UNCONDITIONAL GUARANTY [HUIZENGA]
Exhibit
10.15
Execution
Version
UNCONDITIONAL GUARANTY
[XXXXXXXX]
[XXXXXXXX]
June 25, 2008
HB Service, LLC
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(Hereinafter referred to as “Borrower”)
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(Hereinafter referred to as “Borrower”)
H. Xxxxx Xxxxxxxx
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Guarantor”)
000 Xxxx Xxx Xxxx Xxxxxxxxx
Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Guarantor”)
Wachovia Bank, National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
(Hereinafter referred to as “Bank”)
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
(Hereinafter referred to as “Bank”)
To induce Bank to make, extend or renew loans, advances, credit, or other financial accommodations
to or for the benefit of Borrower, which are and will be to the direct interest and advantage of
the Guarantor, and in consideration of loans, advances, credit, or other financial accommodations
made, extended or renewed to or for the benefit of Borrower, which are and will be to the direct
interest and advantage of the Guarantor, Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to Bank and its successors, assigns and affiliates the timely payment
and performance of all liabilities and obligations of Borrower to Bank and its affiliates, under
that certain Revolving Note dated as of even date herewith, made by Borrower to the order of Bank,
in the original principal amount of $15,000,000.00, as the same shall be amended, modified,
increased or extended from time to time (the “Note”), that certain Credit Agreement dated as of
even date herewith between the Borrower and the Bank, as the same shall be amended or modified
from time to time (the “Credit Agreement”), and the Loan Documents, as defined below, and all
obligations of Borrower to Bank or any of its affiliates under any related swap agreement (as
defined in 11 U.S.C. § 101, as in effect from time to time), however and whenever incurred or
evidenced, whether primary, secondary, direct, indirect, absolute, contingent, due or to become
due, now existing or hereafter contracted or acquired, and all modifications, extensions and
renewals thereof, (collectively, the “Guaranteed Obligations”). Any term used herein but not
defined shall have the meaning as set forth in the Credit Agreement.
Guarantor further covenants and agrees:
GUARANTOR’S LIABILITY. This Guaranty is a continuing and unconditional guaranty of payment and
performance and not of collection. This Guaranty does not impose any obligation on Bank to extend
or continue to extend credit or otherwise deal with Borrower at any subsequent time. This Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any time any payment of
the Guaranteed Obligations is rescinded, avoided or for any other reason must be returned by Bank,
and the returned payment shall remain payable as part of the Guaranteed Obligations, all as though
such payment had not been made. Except as specifically set forth herein and to the extent the
provisions of this Guaranty give Bank additional rights, this Guaranty shall not be deemed to
supersede or replace any other guaranties
given to Bank by Guarantor; and the obligations guaranteed hereby shall be in addition to any
other obligations guaranteed by Guarantor pursuant to any other agreement of guaranty given to
Bank and other guaranties of the Guaranteed Obligations.
TERMINATION OF GUARANTY. Guarantor may terminate this Guaranty only by written notice, delivered
personally to or received by certified or registered United States Mail by an authorized officer of
Bank at the address for notices provided herein. Such termination shall be effective only with
respect to Guaranteed Obligations arising more than 15 days after the date such written notice is
received by said Bank officer. Guarantor may not terminate this Guaranty as to Guaranteed
Obligations (including any subsequent extensions, modifications or compromises of the Guaranteed
Obligations) then existing, or Guaranteed Obligations arising subsequent to receipt by Bank of said
notice if such Guaranteed Obligations are a result of Bank’s obligation to make advances pursuant
to a commitment, or are based on Borrower’s obligations to make payments pursuant to any related
swap agreement (as defined in 11 U.S.C. § 101, as in effect from time to time), entered into prior
to expiration of the 15 day notice period, or are a result of advances which are necessary for Bank
to protect its collateral or otherwise preserve its interests. Termination of this Guaranty by the
Guarantor will not affect the existing and continuing obligations of any other guarantor under any
other guaranty.
CONSENT TO MODIFICATIONS. Guarantor consents and agrees that, with prior written notice to
Guarantor, Bank (and, with respect to swap obligations, its affiliates) may from time to time, in
its sole discretion, without affecting, impairing, lessening or releasing the obligations of
Guarantor hereunder: (a) extend or modify the time, manner, place or terms of payment or
performance and/or otherwise change or modify the credit terms of the Guaranteed Obligations; (b)
increase, renew, or enter into a novation of the Guaranteed Obligations; (c) waive or consent to
the departure from terms of the Guaranteed Obligations; (d) permit any change in the business or
other dealings and relations of Borrower or any other guarantor with Bank; (e) proceed against,
exchange, release, realize upon, or otherwise deal with in any manner any collateral that is or
may be held by Bank in connection with the Guaranteed Obligations or any liabilities or
obligations of Guarantor; and (f) proceed against, settle, release, or compromise with Borrower,
any insurance carrier, or any other person or entity liable as to any part of the Guaranteed
Obligations, and/or subordinate the payment of any part of the Guaranteed Obligations to the
payment of any other obligations, which may at any time be due or owing to Bank; all in such
manner and upon such terms as Bank may deem appropriate, and without consent from Guarantor. No
invalidity, irregularity, discharge or unenforceability of, or action or omission by Bank relating
to any part of the Guaranteed Obligations or any security therefor shall affect or impair this
Guaranty.
WAIVERS AND ACKNOWLEDGMENTS. Guarantor waives and releases the following rights, demands, and
defenses Guarantor may have with respect to Bank (and, with respect to swap obligations, its
affiliates) and collection of the Guaranteed Obligations: (a) promptness and diligence in
collection of any of the Guaranteed Obligations from Borrower or any other person liable thereon,
and in foreclosure of any security interest and sale of any property serving as collateral for the
Guaranteed Obligations; (b) any law or statute that requires that Bank (and, with respect to swap
obligations, its affiliates) make demand upon, assert claims against, or collect from Borrower or
other persons or entities, foreclose any security interest, sell collateral, exhaust any remedies,
or take any other action against Borrower or other persons or entities prior to making demand
upon, collecting from or taking action against Guarantor with respect to the Guaranteed
Obligations, including any such rights Guarantor might otherwise have had under Va. Code §§ 49-25
and 49-26, et seq., N.C.G.S. §§ 26-7, et seq., Tenn. Code Xxx. § 00-00-000,
O.C.G.A. § 10-7-24, Mississippi Code Xxx. Section 87-5-1, and any successor statute and any other
applicable law; (c) any law or statute that requires that Borrower or any other person be joined
in, notified of or made part of any action against Guarantor; (d) that Bank or its affiliates
preserve, insure or perfect any security interest in collateral or sell or dispose of collateral
in a
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particular manner or at a particular time, provided that Bank’s obligation to dispose of Collateral
in a commercially reasonable manner is not waived hereby; (e) notice of any new transactions or
other relationships between Bank, Borrower and/or any guarantor, and of changes in the financial
condition of, ownership of, or business structure of Borrower or any other guarantor; (f)
presentment, protest, notice of dishonor, notice of default, demand for payment, notice of
intention to accelerate maturity, notice of acceleration of maturity, notice of sale, and all other
notices of any kind whatsoever to which Guarantor may be entitled, except as otherwise provided in
the Loan Documents; (g) the right to assert against Bank or its affiliates any defense (legal or
equitable), set-off, counterclaim, or claim that Guarantor may have at any time against Borrower or
any other party liable to Bank or its affiliates; (h) all defenses relating to an invalidity,
insufficiency, unenforceability, enforcement, release or impairment of Bank or its affiliates’ lien
on any collateral, of the Loan Documents, or of any other guaranties held by Bank; (i) any right to
which Guarantor is or may become entitled to be subrogated to Bank or its affiliates’ rights
against Borrower or to seek contribution, reimbursement, indemnification, payment or the like, or
participation in any claim, right or remedy of Bank or its affiliates against Borrower or any
security which Bank or its affiliates now has or hereafter acquires, until such time as the
Guaranteed Obligations have been fully satisfied beyond the expiration of any applicable preference
period; (j) any claim or defense that acceleration of maturity of the Guaranteed Obligations is
stayed against Guarantor because of the stay of assertion or of acceleration of claims against any
other person or entity for any reason including the bankruptcy or insolvency of that person or
entity; and (k) the right to marshalling of Borrower’s assets or the benefit of any exemption
claimed by Guarantor. Guarantor acknowledges and represents that Guarantor has relied upon
Guarantor’s own due diligence in making an independent appraisal of Borrower, Borrower’s business
affairs and financial condition, and any collateral; Guarantor will continue to be responsible for
making an independent appraisal of such matters; and Guarantor has not relied upon Bank or its
affiliates for information regarding Borrower or any collateral.
FINANCIAL CONDITION. Guarantor, in all material respects, warrants, represents and covenants to
Bank and its affiliates that on and after the date hereof: (a) the fair saleable value of
Guarantor’s assets exceeds its liabilities, Guarantor is meeting its current liabilities as they
mature, and Guarantor is and shall remain solvent; (b) all financial statements of Guarantor
furnished to Bank are correct and accurately reflect the financial condition of Guarantor as of
the respective dates thereof; (c) since the date of such financial statements, there has not
occurred a material adverse change in the financial condition of Guarantor; and (d) there are not
now pending any court or administrative proceedings or undischarged judgments against Guarantor,
no federal or state tax liens have been filed or threatened against Guarantor, and Guarantor is
not in default or claimed default under any material agreement.
INTEREST AND APPLICATION OF PAYMENTS. Regardless of any other provision of this Guaranty or other
Loan Documents, if for any reason the effective interest on any of the Guaranteed Obligations
should exceed the maximum lawful interest, the effective interest shall be deemed reduced to and
shall be such maximum lawful interest, and any sums of interest which have been collected in
excess of such maximum lawful interest shall be applied as a credit against the unpaid principal
balance of the Guaranteed Obligations. Monies received from any source by Bank or its affiliates
for application toward payment of the Guaranteed Obligations may be applied to such Guaranteed
Obligations in any manner or order deemed appropriate by Bank and its affiliates.
DEFAULT. If any of the following events occur, a default (“Default”) under this Guaranty shall
exist: (a) failure of timely payment or performance of the Guaranteed Obligations or a default
under any Loan Document after applicable notice and cure periods, if any; (b) a breach of any
agreement or representation contained or referred to in the Guaranty, or any of the Loan
Documents; (c) one hundred eighty (180) calendar days after the death of Guarantor unless Bank
approves a substitute guarantor; (d) the assignment for the benefit of creditors of, or the
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commencement of any insolvency or bankruptcy proceeding by or against Guarantor, provided such
event is not cured or set aside within sixty (60) days of its occurrence; (e) Bank determines in
good faith, in its sole discretion, that the prospects for payment or performance of the Guaranteed
Obligations are materially impaired or a material adverse change has occurred in the business or
prospects of Guarantor, financial or otherwise; and/or (f) a sale or transfer of Guarantor’s
ownership interest in the Borrower which results in Guarantor or his Affiliate(s) no longer
controlling Borrower.
If a Default occurs, the Guaranteed Obligations shall be due immediately and payable without
notice, other than Guaranteed Obligations under any swap agreements (as defined in 11 U.S.C. §
101, as in effect from time to time) with Bank or its affiliates, which shall be due in accordance
with and governed by the default and termination provisions of said swap agreements, and, Bank and
its affiliates may exercise any rights and remedies as provided in this Guaranty and other Loan
Documents, or as provided at law or equity. Guarantor shall pay interest on the Guaranteed
Obligations from such Default at the highest rate of interest charged on any of the Guaranteed
Obligations.
ATTORNEYS’
FEES AND OTHER COSTS OF COLLECTION. Guarantor shall pay all of Bank’s and its
affiliates’ reasonable expenses incurred to enforce or collect any of the Guaranteed Obligations,
including, without limitation, reasonable arbitration, paralegals’, attorneys’ and experts’ fees
and expenses, whether incurred without the commencement of a suit, in any suit, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding.
SUBORDINATION OF OTHER DEBTS. Guarantor agrees: (a) to subordinate the obligations now or
hereafter owed by Borrower to Guarantor (“Subordinated Debt”) to any and all obligations of
Borrower to Bank or its affiliates now or hereafter existing while this Guaranty is in effect,
provided however that Guarantor may receive regularly scheduled principal and interest payments on
the Subordinated Debt so long as (i) all sums then due and payable by Borrower to Bank and its
affiliates have been paid in full on or prior to such date, and (ii) no event or condition which
constitutes or which with notice or the lapse of time would constitute an event of default with
respect to the Guaranteed Obligations shall be continuing on or as of the payment date; (b)
Guarantor will either place a legend indicating such subordination on every note, ledger page or
other document evidencing any part of the Subordinated Debt or deliver such documents to Bank; and
(c) except as permitted by this paragraph, Guarantor will not request or accept payment of or any
security for any part of the Subordinated Debt, and any proceeds of the Subordinated Debt paid to
Guarantor, through error or otherwise, shall immediately be forwarded to Bank by Guarantor,
properly endorsed to the order of Bank, to apply to the Guaranteed Obligations.
MISCELLANEOUS.
Assignment. This Guaranty and other Loan Documents shall inure to the benefit of
and be binding upon the parties and their respective heirs, legal representatives, successors and
assigns. Bank’s interests in and rights under this Guaranty and other Loan Documents are freely
assignable, in whole or in part, by Bank. Any assignment shall not release Guarantor from the
Guaranteed Obligations. Organization; Powers. Guarantor (i) is an adult individual and is sui
juris, (ii) has the power and authority to own its properties and assets and to carry on its
business as now being conducted and as now contemplated; and (iii) has the power and authority to
execute, deliver and perform, and by all necessary action has authorized the execution, delivery
and performance of, all of its obligations under this Guaranty and any other Loan Document to
which it is a party. Applicable Law; Conflict Between Documents. This Guaranty shall be governed
by and construed under the laws of the state named in Bank’s address shown above without regard to
that state’s conflict of laws principles. If the terms of this Guaranty should conflict with the
terms of any commitment letter that survives closing, the terms of this Guaranty shall control.
Jurisdiction. Guarantor irrevocably agrees to non-exclusive
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personal jurisdiction in the state named in Bank’s address shown above. Severability. If any
provision of this Guaranty or of the other Loan Documents shall be prohibited or invalid under
applicable law, such provision shall be ineffective but only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Guaranty or other Loan Documents. Notices. Any notices to Guarantor shall be sufficiently
given if in writing and mailed or delivered to Guarantor’s address shown above or such other
address as provided hereunder, and to Bank, if in writing and mailed or delivered to Wachovia Bank,
National Association, Mail Code VA7628, X.X. Xxx 00000, Xxxxxxx, XX 00000 or Wachovia Bank,
National Association, Mail Code VA7628, 00 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 or such other
address as Bank may specify in writing from time to time. Notices to Bank must include the mail
code. In the event that Guarantor changes Guarantor’s address at any time prior to the date the
Guaranteed Obligations are paid in full, Guarantor agrees to promptly give written notice of said
change of address to Bank by registered or certified mail, return receipt requested, all charges
prepaid. Plural; Captions. All references in the Loan Documents to borrower, guarantor, person,
document or other nouns of reference mean both the singular and plural form, as the case may be,
and the term “person” shall mean any individual person or entity. The captions contained in the
Loan Documents are inserted for convenience only and shall not affect the meaning or interpretation
of the Loan Documents. Binding Contract. Guarantor by execution of and Bank by acceptance of this
Guaranty agree that each party is bound to all terms and provisions of this Guaranty. Amendments,
Waivers and Remedies. No waivers, amendments or modifications of this Guaranty and other Loan
Documents shall be valid unless in writing and signed by an officer of Bank. No waiver by Bank or
its affiliates of any Default shall operate as a waiver of any other Default or the same Default on
a future occasion. Neither the failure nor any delay on the part of Bank or its affiliates in
exercising any right, power, or privilege granted pursuant to this Guaranty and other Loan
Documents shall operate as a waiver thereof, nor shall a single or partial exercise thereof
preclude any other or further exercise or the exercise of any other right, power or privilege. All
remedies available to Bank or its affiliates with respect to this Guaranty and other Loan Documents
and remedies available at law or in equity shall be cumulative and may be pursued concurrently or
successively. Loan Documents. The term “Loan Documents” refers to all documents executed in
connection with or related to the Guaranteed Obligations and may include, without limitation, the
Note, the Credit Agreement, guaranty agreements, security agreements, instruments, financing
statements, letters of credit and any amendments or supplements (excluding swap agreements as
defined in 11 U.S.C. § 101, as in effect from time to time). LIMITATION ON LIABILITY; WAIVER OF
PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN
ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM
THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY
OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED
HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY
EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY
ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH
PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME
IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. FINAL AGREEMENT. This Agreement and
the other Loan Documents represent the final agreement between the parties and may not be
contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the parties.
There are no unwritten oral agreements between the parties.
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NEGATIVE COVENANTS. Guarantor agrees that from the date hereof and until final payment in full of
the Guaranteed Obligations, unless Bank shall otherwise consent in writing, Guarantor will not:
Default on Other Contracts or Obligations. Default (beyond any applicable cure and grace periods,
if any) on any material contract or contracts with or obligation when due to a third party or
default in the performance of any obligation to a third party incurred for money borrowed which
would result in the acceleration of debt owed in excess of $5,000,000.00 in the aggregate.
Government Intervention. Permit the assertion or making of any seizure, vesting or intervention by
or under authority of any governmental entity, as a result of which the management of Guarantor is
displaced of its authority in the conduct of its respective business or such business is materially
curtailed or materially impaired. Judgment Entered. Permit the entry of any final monetary
judgment(s) which, in the aggregate exceed $25,000,000.00 when taking into account Guarantor and
Xxxxxxxx Investments Limited Partnership, a Nevada limited partnership (“Xxxxxxxx
Investments”).
PERSONAL FINANCIAL STATEMENTS. Xxxxxxxx Investments and Guarantor shall deliver to Bank, within
120 days after the end of each calendar year, combined financial statements including, a balance
sheet, with supporting schedules; all in reasonable detail and prepared on a consistent basis with
prior financial statements furnished to Bank by Xxxxxxxx Investments and Guarantor. Such
statements shall be certified as to their correctness by Guarantor.
ARBITRATION. Upon demand of any party hereto, whether made before or after institution of any
judicial proceeding, any claim or controversy arising out of or relating to the Loan Documents
between parties hereto (a “Dispute”) shall be resolved by binding arbitration conducted under and
governed by the Commercial Financial Disputes Arbitration Rules (the “Arbitration Rules”) of the
American Arbitration Association (the “AAA”) and the Federal Arbitration Act. Disputes may
include, without limitation, tort claims, counterclaims, a dispute as to whether a matter is
subject to arbitration, claims brought as class actions, or claims arising from documents executed
in the future. A judgment upon the award may be entered in any court having jurisdiction.
Notwithstanding the foregoing, this arbitration provision does not apply to disputes under or
related to swap agreements. Special Rules. All arbitration hearings shall be conducted in the city
named in the address of Bank first stated above. A hearing shall begin within 90 days of demand
for arbitration and all hearings shall conclude within 120 days of demand for arbitration. These
time limitations may not be extended unless a party shows cause for extension and then for no more
than a total of 60 days. The expedited procedures set forth in Rule 51 et seq. of the
Arbitration Rules shall be applicable to claims of less than $1,000,000.00. Arbitrators shall be
licensed attorneys selected from the Commercial Financial Dispute Arbitration Panel of the AAA.
The parties do not waive applicable Federal or state substantive law except as provided herein.
Preservation and Limitation of Remedies. Notwithstanding the preceding binding arbitration
provisions, the parties agree to preserve, without diminution, certain remedies that any party may
exercise before or after an arbitration proceeding is brought. The parties shall have the right to
proceed in any court of proper jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or personal property or
other security by exercising a power of sale or under applicable law by judicial foreclosure
including a proceeding to confirm the sale; (ii) all rights of self-help including peaceful
occupation of real property and collection of rents, set-off, and peaceful
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possession of personal property; (iii) obtaining provisional or ancillary remedies including
injunctive relief, sequestration, garnishment, attachment, appointment of receiver and filing an
involuntary bankruptcy proceeding; and (iv) when applicable, a judgment by confession of judgment.
Any claim or controversy with regard to any party’s entitlement to such remedies is a Dispute.
Waiver of Jury Trial. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE
IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH REGARD TO A DISPUTE AS TO WHICH
BINDING ARBITRATION HAS BEEN DEMANDED.
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IN WITNESS WHEREOF, Guarantor, on the day and year first written above, has caused this
Unconditional Guaranty to be executed under seal.
Signed, sealed and delivered
in the presence of:
in the presence of:
| /s/ Xxxx X Xxxxxxx | /s/ H. Xxxxx Xxxxxxxx | |||||||
| Print Name: Xxxx X Xxxxxxx | H. Xxxxx Xxxxxxxx | |||||||
| /s/ Xxxxx X. Auke | ||||||||
| Print Name: Xxxxx X. Auke | ||||||||
STATE OF FLORIDA |
) | |
| ) SS: | ||
COUNTY OF BROWARD |
) |
The foregoing instrument was acknowledged before me this 23rd day of June, 2008, by H.
Xxxxx Xxxxxxxx. He is personally known to me or has produced a driver’s license as
identification and did not take an oath.
 |
||
| /s/ Xxxxxx Xxxxxx | ||
| Print or Stamp Name: Xxxxxx Xxxxxx | ||
| Notary Public, State of Florida at Large | ||
| Commission No.: DD628227 | ||
| My Commission Expires: 01/09/2011 |
