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HomeMy WebLinkAbout911856Return to: WMI P.O. BOX 409 Thayne, WY 83127 ,,00734 LOAN AND SECURITY AGREEMENT Borrower: Howard Woods and Gretchen Woods Borrower's Address: 406 Wilderness Lane, Thayne, WY 83127 Lender: Lester Barber and Luvilla Barber Lender's Address: 91688 U.S. Highway 89 P.O. Box 126 Thayne, WY 83127 THIS LOAN AND SECURITY AGREEMENT is entered into among Howard Woods and Gretchen Woods (referred to below as "Borrower"); and Lester Barber and Luvilla Barber (referred to below as "Lender"). ARTICLE I DEFINITIONS The following words shall have'the following memfings when used in this Agreement. Terms not otherwise de£med in this Agreement shall have the meanings attributed to such temps in the Uniform Commercial Code. All references to dollar amounts shall mean amounts in lawful money of the United States of America. Agreement The word "Agreement" means this Loan and Security Agreement, as this Loan and Security Agreement may be amended or modified from thne to time, together with all exhibits and schedules attached to this Loan and Security Agreement fi'om time to time. Borrower. The word "Borrower" means Howard Woods and Gretchen Woods. Guarantor. The word "Guarantor" means and includes without lhnitation, Howard Woods and Gretchen Woods, along with each and all of the other guarantors, sureties, and accommodation parties in com~ection with the Indebtedness. Lender. The word "Lender" means Lester Barber and Luvilla Barber. Note. The word "Note" cOllectively means the note dated AagUst 11, 2006_, in the principal amount of Sixty Seven Thousand, Five Hundred and NO/100 Dollars ($67,500.00) l¥om Borrower to Lender, together with all renewals of, extensions of, modifications of, ref'nlancing8 of, consolidations of and substitutions for the note. Business Day. "Business Day" shall mean any day of the week other ~an a Saturday, Sunday or a legal federal or state holiday. Collateral. The word "Collateral" means the following described property of Borrower, whether now owned or hereafter acquired, and whether now existing or hereafter adsing: Lot 4, Barco Acres, recorded in Lincoh~ County, Wyoming In addition, the word "Collateral" includes all of the following, whether now owned or hereafter acquired, whether now existing or hereafter arising, and wherever located: (a) All attachments, accessions, tools, parts, supplies, increases, and additions to and all replacements of and substitutions for any property described in this Collateral section. (b) All products and produce of any of the property described in this Collateral section. RECEIVED 9/15/2005 at 11:02 AM RECEIVING # 911856 BOOK: 597 PAGE: 734 JEANNE WAGNER LINCOLN COUNTY CLE~,K;~KEMMERER, WY (c) (d) (e) All accounts, contract rights, general intangibles, instruments, monies, payments, and all other rights, arising out of a sale, lease, or other disposition of any of the property described in this Collateral section. All proceeds (including insurance proceeds) from the sale, destruction, loss, or other disposition of any of the property described in this Collateral section. All records and data relating to any of the property described in this Collateral section, whether in the form of a writing, photograph, microfilm, microfiche, or electronic media, together with all of Borrower's right, title, and interest in and to all computer software required to utilize, create, maintain, and process any such records or data on electronic media. Eveut of Default. The words "Event of Default" mean and include any of the Events of Default set forth below in the section titled "Events of Default." Indebtedness. The word "Indebtedness" means all principal and interest payable under the Note and any amounts expended or advanced by Lender to discharge obligations of Borrower or expenses incurred by Lender to enforce obligations of Borrower under this Agreement or any of the Related Documents, together with interest on such amounts as provided in the Note. In addition, the Indebtedness includes all obligations, debts and liabilities, plus interest thereon, of Borrower to Lender, as well as all claims by Lender against Borrower, whether now existing or hereafter arising, whether related or unrelated to the purpOse of the Note, whether voluntary or otherwise, whether due or not due, direct or indirect, absolute or contingent, liquidated or unliquidated and whether Borrower may be liable individually or jointly with others, whether obhgated as guarantor, surety, accommodation pm'ty or otherwise, and whether recovery upon such amounts may be or hereafter may become barred by any statute of limitations, and whether the obligation to repay such amounts may be or hereafter may become otherwise unenforceable. Related Documents. The words "Related Documents" mean and include without limitation all promissory notes, applications and agreements for letters of credit, loan agreements, guaranties, security agreements, mortgages, deeds of trust, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. ARTICLE H THE LOAN Subject to the terms and conditions of this Agreement, Lender agrees to make a loan to the Borrower in a principal amount of $67,500.00. The loan described herein shall be evidenced by the Note, which shall bear interest at the rate equal to 11%. Principal and accrued interest on the Note shall be due and payable May 1, 2008. Interest on the Loan shall be calculated on the per annum basis of a year of 360 days and for the actual number of days (including the fin:st but excluding the last) elapsed. The Borrower shall have the right, at any time and from time to time, to prepay the Note, in whole or in part. All payments (including prepayments) by the Borrower on account of principal, interest, fees and expenses shall be made not later than on the date when due, in immediately available funds, to Lender at Lender's adch'ess referred to above. If any payment is scheduled to become due and payable on a day which is not a Business Day, such payment shall instead become due and payable on the innnediately following Business Day. The proceeds of the Note shall be used by the Borrower for Lot 4, Barco Acres, Lincoln County, Wyoming. This note will be amortized over 15 years and balloon in 24 months from June 1, 2006. If all payments are made on the first of each month for the duration of this agreement and is paid in full on June 1, 2008, the interest rate will revert to a rate equal to 7% for the full time of the loan and will be adjusted on the date of payment in full. This loan is interest free until May 1, 2006 at wlfich time the interest and terms will commence.. ARTICLE HI CONDITIONS The obligation of Lender to make the loan evidenced by the Note shall be subject to the fulfillment of the following conditions precedent on or before the date of such Note in a manner satisfactory to Lender: Lender shall have received the following: 1. The Note, duly executed by Borrower. 0736 thereto. 3. Evidence satisfactory to Lender that Lender has been granted a perfected, first priority Lien in and to the Collateral. 4. Landlord and mortgagee waivers, in form and substance satisfactory to Lender, duly executed by each lessor and lienholder of real property leased or owned by Borrower. 5. In the event Borrower is a corporation: a. Certified copies of the resolutions of the Board of Directors of Borrower authorizing the execution and delivery of this Agreement, the Note, the Related Documents and the borrowings under this Agreement. b. Certificate of the Secretary or an Assistant Secretary of Borrower as to the incumbency and signature of the officers of the Borrower authorized to sign this Agreement, the Note and the Related Documents, together with evidence of the incumbency of such Secretary or Assistant Secretary. c. A copy of the articles of incorporation and a copy of the bylaws of Borrower, including all amendments thereto, certified by the Secretary or Assistant Secretary of Borrower as being true and correct. 6. A favorable opinion of counsel to Borrower, addressing such matters as Lender may request. 7. Such other documents as the Lender may request, including, without limitation, documents relating to the existence and good standing of Borrower. Covenants, Representations and Warranties; Defaults. The representations and warranties of the Borrower contained in this Agreement shall be true and correct in all material respects when made and as of the date of the loan with the same effect as if ~nade on and as of such date; Borrower shall have complied with all of the temps and conditions of this Agreement to be performed or observed by it and no Default or Event of Default shall be in existence or arise after giving effect to the requested loan. Documentatiou. All corporate and legal proceedings and all documents required to be completed and executed by the provisions of, and all instruments to be executed in connection with the transactions contemplated by, this Agreement, shall be in form and substance satisfactory to Lender. Material Adverse Change. There shall not have occurred h~ the opinion of Lender, any material adverse change in the business affairs, financial condition or prospects of Borrower since Other Conditions. ARTICLE IV SECURITY AGREEMENT AND RIGHT OF SETOFF Grant of security interest. For valuable consideration, Borrower grants to Lender a security interest in the Collateral to secure the Indebtedness and agrees that Lender shall have the rights stated in this Agreement with respect to the Collateral, in addition to all other rights, which Lender may have by law. Right of setoff. Borrower hereby grants Lender a contractual possessory security interest in and hereby assigns, conveys, delivers, pledges, and transfers all of Borrower's right, title and interest in and to Borrower's accounts, if any, with Lender, h~cluding all accounts held jointly with someone else and all accounts Borrower may open in the future. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all Indebtedness against any and all such accounts. ARTICLE V BORROWER'S COVENANTS, REPRESENTATIONS AND WARRANTIES 00737 appropriate, including if it so chooses "single interest insurance," which will cover only Lender's interest in the Collateral. Application of Insurance Proceeds. Borrower shall promptly notify Lender of any loss or damage to the Collateral. Lender may make proof of loss if Borrower fails to do so within fifteen (15) days of the casualty. In the event any insurance proceeds become available due to loss or damage to the Collateral, said proceeds must first be applied to the repair, rebuilding, remedy, improvement or replacement of the condition of the Collateral and all damaged parts of the Collateral. Any unused or remaining amount of said insurance proceeds, if any, remaining after completion of said repairing, rebuilding, improvement or replacement shall be applied in the following manner: 1. First, toward the satisfaction of any existing defaults under the terms of this Agreement; 2. Second, as a prepayment on the principal balance of the Indebtedness secured by this Agreement with no such prepayment deferring the time for payment of any remaining payments required by this Agreement; 3. Third, the remainhag proceeds, if any, after the satisfaction of defaults and the prepayment on the principal balance of the Indebtedness, shall be paid to Borrower. Insurance Reports. Borrower, upon request of Lender, shall fumish to Lender reports on each existing policy of insurance showing such information as Lender may reasonably request including the following: a. The name of the insurer; b. The risks insured; c. The amount of the policy; d. The property insured; e. The then current value on the basis of wlfich insurance has been obtained and the manner of determining that value; and ~ f. The expiration date of the policy. In addition, Borrower shall upon request by Lender at Borrower's expense have an independent appraiser satisfactory to Lender determine, as applicable, the cash value or replacement cost of the Collateral. Other Covenants, Representations and Warranties. None ARTICLE VI BORROWER'S WAIVERS Except as otherwise required under this Agreement or by applicable law, a. Borrower agrees that Lender need not tell Borrower about any action or inaction Lender takes in connection with this Agreement; b. Borrower assumes the responsibility for being and keeping informed about the Collateral; and c. Borrower waives any defenses that may arise because of any action or inaction of Lender, including without limitation any failure of Lender to realize upon the Collateral or any delay by Lender in realizing upon the Collateral; and Borrower agrees to remain liable under the Note and the Indebtedness no matter what action Lender takes or fails to take under this Agreement. Borrower waives all requirements of presentment, protest, demand, and notice of dishonor or nonpayment to Borrower, any Guarantor or any other party to the Indebtedness or the Collateral. ARTICLE VII BORROWER'S RIGHT TO POSSESSION AND TO COLLECT ACCOUNTS ,-: 007 8 Until default and except as otherwise provided below with respect to accounts and above in the paragraph titled "Transactions Involving Collateral", Borrower may have possession of the tangible personal property and beneficial use of all the Collateral and may use it in any lawful maturer not inconsistent with this Agreement or the Related Documents, provided that Borrower's right to possession and beneficial use shall not apply to any Collateral where possession of the Collateral by Lender is required by law to perfect Lender's security interest in such Collateral. Until otherwise notified by Lender, Borrower may collect any of the Collateral consisting of accounts receivables. At any time and even though no Event of Default exists, Lender may exercise its rights to collect the accounts and to notify account debtors to make payments directly to Lender for application to the Indebtedness. If Lender at any time has possession of any Collateral, whether before or after an Event of Default, Lender shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if Lender takes such action for that purpose as Borrower shall request or as Lender, in Lender's sole discretion, shall deem appropriate under the circumstances, but failure to honor any request by Borrower shall not of itself be deemed to be a failure to exercise reasonable care. Lender shall not be required to take any steps necessary to preserve any rights in the Collateral against prior parties, nor to protect, preserve or maintain any security interest given to secure the Collateral. ARTICLE VIII LENDER'S EXPENDITURES If any action or proceeding is commenced that would materially affect Lender's interest in the Collateral or if Borrower fails to comply with any provision of this Agreement, the Note or any Related Documents, including but not limited to Borrower's failure to discharge or pay when due any amounts Borrower is required to discharge or pay under this Agreement, the Note or any Related Documents, Lender on Borrower's behalf may (but shall not be obligated to) take any action that Lender deems appropriate, including but not limited to discharging or paying all taxes, liens, security interests, encumbrances and other claims, at any time levied or placed on the Collateral and paying all costs for insuring, maintaining and preserving the Collateral. All such expenditures incurred or paid by Lender for such purposes will then bear interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by Borrower. All such expenses will become a part of the Indebtedness and, at Lender's option, will: (A) Be payable on demm~d; (B) Be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (1) the term of any applicable insurance policy; or (2) the remaining term of the Note; or (C) Be treated as a balloon payment, which will be due and payable at the Note's maturity. The Collateral also will secure payment of these amounts. Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon Default. ARTICLE IX EVENTS OF DEFAULT Each of the following shall Constitute an Event of Default under this Agreement: Default on Indebtedness. Failure of Borrower to make any payment when due on the Indebtedness. Other Defaults. Failure of Borrower to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement, the Note or in any of the Related Documents or failure of Borrower to comply with or to perform m~y term, obligation, covenant or condition contained in any other agreement between Lender and Borrower. If any failure, other than a failure to pay money, is curable and if Borrower has not been given a prior notice of a breach of-the same provision of this Agreement within the preceding twelve (12) months, ,'":00739 information as Lender may require, including without lhnitation names and addresses of account debtors and agings of accounts and general intangibles. Insofar as the Collateral consists of equipment and inventory, Borrower shall deliver to Lender, as often as Lender shall require, such lists, descriptions, and designations of such Collateral as Lender may require to identify the nature, extent, and location of such Collateral. Such information shall be submitted for Borrower and each of its subsidiaries or related companies when applicable. Maintenance and Inspection of Collateral. Borrower shall maintain all tangible Collateral in good condition and repair. Borrower will not commit or permit damage to or destruction of the Collateral or any part of the Collateral. Lender and its designated representatives and agents shall have the right at all reasonable times to examine, inspect, and audit the Collateral wherever located. Borrower shall immediately notify Lender of all cases involving the return, rejection, repossession, loss or damage of or to any Collateral; of any request for credit or adjustment or of any other dispute arising with respect to the Collateral; and generally of all happenings and events affecting the Collateral or the value or the an~ount of the Collateral. Taxes, Assessments and Liens. Borrower will pay when due all taxes, assessments and liens upon the Collateral, its use or operation, upon this Agreement, upon any promissory note or notes evidencing the Indebtedness, or upon any of the other Related Documents. Bon-ower may withhold any such payment or may elect to contest any lien if Borrower is in good faith conducting an appropriate proceeding to contest the obligation to pay and so long as Lender's interest, in Lender's opinion, in the Collateral is not jeopardized. Compliance With Governmental Requirements. Borrower shall comply promptly with all laws, ordinances and regulations of all governmental authorities, now or hereafter in effect, applicable to the ownership, production, disposition, or use of the Collateral. Borrower may contest in good faith any such law, ordinance or regulation and withhold compliance during any proceeding, including appropriate appeals, so long as Lender's interest in the Collateral, in Lender's opinion, is not jeopardized. Hazardous Substances. Borrower represents m~d warrants that the Collateral never has been, and never will be so long as this Agreement remains a lien on the Collateral, used for the generation, manufacture, storage, transportation, treatment, disposal, release or threatened release of any hazardous waste or substance, as those terms are def'med in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No. 99-499 ("SARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 49 U.S.C. Section 6901, et seq., or other applicable state or Federal laws, rules, or regulations adopted pursuant to any of the foregoing or intended to protect human health or the environment ("Environmental Laws"). The representations and warranties contained herein are based on Borrower's due diligence in investigating the Collateral for hazardous wastes and substances. Borrower hereby: Releases and waives any future claims against Lender for indemnity or co. ntribution in the event Borrower becomes liable for cleanup or other costs under any Enviromnental Laws, and Agrees to indemnify and hold harmless Lender against any and all claims and losses resulting from a breach of this provision of this Agreement, or as a result of a violation of any Environmental Laws. This obligation to indemnify shall survive the payment of the Indebtedness and the satisfaction of this Agreement. Maintenance of Casualty Insurance. Borrower shall procure and maintain all risks insurance, including without limitation fire, theft and liability coverage together with such other insurance as Lender may require with respect to the Collateral, in form, amounts, coverages and basis reasonably acceptable to Lender and issued by a company or companies reasonably acceptable to Lender. Borrower, upon request of Lender, will deliver to Lender from time to thne the policies or certificates of insurance in form satisfactory to Lender, including stipulations that coverages will not be cancelled or diminished without at least thirty (30) days' prior written notice to Lender and not including any disclaimer of the insurer's liability for failure to give such a notice. Each insurance policy also shall include an endorsement providing that coverage in favor of Lender will not be impaired in any way by any act, omission or default of Borrower or any other person. In connection with all policies covering assets in which Lender holds or is offered a security interest, Borrower will provide Lender with such loss payable or other endorsements as Lender may require. If Bon'ower at any time fails to obtain or lnaintain any insurance as required under this Agreement, Lender may (but shall not be obligated to) obtain such insurance as Lender deems Borrower covenants, represents and warrants to Lender as follows: ..... -00740 Power and Authority. Borrower has the full right, power and authority to enter into this Agreement, to execute the Note and the Related Documents and to pledge the Collateral to Lender. Perfectiou of Security Interest. Borrower authorizes Lender to file one or more £mancing statements and such other documents as Lender may requh'e and to take whatever other actions as Lender may deem necessary to perfect and continue Lender's security interest in the Collateral. Upon request of Lender, Borrower will deliver to Lender any and all of the documents evidencing or constituting the Collateral, and Borrower will note Lender's interest upon any and all chattel paper if not delivered to Lender for possession by Lender. Borrower hereby appoints Lender as its irrevocable attorney-in-fact for the purpose of executing any documents necessary to perfect or to continue the security interest granted in this Agreement. Lender may at any time, and without further authorization from Borrower, file a carbon, photographic or other reproduction of any financing statement or of this Agreement for use as a financing statement. Borrower will rein~burse Lender for all expenses for the perfection and the continuation of the perfection of Lender's security interest in the Collateral. Borrower promptly will notify Lender of any change in Borrower's name including any change to the assumed business names of Borrower. This Loan mid Security Agreement will continue in effect until the Indebtedness is paid in full. No Violation. The execution and delivery of this Agreement will not violate any law or agreement governing Borrower or to which Borrower is a party, and its partnership agreement, articles of incorporation or operating agreement, wlfichever is applicable, does not prohibit any term or condition of this Agreement. Enforceability of Collateral. To the extent the Collateral consists of accounts, contract rights, chattel paper, or general intangibles, the Collateral is e~fforceable in accordance with its terms, is genuine, and complies with applicable laws concerning form, content and mmmer of preparation and execution, and all persons appearing to be obligated on the Collateral have authority and capacity to contract and are in fact obligated as they appear to be on the Collateral. At the time any account becomes subject to a security interest in favor of Lender, the account shall be a good and valid account representing an undisputed, bona fide indebtedness incurred by the account debtor, for merchandise held subject to delivery instructions or theretofore shipped or delivered pursuant to a contract of sale, or for services theretofore perforn~ed by Borrower with or for the account debtor; there shall be no setoffs or counterclaims against any such account; and no agreement under which any deductions or discounts may be claimed shall have been made with the account debtor except those disclosed to Lender in writing. Removal of Collateral. Borrower shall keep the Collateral (or to the extent the Collateral consists of intangible property such as accounts, the records concerning the Collateral) at Borrower's address shown above, or at such other locations as are acceptable to Lender. Except in the ordinary course of business, including the sales of inventory, Borrower shall not remove the Collateral from its existing locations without the prior written consent of Lender. To the extent that the Collateral consists of vehicles, or other titled property, Borrower shall not take or permit any action which would require registration of the vehicles outside the State of Wyoming, without the prior written consent of Lender. Transactions Involving Collateral. Except for inventory sold or accounts collected in the ordinary course of Borrower's business, Borrower shall not sell, offer to sell, or otherwise transfer or dispose of the Collateral. Unless waived by L~nder, proceeds from any disposition of the Collateral (for whatever reason), in an amount equal to the remaining Indebtedness, shall be held in trust for Lender and shall not be commingled with any other funds; provided however, this requirement shall not constitute consent by Lender to any sale or other disposition. Upon receipt, Borrower shall immediately deliver the amount equal to the remaining Indebtedness to Lender. Title. Borrower represents and warrants to Lender that it holds (or upon acquisition shall hold) good and marketable title to the Collateral, free and clear of all liens and encumbrances except for the lien of this Agreement. No financing statement covering any of the Collateral is on file in any public office other than those which reflect the security interest created by this Agreexnent or to wlfich Lender has specifically consented. Borrower shall defend Lender's rights in the Collateral agahist the claims and demands of all other persons. Collateral Schedules and Locations. As often as Lender shall require, and insofar as the Collateral consists of accounts and general intangibles, Borrower shall deliver to Lender schedules of such Collateral, including such '00741 assemble the Collateral and make it available to Lender at a place to be designated by Lender. Lender also shall have full power to enter upon the property of Borrower to take possession of and remove the Collateral. If the Collateral contains other goods not covered by this Agreement at the time of repossession, Borrower agrees Lender may take such other goods, provided that Lender makes reasonable efforts to return them to Borrower after repossession. Sell the Collateral. Lender shall have full power to sell, lease, transfer, or otherwise deal with the Collateral or proceeds thereof in its own name or that of Borrower. Lender may sell the Collateral at public auction or private sale. Unless the Collateral threatens to decline speedily in value or is of a type customarily sold on a recognized market, Lender will give Borrower reasonable notice of the time after which any private sale or any other intended disposition of the Collateral is to be made unless Borrower has signed, after an Event of Default occurs, a statement renouncing or modifying Borrower's right to notification of sale. The requirements of reasonable notice shall be met if such notice is given at least ten (10) days before the time of the sale or disposition. All expenses relating to the disposition of the Collateral, including without linfitation the expenses of retaking, holding, insuring, preparing for sale and selling the Collateral, shall become a pm't of the Indebtedness secured by this Agreement and shall be payable on demand, with interest at the Note rate from date of expenditure until repaid. Appoint Receiver. Lender shall have the right to have a receiver appointed to take possession of all or any part of the Collateral, with the power to protect and preserve the Collateral, to operate the Collateral preceding foreclosure or sale, and to collect the Rents from the Collateral and apply the proceeds, over and above the cost of the receivership, against the Indebtedness. The receiver may serve without bond if permitted by law. Lender's right to the appointment of a receiver shall exist whether or not the apparent value of the Collateral exceeds the Indebtedness by a substantial amount. Employment by Lender shall not disqualify a person from serving as a receiver. Collect Revenues, Apply Accounts. Lender, either itself or through a receiver, may collect the payments, rents, income, and revenues from the Collateral. Lender may at any time in its discretion transfer any Collateral into its own name or that of its nominee and receive the payments, rents, income, and revenues therefrom and hold the same as security for the Indebtedness or apply it to payment of the Indebtedness in such order of preference as Lender may determine. Insofar as the Collateral consists of accounts, general intangibles, insurance policies, instruments, chattel paper or similar property, Lender may demand, collect, receipt for, settle, compromise, adjust, sue for, foreclose, or realize on the Collateral as Lender may deternfine, whether or not Indebtedness or Collateral is then due. For these purposes, Lender may, on behalf of and in the name of Borrower, receive, open and dispose of mail addressed to Borrower; change any address to which mail and payments are to be sent; and endorse notes, checks, drafts, money orders, documents of title, instruments and items pertaining to payment, shipment, or storage of any Collateral. To facilitate collection, Lender may notify account debtors and obligors on any Collateral to make payments directly to Lender. Obtain Deficiency. If Lender chooses to sell any or all of the Collateral, Lender may obtain a judgment against Borrower for any deficiency remaining on the Indebtedness due to Lender after application of all amounts received from the exercise of the rights provided in this Agreement. Borrower shall be liable for a deficiency even if the transaction described in tlfis subsection is a sale of accounts or chattel paper. Other Rights and Remedies. Lender shall have all the fights and remedies of a secured creditor under the provisions of the Unifom~ Commercial Code, as may be anaended from time to time. In addition, Lender shall have and may exercise any or all other rights and remedies it may have available at law, in equity, or otherwise. Cunmlative Remedies. All of Lender's rights and re~nedies, whether evidenced by this Agreement, the Note or the Related Documents or by any other writing, shall be cumulative and may be exercised singularly or concurrently. Election by Lender to pursue any remedy shall not exclude pursuit of may oilier remedy, and an election to make expenditures or to take action to perform an obligation of Borrower under this Agreement, after Borrower's failure to perform, shall not affect Lenders fight to declare a default and to exercise its remedies. "00742 ARTICLE XI MISCELLANEOUS PROVISIONS The following miscellaneous provisions are a part of this Agreement: Amendments. This Agreement, together with the Note and any Related Documents, constitutes the entire understanding and agreement of th[~ parties as to the matters set forth in this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Applicable Law. LENDER AND BORROWER HEREBY WAIVE THE RIGHT TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER LENDER OR BORROWER AGAINST THE OTHER. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF WYOMING. IF THERE IS A LAWSUIT, BORROWER AGREES TO SUBMIT TO THE JURISDICTION OF LINCOLN COUNTY, WYOMING. Attorneys' Fees; Expenses. Borrower agrees to pay upon demand all of Lender's costs and expenses, including attorneys' fees and legal expenses, incurred in com~ection with the preparation or enforcement of this Agreement. Lender may pay someone else to help enforce this Agreement, and Borrower shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (and including efforts to modify or vacate any automatic stay or injunction), appeals, and m~y anticipated post-judgment collection services. Borrower also shall pay all court costs and such additional fees as may be directed by the court. Caption tIeadings. Caption headings in this Agree~nent are for convenience purposes only and are not to be used to interpret or def'me the provisions of this Agreement. Multiple Parties; Corporate Authority. If Borrower consists of more than one person or entity, all obligations of Borrower under this Agreement shall be joint and several, and all references to Borrower shall mean each and every Borrower. This means that each of the persons signing below as "Borrower" is responsible for all obligations in this Agreement. Where any one or more of the parties are corporations or partnerships or limited liability companies, it is not necessary for Lender to h~quire into the powers of any of the parties or of the officers, directors, partners, managers, members or agents acting or purporting to act on their behalf. Notices. All notiCes required to be given under this Agreement shall be given in writh~g and shall be effective when actually delivered or when deposited in the United States' mail, lb'st class, postage prepaid, addressed to the party to whom the notice is to be given at the address shown above. Any party may change its address for notices under this Agreement by giving formal written notice to the other parties, specifying that the purpose of the notice . is to change the party's address. To the extent permitted by applicable law, if there is more than one Borrower, notice to any Borrower will constitute notice to all Borrowers. For notice purposes, B°rrower agrees to keep Lender h~formed at all times of Borrower's current address(es). Power of Attorney. Borrower hereby appoints Lender as its true and lawful attorney-in-fact, in'evocably, with full power of substitution to do the following: a. to demand, collect, receive, receipt for, sue and recover all sums of mon/ey or other property which may now or hereafter become due, owing or payable from the Collateral; b. to execute, sign and endorse any and all claims, instruments, receipts, checks, drafts or warrants issued in payment for the Collateral; c. to settle or compromise any and all clahns arising under the Collateral, and, in the place and stead of Borrower, to execute and deliver its release and settlement for the claim; and d. to file any clain~ or claims or to take any action or institute or take part in any proceedings, either in its own name or in the name of Borrower, or otherwise, which in the discretion of Lender may seem to be necessary or advisable. '"00743 it may be cured (and no Event of Default will have occurred) if Borrower, after Lender sends written notice demanding cure of such failure, cures the failure witltin thirty (30) days. False Statements. Any warranty, representation or statement made or furnished to Lender by or on behalf of Borrower under this Agreement is false or misleading in any material respect, either now or at the time made or furnished. Defective Collateralization. This Agreement, the Note or any of the Related Documents ceases to be in full force and effect (including failure of any collateral documents to create a valid and perfected security interest or lien) at any time and for any reason. Death. The death of Borrower (or a member or partner of Borrower); provided, however, that if Lender determines in its reasonable discretion that its interests are not materially impaired, Lender shall permit the deceased's estate to assume unconditionally the obligations arising under this Agreement in a manner satisfactory to Lender, and, in doing so, cure the Event of Default. Insolvency. The insolvency of Borrower, the appointment of a receiver for any part of Borrower or Borrower's property; any assignment for the benefit of creditors; the dissolution of Borrower, the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower and such proceeding is not dismissed within thirty (30) days. Creditor Proceedings. Cmmnencement of foreclosure, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower against the Collateral or any other collateral securing the Indebtedness. This includes a gamislnnent of any of Borrower's deposit accounts with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor proceeding and if Borrower gives Lender written notice of the creditor proceeding and deposits with Lender monies or a surety bond for the creditor proceeding, in an an~ount determined by Lender, in its sole discretion, as being m~ adequate reserve or bond for the dispute. Events Affecting Guarantor. Any Guarantor seeks, clain~s, or otherwise attempts to lhnit, modify, or revoke such Guarantor's guaranty with Lender or any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or such Guarantor dies or becomes incompetent; provided, however, that if Lender detern~ines in its reasonable discretion that its interests are not materially impaired, Lender shall permit the Guarantor's estate to assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure the Event of Default. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or perfommnce of the Indebtedness is impaired. Insecurity. Lender, in good faith, deems itself insecure. Other Events of Default. None ARTICLE X RIGHTS AND REMEDIES ON DEFAULT If an Event of Default occurs under this Agreement, at any time thereafter, Lender shall have all the rights of a secured party under the Uniform Commercial Code. In addition and without limitation, Lender may exercise any one or more of the following rights and remedies: Accelerate Indebtedness. Lender may declare the entire Indebtedness, including any prepayment penalty, which Borrower would be required to pay, immediately due and payable, without notice. Asse~nble Collateral. Lender may require Borrower to deliver to Lender all or any portion of the Collateral and any and all certificates of title and other documents relating to the Collateral. Lender may require Borrower to -.00744 This power is given as security for the Indebtedness, and 'the authority hereby conferred is and shall be irrevocable and shall remain in full force and effect until renounced by Lender or the Indebtedness is paid in full. Severability. If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable as to any person or circumstance, such fmding shall not render that provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such offending provision shall be deemed to be modified to be within the limits of enforceability or validity; however, if the offending provision cannot be so modified, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable. It is understood and agreed that the terms, conditions and covenants of this Agreement would have been made by both parties if such offendh~g provision had not been included herein Successor h~terests. Subject to the limitations set forth above on transfer of the Collateral, this Agreement shall be binding upon and inure to the benefit of the parties, their successors and assigns. Waiver. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Agreement shall not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Borrower, shall constitute a waiver of any of Lender's rights or of any of Borrower's obligations as to any future transactions. Whenever the consent of Lender is required under this Agreement, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. Time of the Essence. Time is of the essence hereof. Waiver of CO-obligor's Rights. If more than one person is obligated for the Indebtedness, Bon-Ower irrevocably waives, disclaims and relinquishes all claims against such other person which Borrower has or would otherwise have by virtue of payment of the Indebtedness or any part thereof, specifically including but not limited to all rights of indemnity, contribution or exoneration. BORRO'WER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS LOAN AND SECURITY AGREEMENT, AND BORROWER, AGREES TO 1TS TERMS. THIS AGREEMENT IS DATED August/16/2005. Borrower: . .~t~.fl~f.~~ State of WYOMING County of Lincoln B ~ ~.~z~'"_ ~-~7 ~ . Ackn.0!al~glf~e~d hgf-0re me by Howard Woods and orrower: ....~/~4J.~' ~ zr J~a~5~;T~%~---~--Tr~-.~ ~ - - v- '-%~ ~ :~ A ~ ~m~~a~yrA~p~eJ ugusC 11, 2005. · Oou Of 'tn~t ha an ficial seal ACIGNOWLED~tj~D AND AOREED: ~ ~x ~ ~ ~ . =~-=~-~==~=~"=~-'-~~qo~ry Public L e ~l.~r .'~V~_~ ~c~~_~ By: Lester Barber Title: Owner ~f WYOMING ~ ~~~ll~l~_~~_d~ed before me by Lester Barber Witn~Cs my hand and official seal.