applications, service marks, trademarks, trademark applications, trade names,
trade secrets, registrations, copyrights, licenses, permits, franchises,
warranties, rights and claims against third parties, rights to indemnification,
leasehold and subleasehold interest in personal property, plans, specifications,
drawings, appraisals, reports, security interests and security held by or
granted to Debtor, tax refunds, tax refund claims, royalty and product rights,
rights to the retrieval from third parties of electronically processed and
recorded data pertaining to any Collateral, and goodwill, whether or not
associated with any of the foregoing.
1.8. Instrument. As used herein, the term "Instrument" shall mean any and
all negotiable instruments, certificated securities and all other writings which
evidence a right to the payment of money and is of a type which is in the
ordinary course of business transferred by delivery with any necessary
endorsement or assignment, including, without limitation, drafts, checks,
certificates of deposit, notes, bills of exchange and uncertificated securities.
1.9. Inventory. As used herein, the term "Inventory" shall mean any and all
goods owned or held by or for the account of Debtor for sale or lease or for
furnishing under a contract of service, all raw materials, work in process or
materials incorporated in or consumed in the production of any of the foregoing,
and supplies, in each case wherever the same shall be located, whether in
transit, on consignment, or otherwise, and all property the sale or lease of
which has given rise to Accounts, Chattel Paper or Instruments where such
property has been returned to Debtor or repossessed by such Debtor or stopped in
transit or is to be used or consumed in Debtor's business.
1.10. Obligations. As used herein, the term "Obligations" shall mean any
and all of a Debtor's liabilities, obligations and indebtedness to the Secured
Parties under the this Agreement and the Promissory Notes.
1.11. Terms Defined in Uniform Commercial Code. All other terms used in
this Agreement which are not specifically defined herein or the definitions of
which are not incorporated herein by reference shall have the meanings assigned
to such terms in the Uniform Commercial Code in effect in the State of New York
(the "UCC") to the extent such other terms are defined therein.
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1.12. Singular/Plural; Headings. Unless the context of this Agreement
otherwise clearly requires, references to the plural include the singular,
references to the singular include the plural and "or" has the inclusive meaning
represented by the phrase "and/or." The words "hereof," "herein," "hereunder"
and other similar terms contained in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. The headings in
this Agreement are for reference purposes only and shall not control or affect
the construction of this Agreement or the interpretation hereof in any respect.
Any and all references to sections, subsections and exhibits relate to this
Agreement unless otherwise provided.
1.15. Tenancy Interests. As used herein, the term "Tenancy Interests"
means, to the extent not included in "General Intangibles," all of Debtors
right, title and interest in and to its leases of real property where the Debtor
is the tenant.
ARTICLE II
COLLATERAL
2.1. Collateral. As security for the payment and performance of all of the
Obligations, Debtor hereby mortgages, pledges and assigns to the Secured
Parties, and hereby creates in and grants to the Secured Parties, a continuing
security interest in and to all of Debtor's right, title and interest in and to
all personal property (tangible and intangible) and fixtures of whatever kind
and wherever located, whether now owned or hereafter created or acquired
(collectively, the "Collateral"), including, without limitation, the following:
(a) all Accounts;
(b) all Chattel Paper;
(c) all Documents;
(d) all Equipment;
(e) all General Intangibles;
(f) all Instruments;
(g) all Inventory;
(h) all Investment Securities;
(i) all Tenancy Interests (to the extent permitted by the
applicable landlords); and
(j) all increases in, additions and accessions to, substitutions
for, and replacements, proceeds and products of, any of the
foregoing.
ARTICLE III
DEBTOR'S USE OF COLLATERAL
3.1. Processing and Sales. So long as an Event of Default shall not have
occurred and be continuing, Debtor may use, sell, lease or otherwise deal in the
Collateral free of restriction or limitation, except for those limitations and
restrictions expressly provided herein.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Debtor hereby represents, warrants and agrees as follows:
4.1. Chief Executive Offices. Debtor's chief executive office and principal
place of business are located at the address set forth in Exhibit A hereto. The
Inventory and Equipment are located at the locations set forth in Exhibit B
hereto. If any change in any such locations occurs, Debtor shall notify the
Secured Parties and Agent thereof in writing.
4.2. Ownership of Collateral. Except for any liens arising under that
certain (i) North Carolina Deed of Trust, dated July 3, 2002 (the "Mortgage
Facility"), between Xxxxx Color Laboratories, Inc. and Branch Banking & Trust
Company (Mortgagee"), and (ii) Security Agreement, dated as of July 25, 2003,
between Debtor and Dr. Xxxxx Xxxxx, Debtor lawfully owns its Collateral free and
clear of any and all liens, security interests, claims, charges, encumbrances,
taxes and assessments whatsoever, except for interests of lessors of leased
Equipment used by Debtor in its operations and Debtor shall defend the title to
its Collateral against any and all third parties and against all claims and
demands whatsoever.
ARTICLE V
COVENANTS AND AGREEMENTS
Debtor covenants and agrees that so long as this Agreement remains in effect:
5.1. Possession. Debtor shall retain possession of the Collateral and shall
not sell, exchange, assign, loan, deliver, lease, mortgage or otherwise dispose
of same without the prior written consent of the Agent, except as otherwise
required under the terms of the Mortgage Facility or in the ordinary course of
business consistent with the past practice of Debtor.
5.2. Liens. Except as otherwise required under the terms of the Mortgage
Facility, Debtor shall keep the Collateral free and clear of any and all liens,
charges, encumbrances, taxes and assessments.
5.3. Taxes. Debtor shall pay, when due, any and all taxes, assessments and
license fees relating to the Collateral.
5.4. Repairs. Debtor shall maintain the Collateral in good repair and
working order at Debtor's cost and expense, normal wear and tear excepted.
Debtor shall promptly notify the Agent of any material damage to any of the
Collateral.
5.5. Insurance. Debtor shall keep the Collateral insured against loss by
fire, theft and other casualties in amounts reasonably acceptable to the Agent.
Upon the request of the Agent, Debtor shall cause the Agent and Secured Parties
to be named as a loss payee on all policies providing such insurance and shall
furnish the Agent with a certificate of insurance as evidence thereof and a copy
of such policies. Upon the request of the Agent, Debtor shall cause to be added
to any such insurance policy a clause requiring the Agent to be notified by the
applicable insurance company of any cancellation or lapse of any such policy at
least ten days in advance of any such cancellation or lapse.
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5.6. Change of Location. Debtor shall give at least 30 days' prior written
notice to the Agent of the opening of a new place of business where any of the
Collateral or books or records relating thereto are to be located, of any change
in the location of any of the Inventory or Equipment (other than goods in
transit) from that listed in Exhibit B hereto, and of any change in the location
of its chief executive office and principal place of business from that set
forth in Exhibit A hereto.
5.7. Inspection and Verification of Books, Records and Collateral. The
Agent or any third party designated by its shall have the right, but shall not
have the obligation, at any reasonable time, without hindrance or delay, at the
Agent's and Secured Parties's expense: (a) to inspect, audit and examine such
books, records and accounts of Debtor relating to the Collateral and to make
copies thereof and extracts therefrom; (b) to make such verification concerning
the Collateral as it may consider reasonable under the circumstances; and (c) to
discuss the business, properties, operations, prospects and condition (financial
or otherwise) of Debtor and its subsidiaries, if any, with its officers.
5.8. Safekeeping of Equipment and Inventory. The Agent and Secured Parties
shall not be responsible for: (i) the safekeeping of the Equipment, Inventory or
other Collateral; (ii) any loss or damage to the Equipment, Inventory or other
Collateral; (iii) any diminution in the value of the Equipment, Inventory or
other Collateral; or (iv) any act or default of any repairman, bailee or other
person or entity ("Person") with respect to the Equipment, Inventory or other
Collateral. Any and all risks of loss, damage, destruction or diminution in
value of the Equipment, Inventory or other Collateral shall be borne solely by
Debtor.
5.9. Maintenance of Security Interests. Subject to the rights of Mortgagee
under the Mortgage Facility, Debtor shall do any and all acts and things, and
will execute and deliver, all instruments (including without limitation, an
assignment of Tenancy Interests, an assignment of trademarks, any mortgages,
pledges, assignments, security agreements, financing statements, continuation
statements and other similar items) reasonably requested by the Agent to
establish, perfect, maintain and continue the perfection and priority of the
security interest of the Secured Parties in the Collateral. Debtor authorizes
the Agent to file financing statements describing the Collateral.
ARTICLE VI
REMEDIES
6.1. Rights and Remedies Generally.
(a) Upon the occurrence of an Event of Default, and subject to the terms of
the Loan Agreement and the Note, the Agent, on behalf of the Secured Parties,
shall be entitled to exercise, in addition to any and all rights and remedies
contained in this Agreement and any and all other agreements with Debtor, any
and all of the rights and remedies available to a Secured Parties under the UCC
or applicable law, including, without limitation:
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(i) without notice, demand or legal process, to enter upon any premises of
Debtor and take possession of any of the Collateral and the books and records of
Debtor constituting Collateral or relating to the Collateral;
(ii) require Debtor to assemble, at such Debtor's expense, any and all of
the Inventory and Equipment at reasonably convenient location(s) designated by
the Agent, including the premises of Debtor, and to make the same available to
the Agent and Secured Parties and reasonably cooperate in all material respects
in connection with the Agent's and Secured Parties's rights hereunder; and
(iii) to sell, lease, transfer, endorse, assign or deliver the whole or any
part of the Collateral at any public or private sale; and, upon consummation of
any such sale, the Agent shall have the right to assign, transfer, endorse and
deliver to the purchaser or purchasers thereof the Collateral or any portion
thereof so sold, and each such purchaser at any such sale shall hold the
property sold absolutely free from any claim or right on the part of Debtor.
(b) Debtor hereby irrevocably appoints the Agent as its attorney-in-fact
(which appointment shall be irrevocable and deemed coupled with an interest),
with full authority in the place and stead of Debtor and in the name of Debtor
or otherwise, from time to time after an Event of Default has occurred, to take
any action and to execute any instrument which the Agent may deem necessary or
advisable to:
(i) obtain and adjust insurance required to be paid to the Agent or Secured
Parties pursuant to this Agreement;
(ii) ask, demand, collect, xxx for, recover, compound, receive and give
acquittance and receipts for moneys due and to become due under or in respect of
any of the Collateral;
(iii) receive, endorse, and collect any drafts or other Instruments,
Documents and Chattel Paper in connection with clause (a) or (b) of this
Paragraph 6.1(b);
(iv) prepare, execute and file appropriate UCC financing statements; and
(v) file any claims or take any action or institute any proceedings which
the Agent may deem necessary or desirable for the collection of any of the
Collateral or the assignment or other transfer of the Collateral in connection
with the exercise of the Agent's and Secured Parties's remedies under this
Agreement.
Notwithstanding the foregoing, such appointment (other than the appointment
in clause (iv) of this Paragraph 6.1(b)) shall be effective only upon an Event
of Default and then only if and to the extent necessary to permit the Agent and
Secured Parties the practical realization of rights and remedies granted under
this Agreement.
(c) The Agent shall give the Debtor at least ten days' written notice
(which the Debtor agrees is reasonable notification within meaning of the
applicable sections of the UCC) of the Agent's intention to attempt to make any
such public or private sale of Collateral. Such notice, in the case of public
sale, shall state the time and place for such sale (which may be on the premises
of Debtor). Any public sale of any of the Collateral shall be held at such time
or times within ordinary business hours and at such place or places as the Agent
may fix and so state in the notice of such sale. At any such sale, the
Collateral or any portion thereof may be sold in its entirety or in separate
parcels, as determined by the Agent (in its sole discretion). The Agent may,
without any notice or publication, adjourn any public or private sale or cause
the same to be adjourned from time to time by announcement at the time and place
fixed for sale, and such sale may, without further notice, be made at the time
and place to which the same was so adjourned. As an alternative to exercising
the power of sale herein conferred upon it, the Agent may proceed by action at
law or in equity to foreclose the security interest created under this Agreement
and sell the Collateral or any portion thereof pursuant to judgment or decree of
a court or courts having competent jurisdiction.
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6.2. Disposition of Collateral. The net proceeds realized by the Agent and
Secured Parties upon any sale or other disposition, after deduction for any and
all actual and reasonable expenses incurred in connection with the retaking,
holding, preparing for sale or selling of the Collateral (including, without
limitation, reasonable attorneys' fees and disbursements) shall be applied
toward satisfaction of the Obligations. The Agent and Secured Parties shall pay
to Debtor any surplus realized upon such sale or other disposition. Debtor shall
remain liable for any deficiency. The commencement of any action, legal or
equitable, or the rendering of any judgment or decree for any deficiency shall
not affect the Secured Parties's security interest in the Collateral. Debtor
agrees that the Agent and Secured Parties shall not be under any obligation
whatsoever at any time to collect, attempt to collect, protect or enforce the
Collateral or any security therefor (which Debtor agrees to do at its own
expense), but the Agent may do so in its sole discretion at any time after the
occurrence and during the continuation of an Event of Default and at such times
the Agent shall have the right to take any steps by judicial process or
otherwise to enforce the Collateral or any security therefor.
6.3. Waiver of Notice. Debtor waives any and all rights to notice of any
kind prior to the exercise by the Agent or Secured Parties of their rights to
take possession of the Collateral without judicial process.
ARTICLE VII
APPOINTMENT AND AUTHORITY OF AGENT
7.1. Compensation. The Agent shall be entitled to reasonable compensation
for its services hereunder and shall be reimbursed for all reasonable expenses,
disbursements and advances (including reasonable attorney's fees and expenses)
incurred or made by it in performance of its duties under this Agreement. Such
reasonable compensation, disbursement, expenses and advances shall be borne by
the Secured Parties, jointly and severally, and shall be paid promptly upon
request by the Agent.
7.2. Discharge. The Agent may resign and be discharged from its duties
under this Agreement at any time by giving notice of such resignation to the
Debtor and Secured Parties specifying a date (not less than 30 days after the
giving of such notice) when such resignation shall take effect. Promptly after
such notice, the Secured Parties shall appoint a mutually agreeable successor
Agent, such successor Agent to become Agent hereunder upon the resignation date
specified in such notice. If Secured Parties are unable to agree upon a
successor Agent with 30 days after such notice, the Agent shall have the right
to petition a court of competent jurisdiction to appoint a successor, and the
Agent shall continue to serve until its successor is so appointed.
7.3. Limited Duties. The Agent undertakes to perform only such duties as
are specifically set forth in this Agreement and the Subscription Agreements
pursuant to which the Promissory Notes have been issued. The Agent, when acting
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or refraining from acting in good faith, shall not be liable for any mistake of
fact or error of judgment by it or for any acts or omissions by it of any kind
unless caused by gross negligence or willful misconduct, and shall be entitled
to rely, and shall be protected in doing so, upon (a) any written notice,
instrument or signature believed by it to be genuine and to have been signed or
presented by the proper party or parties duly authorized to do so and (b) the
advice of counsel (which may be of the Agent's own choosing, so long as such
counsel is not counsel to Debtor at the time of rendering such advice).
7.4. Litigation. In the event the Agent becomes involved in any litigation
or dispute by reason of this Agreement, Agent is hereby authorized to deposit
with the clerk of a court of competent jurisdiction the Collateral held by Agent
pursuant to this Agreement and, thereupon, shall stand fully relieved and
discharged of any further duties under this Agreement. Furthermore, in the event
the Agent is threatened with litigation by reason of this Agreement, Agent is
hereby authorized to interplead all interested parties in any court of competent
jurisdiction and to deposit with the clerk of such court the Collateral held by
Agent pursuant to this Agreement and, thereupon, shall stand fully relieved and
discharged of any future duties hereunder.
7.5. Additional Secured Parties. Agent shall have the authority to amend
Schedule A to add and/or modify the names of the Secured Parties to conform with
the actual names of the holders of the Promissory Notes.
ARTICLE VII
MISCELLANEOUS
8.1. Secondary Security Interest; Senior Indebtedness. Notwithstanding
anything to the contrary contained in this Agreement or the Promissory Notes,
the security interest granted to the Secured Parties in the Collateral shall
remain secondary in all respects, regardless of the date of perfection, to any
security interest granted to Mortgagee under the Mortgage Facility. In addition,
notwithstanding to the contrary contained in this Agreement and the Promissory
Notes, the security interest granted to the Secured Parties in the Collateral
shall be subordinated and junior in the right of collection to all Senior
Indebtedness as set forth in the Promissory Notes.
8.2. Law. This Agreement is governed by the internal laws of the State of
New York, without giving effect to any laws or principles that would apply the
laws of any other jurisdiction. Each party to this Agreement irrevocably
consents to the non-exclusive jurisdiction of the state and federal courts
located in Nassau County, New York.
8.3. Waivers, Amendments; Assignments. None of the terms or provisions of
this Agreement may be waived, altered, modified or amended except by an
instrument in writing, duly executed by the parties. This Agreement and all
obligations of the Debtor hereunder shall be binding upon the successors and
assigns of the Debtor, and shall, together with the rights and remedies of the
Secured Parties hereunder, inure to the benefit of the Secured Parties and its
successors and assigns. The rights, benefits, duties and obligations of (a) the
Debtor under this Agreement may not be assigned by Debtor without the Agent's
prior written consent.
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8.4. Notices. All notices and other communications called for or required
by this Security Agreement shall be in writing to the respective parties and
given as provided in the Promissory Notes.
8.5. Entire Agreement. This Agreement constitutes the entire agreement
between the parties regarding the subject matter contained herein and supersedes
all prior and contemporaneous undertakings and agreements of the parties,
whether written or oral, with respect to the subject matter herein.
IN WITNESS WHEREOF, the parties have executed or caused to be executed this
Security Agreement as of the date first above written.
Xxxxxx Financial Corporation
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxx, President
Secured Parties as Listed on Schedule A,
By Strasbourger Xxxxxxx Tulcin Xxxxx,
Incorporated, Attorney-in Fact
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxxxx, President
Strasbourger Xxxxxxx Tulcin Xxxxx, Incorporated
By: /s/ Xxxxxxx X. Xxxxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxxxx, President
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EXHIBIT A
Chief Executive Office and Principal Place of Business
Chief Executive Office: 000 Xxx Xxxxxxx Xxxx - Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Principal Place of Business: 000 Xxx Xxxxxxx Xxxx - Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
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EXHIBIT B
Locations of Inventory and Equipment
000 Xxx Xxxxxxx Xxxx - Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx Xxxxx, Xxxxx 00000
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
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SCHEDULE I
List of Secured Parties
Initial Principal Amount
Name of Secured Party of Promissory Note
--------------------- -----------------------
Xxxxx X. Xxxxx...................................................................... $ 200,000.00
Xxxxxx X. Xxxxx..................................................................... 25,000.00
Xxxxx Xxxxxxx....................................................................... 25,000.00
Xxxx X. Xxxxxxxxx................................................................... 25,000.00
Xxxxxxx Xxxxxxxx.................................................................... 50,000.00
Xxxxxxxxx Xxxx, MD.................................................................. 50,000.00
Xxxxxxxxx Xxxxx..................................................................... 20,000.00
Xxxxx X. Lake, III.................................................................. 25,000.00
Xxxx Xxxxxx......................................................................... 50,000.00
Xxxx X. Xxxxxxxx.................................................................... 25,000.00
Pisces Partners, L.P................................................................ 100,000.00
Xxxxxxx Xxxxxx and Xxxxxx X. Xxxxxx, JTWROS......................................... 30,000.00
Xxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx, JTWROS....................................... 35,000.00
RS & VS Ltd......................................................................... 50,000.00
Dr. Xxxxxxx Xxxxxxx................................................................. 35,000.00
Xxx Xxxxxxx and Xxxxxx Xxxxxxx, JTWROS.............................................. 50,000.00
Xxxxxxx Xxxxxxxxxx.................................................................. 25,000.00
Xxxxxxx Research Corp. LLC.......................................................... 25,000.00
