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HomeMy WebLinkAbout916886 COOt)51 ð6 RECEIVED 3/23/2006 at 3:52 PM RECEIVING # 916886 BOOK: 615 PAGE: 51 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY (; JEANELLE LIVINGSTON MORTGAGE ~.l . ~JELLE E LIVIN . Executed on day -.1.5...- of M::Jrrn , A.D. 7.00ñ by JAMES AND LIVINGSTON. HUSBAND AND WIFE hereinafter called the Mortgagee, to BANKERS HEALTHCARE GROUP. INC., AND/OR ITS ASSIGNS, whose address is 1840 MAIN STREET, SUITE 102 WESTON. FLORIDA 33326 hereinafter called the Mortgagor as security for payments due under a PROMISSORY NOTE referenced as Agreement #457648 hereafter referenced within this agreement a PROMISSORY NOTE. executed on day ~ of M::Jrrn ,A.D. 70nfi (Whenever used herein the terms "mortgagor" and "mortgagee" include singular and plural, all parties to this instrument and heirs, legal representatives and assigns of individuals, and the successors and assi~ns of corporations, wherever the context so admits or requires; and the term "note" includes all the notes herein described if more than one. The commercial loan may be prepaid at any time. An earty payoff will be based on the present value of The remaining payments, using a Ixed rate at the time of funding, equivalent to 1% above the five (5) year u.s. treasury bond rate. All other terms and conditions of the original promissory note and guarantee(s) remain in full force Witnesseth, that for good and valuable considerations, and also in consideration of the aggregate sum $50,000.00 named in the PROMISSORY NOTE of even date herewith, hereinafter described, the mortgagor hereby grants, bargains, sells, aliens, remises, conveys and confirms unto the mortgagor all the certain land of which the mortgagee is now seized and in possession situate in LINCOLN County. State of WY. SEE EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF \ \ ~t I' Folio No.: i (1 f '1 ) Together with all structures and improvements which now are or may hereafter be located on said land and fixtures attached thereto, and rents, issues, proceeds, and profits accruing and to accrue from said premises, all of which are included within the foregoing description and the habendum thereof also all gas, steam., electric, water and other heating, lighting, air conditioning, plumbing, ventilating, irrigating, refrigeration equipment, and power systems. machines, appliances, and appurtenances, which now are or may hereafter pertain to, or be used with, in, or on said premises, even though they be detached or detachable, and if the above described property is now or shall hereafter be used for commercial purposes then the furniture and furnishings and any replacements thereof which may be owned by the mortgagee's and which are now or may hereafter be located upon the above described property. To have and to hold the same, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversions, remainders, rents, issues, and profits thereof and also all the estate, right title, interest, homestead, dower and right of dower, separate estate, possession, claim and demand whatsoever, as well in law as in equity, of the said mortgagee in and to the same, and every part thereof unto the said mortgagor in fee simple. And the mortgagee hereby covenants with the mortgagor, that he/she is indefeasibly seized of said land in fee simple, that he has full power and lawful right to convey the same in fee simple as aforesaid, that it shall be lawful for the mortgagor, at all times peaceably and quietly to enter upon, hold, occupy, and enjoy said land, and every part thereof that title to the property hereby mortgaged is free from all liens and encumbrances accept the lien hereof which is a first lien on said property, unless otherwise accepted in writing by the mortgagor, that he/she will make such further assurances as may be reasonably required by the mortgagor to prove or perfect fee simple title to said property and that he does hereby fully warrant the title to all property hereby mortgaged and will defend the same against the lawful claims of all persons whomsoever. Provided always that if mortgagee shall pay unto the mortgagor the indebtedness evidenced by that certain PROMISSORY NOTE of which the attached Exhibit "B" is a copy, and shall duly, promptly, and fully perform, discharge, execute, effect, complete, and comply with and abide by each and every the stipulations, agreements, conditions, and covenants of said PROMISSORY NOTE and of this mortgage, then this mortgage and the estate hereby created shall cease and be null and void. And the mortgagee does hereby'covenant and agree: 1. To pay all and singular the principal and interest and other sums of money payable by virtue of said PROMISSORY NOTE and this mortgage, or either, on the due dates thereof and to perform, comply with and abide by each and every the stipulations, agreements, conditions, and covenants in said lease agreement and this mortgage set forth, and to pay all costs, charges and expenses, including attorney's fees and costs of abstracts of title, Incurred or paid by the holder hereof because of the failure of the maker to comply with '(.-....." Page 1 of 4 ;:::¡::~:::::~:::::;:: tI1~~~J ::~~I~;~~mm~~~ i O'91.688b r 00 J '\ 5 2 \.' I \i the covenants and conditions and the secured hereby. DOCUMETARY STAMP TAXES HAVE BEEN PAID ON PROMISSORY NOTE OF EVEN DATE 2. To pay all and singular the taxes, assessments, municipal liens, levies, liabilities and obligations of every nature on said described property when due and payable, before they become delinquent, and to deliver to the mortgagor, on or before March 15th of each year, tax receipts evidencing the payment of all lawfully imposed taxes for the preceding calendar year, and if the same shall not be promptly paid, the mortgagor may at any time, either before of after delinquency, pay the same without waiving affecting the option to foreclose or any other right hereunder. 3. To keep all property encumbered by this mortgage insured in a company or companies approved by the mortgagor against loss by fire, windstorm and other hazards, in such amounts and for such periods as may be required from time to time by the mortgagor. Such policy or policies shall be held by the mortgagor and shall contain a clause making the moneys due thereunder payable to the mortgagor to the extent of its interest. The mortgagee covenants to pay promptly any premiums which may be due and, in the event of failure so to do, the mortgagor may pay such premiums or obtain other insurance and pay the premiums therefore without waiving or affecting its option to foreclose or any other right hereunder. The mortgagee agrees to deliver renewal policies of insurance to the mortgagor at least ten (10) days prior to the expiration of existing policies. In the event any moneys become payable under such policy or policies, the mortgagor shall have the option to receive and apply the same on account of the indebtedness hereby secured, or permit the mortgagee to receive and use the same, or any part thereof, for other purposes, without waiving or impairing any equity, lien or right under and by virtue of this mortgage. 4. To permit, commit, or suffer no waste, impairment or deterioration of said property, or any part thereof and upon the failure of the mortgagee to keep the buildings on said property in good condition of repair and maintenance, the mortgagor may demand proper maintenance and the immediate repair of said buildings, or an increase In the amount of security, or the immediate repayment of the debt hereby secured, or the mortgagor may at its option make such repairs or cause the same to be made and advance the necessary monies for such purpose. 5. To comply with all ordinances applicable to the mortgaged property, not to make or permit to be made any structural alterations to any of the existing improvements thereon without the written consent of the mortgagor. 6. Until default in the performance of any of the covenants or agreements of this mortgage and the PROMISSORY NOTE payments which it secures, the mortgagee shall be entitled to collect the rents, issues and profits firm the premises hereby mortgaged. In the event of a default in any of the terms of this mortgage and the filing of a bill to foreclose this mortgage, the mortgagor shall be entitled to apply at any time without notice, pending such foreclosure suit, to the court having jurisdiction thereof for the appointment of a receiver of all and singular the mortgaged property and of all the rents, incomes, profits, issues and revenues thereof from whatsoever source derived, and thereupon it is hereby expressly covenanted and agreed that the court may forthwith appoint a receiver for said mortgaged property, and of such rents, incomes, profits, issues and revenues thereof with the usual powers and duties of receivers in like cases, and such appointment shall be made by such court as a matter of strict right to the mortgagor, and without reference to the adequacy or inadequacy of the value of income., issues and revenue shall be applied by the receiver to the payment of the mortgage indebtedness, costs and charges, according to the order of such court. 7. That in the event the title of the mortgaged premises, or any part thereof becomes vested in a person or persons other than the mortgagee, the mortgagor may, without notice to the mortgagee, deal with such successor or successors in interest with reference to this mortgage and the debt hereby secured, in the same manner as with the mortgagee without in any way vitiating or discharge the mortgagee's liability hereunder. No sale of the premises hereby mortgaged and no forbearance on the part of the mortgagor, and no extension by the mortgagor of the tune for the payment of the debt hereby secured, shall operate to release, discharge, modify, change or affect the original liability off the mortgagee herein, either in whole or in part. 8. The mortgagor is hereby subrogated to the lien or liens, and to the rights of the owner and holder thereof of Page 2 of 4 itials , '.' 00U5 3 0916886 each and every mortgage, lien or other encumbrances on the land described herein, which is paid and satisfied, in whole or in part, out of the proceeds of the loan described herein or secured hereby. 9. That if any of the sums of money herein referred to are not paid within thirty (30) days next after the same severally become due and payable, or if each and every the stipulations, agreements, conditions and covenants of said PROMISSORY NOTE and this mortgage, or either, are not duly performed, complied with and abided by, all sums remaining unpaid under said PROMISSORY NOTE and this mortgage shall become due and payable forthwith, or thereafter, at the option of die mortgagor, as fully and completely as if the aggregate sums of money were originally stipulated to be paid on such day, anything in said PROMISSORY NOTE or herein to the contrary notwithstanding, and thereupon and thereafter at the option of said Mortgagor, without notice or demand, suit at law or in equity may be prosecuted. 10. The mortgagor, at its option, and without waiving its right to accelerate the indebtedness hereby secured and to foreclose the same, either before or after delinquency, may pay and do any or all of those certain obligations required by the forms hereof to be paid or done by the mortgagee. All sums so advanced or paid by the mortgagor shall immediately become due and payable and shall be charged to the mortgage account and become an integral part thereof subject in all respects to the terms, conditions, and covenants of the aforesaid PROMISSORY NOTE and this mortgage, as fully and to the same extent as though said sums were a part of the original indebtedness, evidenced by said PROMISSORY NOTE and secured by this mortgage, excepting, however, that said sums shall be repaid the mortgagor forthwith upon its demand and shall be in addition to the regular monthly installment provided by the mortgage All payments which may be made by the mortgagor for taxes, insurance, repairs or otherwise pursuant to the terms of this mortgage shall bear interest from date of its payment at the rate of Eighteen Percent (18.00%) per annum, and this mortgage shall secure the payment of all such sums. 11. That in the event the promises hereby mortgaged, or any pint thereof shall be condemned and taken for public use under the power of eminent domain, the mortgagor shall have the right to demand that all damages awarded for die taking of or damages to said premises shall be paid to the mortgagor to be applied upon the mortgage indebtedness. 12. The terms "mortgagee" and "mortgagor" whenever used in this instrument, shall include the heirs, personal representatives, successors and assigns of the respective parties hereto. Wherever used the singular number shall include the plural and the plural the singular, and the use of any gender shall include all genders. IN WITNESS WHEROF, the Mortgagee has executed this instrument or has caused this instrument to be executed, this Jd.... day of March 2006 WITNESSES AS TO ALL SIGNATURES x.~¡¿'~ Witness Signature . . Gloria K. Byers Printed Name X Witness Signature Printed Name State of Wyoming County of Lincoln I certify that I have satisfactory evidence that James G. Livingston and Jeanelle Livingston aka Jeanelle E. Livingston signed this instrument on March as, 2006. ~k' ~ Page30f4 Gloria K. Byers, Nota ~~ commission expires 9-15-07 ~:¡:~i¡¡~;ilij 091.6886 -00U54 State of Wyoming ) ) ) County of Lincoln The foregoing instrument was acknowledged before me by James Livingston and Jeanelle E. this 15 day of March , ~m~~. Livingstom 2006 At~ ;;. ßy..e~ Notary Public My Commission Expires: 9-15-07 GLORIA K. BYERS. NOTARY PUBUC County of ~ State of Uncoln . Wyoming My CommissIon expires Sept. 15, 2001 0916886 ;~OOU55 EXHIBIT "A" PARCEL 1 LOT 11 OF EASY ACRES SUBDIVISION, PHASE 1, LINCOLN COUNTY, WYOMING AS DESCRIBED ON THE OFFICIAL PART NO. 308 FILED SEPTEMBER 10, 1984 AS INSTRUMENT NO. 622706 OF THE RECORDS OF THE LINCOLN COUNTY CLERK. PARCEL 2 LOT 25 OF STAR VALLEY RANCH PLAT 21, LINCOLN COUNTY, WYOMING AS DESCRIBED ON THE OFFICIAL PLAT THEREOF. Page 4 of 4 ~m¡!i~;~ill~li:¡;~!~ i;:~;~~~mm~~[m;;~i t"\fì(56 u v ~, 0916886 PROMISSORY NOTE ( L.L.C. ) Agreemenl No.: 457848 r COMPLETE NAME AND ADDRESS OF CREDITOR BANKERS HEAL THCARE GROUP, INC. l r CDMPLETE NAME AND ADDRESS OF DEBTOR ASPEN HILLS DENTAL CARE, LL.C. I L 1840 MAIN STREET, SUITE 102 WESTON, FLORIDA 33328 (800) 880-i401 ~. L 800 SOUTH WASHINGTON STREET AFTON, WY, 83110 Telephonoll: 307-i85-4337 -.J The dale 01 this Promissory Note ("Note") Is .200_. The parties and Iheir addresses are as renected above. FOR COMMERCIAL PURPOSES AND VALUE RECEIVED, Debtor does hereby promise 10 pay to Creditor or lis Order, at the address listed above or at such other location as otherwise designated by Creditor, Ihe total sum 01 EIGHTY SIX THOUSAND NINE HUNDRED FORTY DOLLARS and ZERO CENTS ( S 86,940.00 ). which represents Ihe lotal 01 paymenls of principal plus interest due and which will become due hereunder Irom the date 01 this Nole untillhe maturity date of Ihis Note. wh,çh sums shall be payable in monlhly installments. as set lorth In Ihe Addendum herelo. AUTDMATlC PAYMENT·(ACH). All payments In accordance with this Note shall be made in the lorm 01 an ACH Iransfer direclly Irom Ihe Deblor's business account. The Debtor's lermination of an ACH authorization without the Credito(s prior wrillen consent, shall be considered an event of defaull. Shoutd Debtor lerminate an ACH authorization with Ihe consent 01 Creditor, and delivers paymenls by check or other non·ACH form 01 payment. Debtor agrees to pay a service. handling and accounting expense lee 10 Creditor resulling Irom Ihe making of a non·ACH payment In an amount equal 10 fifteen percent (15%) 01 the payment then due. LATE PAYMENT. In Ihe evenl Debtor fails to pay all or any amount to be paid hereunder when due. Debtor will pay Creditor alate charge equal to the lesser of (a) 10% of the payment Ihat is late and (b) Ihe maximum amount permitted by applicable law. The lale charge is nol interest or a penally. but rather is a fee 10 delray administrative costs resulling Irom such late payment. EVENTS OF DEFAULT. In Ihe event of defaull, time being of the essence, Ihe enlire amounl of principallhen unpaid and all unpaid interest shall become. wilhout notice or demand, at the option of the Creditor, Immediately due and payable. Events of Defaull shall include, but not be limited to, (i) any failure of Ihe Deblor 10 pay any principal, inlerest or fee when due: (Ii) any breach or default of any term, condition or warranty of this Note or any other agreement between Debtor and Creditor, whether entered inlo in connection wilh Ihis Note or olherwise, including all representations, warranties and/or statements made by Debtor prior to and pursuant to this Note: (iii) Ihe occurrence of an evenl or events which cause or causes a material adverse change in the financial condition of Debtor or any Guarantor and/or if Deblor or any Guarantor should at any time lail in business: (iv) Ihe failure of Debtor or any Guarantor to immedialely provide wrillen notice to Creditor of any material change in Debtor's or such Guarantor's financial condition: (v) an assessmenl lor taxes levied against Debtor or any Guarantor, other Ihan on real property, made by the federal government or state govemment or any department or agency 01 the federal or stale government; (vi) the filing, voluntarily or involuntarily, by or against the Debtor or any endorser on or eny Guarantor of this Note of any case or petitic, under Ihe provisions 01 any bankruptcy or insolvency law: (vii) any appoinlment of a receiver. truslee, or assignment lor Ihe benefil 01 creditors by or lor Debtor or any Guarantor hereof; (viii) the issuance 01 a writ of execulion, gamishment, attachment, seizure or other legal or administralive process againsl any 01 the Debtor's property or deposit accounts: (ix) a sale of subslanlially all 01 Ihe Debto(s assets, a material change (other than financial) in the Debtor, a volunlary or involuntary dissolution of Debtor or the filing of a petition 10 dissolve Ihe Debtor: (x) any disabilily 01 Guarantor lasting more than ninety (90) days or the death 01 Guaranlor: and, (xi) Ihe sale of Iwenty-five (25%) or more of Ihe Interest (whether stock, partnership or otherwise) in Debtor. Creditor shall have all rights, oplions and remedies of a secured party available pursuant to this Note. Ihe Security Agreement and as a malter 01 law. INTEREST ON DEFAULT. If any Installmenl 01 principal and interest is not received by Credilor by the payment due date. or if the outstanding loan balance is nol paid in lull at malurily. interest shall accrue under this Nole beginning on the day aller the due date at Ihe maximum annual interesl rate provided as a mailer of law In Ihal urisdiclion. In no evenl shall the in teres I charged hereunder exceed Ihe Highest Lawful Rate, as defined herein. Highesl Lawful Rele shall mean, at the particular time in queslion, Ihe maximum rale of interest which, under applicable State law, Creditor, or order, is Ihen permilled to charge Ihe Debtor on this Nole. If the maximum rale 01 inleresl which Creditor or order, is permitted to charge Debtor on this Note shall change after the date hereof. Ihe Highest Lawful Rete shall aulomalically be increased or decreased, as Ihe case may be. from time to lime as 01 the effective date of each change in Ihe Highest Lawful Rete without notice 10 Deblor. For purposes of determining Ihe Highest Lawful Rele under applicable State law, Ihe applicable rale ceiling shall be the indicated rale ceiling under the provisions of applicable Slale law; provided. however, thai in determining the Highest Law Rale, all lees and other charges contracled for, charged or received by Credilor. or order, In connection with Ihe loan evidenced by this Note which are either deemed interest under applicable State law or required under applicable State law 10 be deducted from the principal balance hereol 10 determine the rate 01 inlerest charged on this Note shall be laken inlo accounl. If Ihe calcutation of interest or Ihe imposllion of a change in Ihe rale 01 interest aller acceleration upon defaull or Ihe payment of any fees or other charges which are construed to be inleresl under applicable Slate law, rule, or regulation in effect Irom lime to lime. result in an effeclive rate of inlerest higher than that permitted to be paid under applicable Slate law. rule. or regulation in effed Irom lime to timè, Ihen such charges shall be reduced by a sum sufficient to result in an effective rate of inleresl no greater than Ihe maximum effective rale of interest permilted to be paid under applicable State law. rule or regulation in effect from time 10 lime. The Creditor may, in determining the maximum rate permitted under applicable law, rule, or regulation in effecl from lime to lime, take advanlage of (1) the rate of interest permitted by applicable Stale law and 12 Uniled Stales Code, Sections 85 and 86. and (ii) any other law, rule or regulalion In effect from lime to lime. available to Creditor which exempts Creditor Irom any limit upon the rate of interesl it may charge or granls to Creditor the right to charge a higher rate 01 inlerest than Ihal permilted by applicable Stale law. In Ihe eventlhat Debtor has or believes that there exists a claim for usury againsl Credilor. Debtor shall notify Creditor in wriling 01 the existence of the same not less than forty-five (45) days prior to the instilulion of any action based Ihereon. The failure to provide such written notification is a mandatory condilion precedent to such an action and Ihe faiiure to provide such nolice shall act as an absolule bar to any such action or claim. Upon maturity of Ihis Note, whelher by acceleration or in due course, interesl shall be recalculaled over Ihe acluallile of Ihe foan based upon the amounts outstanding. and if the 10lal amount of Interest theretolore paid exceeds Ihe amount permitted 10 be paid under applicable law. rule, or regulalion in effect Irom lime 10 lime. the excess shall be crediled 10 Principal, or if such excess exceeds the Principal amount due hereunder, relunded to Ihe Debtor. WAIVER. Debtor hereby waives presentment, notice of nonpayment or dishonor, protest, notice of protest, demand and all olher nolices in connection with Ihe delivery, acceptance, performance, delault or enforcement of this Note. The Credilor shall not be deemed, by any act 01 omission or commission, 10 have wa,ved any of its rights or remedies hereunder unless such waiver is in wriling and signed by such holder and Ihen only to the exlenl specifically sel forth in writing. A waiver wilh relerence 10 one event shall nol be conslrued as continuing or as a bar to or waiver 01 any righl or remedy as to a subsequenl event. No delay or omission of Ihe Creditor to exercise any right, whether before or aner a default hereunder, shall impair any such right or shall be conslrued to be a waiver of any righl or default, and the acceptance al any time by Ihe holder hereof 01 any pasl due amount. whelher in full or in part, shall not be deemed 10 be a waiver of the right 10 require prompt paymenl when due of any other amounts Ihen or Ihereafter due and payable. TERMINA TtON. Upon payment in full of all principal and atl Interest as provided in Ihis Nole, Ihis Nole shall be deemed cancelled and terminaled. SECURITY. As an Inducement for Creditor to provide financing and as a material term 01 Ihis Nole, Debtor shall execute concurrenUy herewilh a Security Agreement in favor of Creditor. The terms and conditions of the Security Agreement shall be incorporated herein by Ihis relerence and made a part of Ihis Note es though lully sel forth herein. ASSIGNMENT. Wilhout the prior wrilten consent of Creditor. Debtor shall not sell, lease or allow any lien other than Credilor's security interest against an Item of Collaleral or assign any of Debto(s obligations hereunder. Debto(s obligalions hereunder are nol assignable by operation of law. Creditor may at any time, in its sole discretion, assign or olherwise trensfer Ihis Note or any of ils rights or obligations under Ihis Note, wilhoul nolice 10 Deblor. If Deblor is given notice of such assignment, Debtor shall acknowledge Ihe receipt of Ihe assignment in writing and shalllhereafter pay any amounts due hereunder as direcled in the notice. The rights of the assignee 10 amounls due hereunder shall be free of any claim or defense Deblor may have against Creditor, and Debtor knowingly, voluntarily and intentionally agrees to waive and not assert againsl any assignees any claim or defense Debtor mayor does have against Creditor. TIME IS OF THE ESSENCE. Time Is of Ihe essence hereof upon the occurrence of an Event 01 Default hereunder the holder hereof may exercise all rights and remedies provided lor herein, and by law including, bul not limited to, Ihe right to make all principal remaining on this Note and all other sums under or in respect of Ihis Note immediately due and payable, wilhoul nolice 01 defaul\, presenlment or demand for paymen\, protest or nolice of nonpaymenl or dishonor, or other nolices or demands 01 any kind or character, excepl as ~~ ~ ,lIlkì ~- -PR>nIinory Nolo . P... 1 '" 2 lnilia! 091.68S6 cnn(~7 \.' \, \ OJ APPLICABLE LAW/ARBITRATION. The lerms of this Note shall be governed by and construed in accordance wilh the substanUve and procedure laws of the Stale 01 Flonda. exclusive of the principles of connict of laws. Except as 10 any action againsl brought specifically against the collateral. or any security agreemenl or mortgage securing the same. the parties agree that any action brought to enlorce any of the terms, or to recover for any breach. whether based in tort, contract or otherwise, relating to or arising oul of this Note. or any other loan document related thereto or executed in conjunction herewilh, shall be submitted to arbitration before the American Arbitration Association for a triat of all issues of law and fact. unless Credilor or ils assignee selects an alternative forum. Venue for any action brought hereunder, whether in arbitration or otherwise. shall be in Broward County, Florida. In the event that the American Arbitration Association ceases 10 exist, then the parties agree that all disputes which otherwise would have been submitted to arbitration shall be submitted to a State of Florida Court in Broward County, Florida, or, if the action involves or is brought against the Collaterat, in a state court in the county where such Collaleral is located, where required 10 enforce Creditor's rights as to or against the Collateral, unless Creditor selects an atternative forum. Debtor agrees to submit to the personal jurisdiclion 01 the appropriate State of Florida Court for all such disputes. Debtor expressty waives personal service <if process and authorizes service of process on Debtor by registered mad or certified mail or certified mail or overnight detivery by a national detivery service sent to its address as set forth in the introductory paragraph of this Agreement or such other manner as may be permitted under the senl to its address as set forth in the introductory paragraph of this Agreement or such other manner as may be permitted under the rules of Ihe American Arbitration Association. The Debtor further waives any right the Debtor may have to transfer or change the venue of any litigation brought against Deblor by Creditor, the right to interpose any defense or motion based on Forum Non Conveniens or Venue, and any ctaim for consequential, punitive or special damages. THE DEBTOR AND ALL OTHERS WHO MAY BECOME LIABLE FOR ALL OR ANY PART OF THIS OBLIGATION, JOINTLY AND SEVERALLY, WAIVE AND RENOUNCE THEIR RIGHT TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION OR PROCEEDING, INCLUDING AS TO COUNTERCLAIM BROUGHT BY OR AGAINST DEBTOR ON ANY MATTERS WHATSOEVER ARISING FROM THIS NOTE, THE SECURITY AGREEMENT, AND ANY OTHER DOCUMENTS AND AGREEMENT EXECUTED IN CONJUNCTION WITH THIS CREDIT TRANSACTION, IN CONTRACT, IN TORT OR OTHERWISE. THE TERMS OF THIS JURY TRIAL WAIVER AND DEBTOR'S AGREEMENT HERETO tS A MATERIAL INDUCEMENT TO CREDITOR TO ENTER INTO THIS TRANSACTION. DEBTOR FURTHER WAIVES ANY RIGHT TO REMOVE ANY STATE COURT ACTION TO FEDERAL COURT. In case of any action taken and/or suit or legal proceeding Instituted by the Creditor or any designee to enforce the collection of amounts Jue under this Note, all costs and expenses incurred, including reasonable attornay fees and costs, shall be paid by Debtor and shall become 50 much additional Indebtedness as secured by this Note. NO PREPAYMENT: DEBTOR HAS NO RIGHT OF PREPAYMENT, EITHER IN PART OR IN FULL, HEREUNDER. As an inducement for Creditor to provide commercial financing to Debtor and as a material term of this Note, Debtor agrees to and shalt repay the principal and interest In strict accordance with the terms and conditions of this Note, including as to the schedule of installment payments, with no right to or of offset for pre-payment. DEBTOR'S OBLlGATtON TO PAY ALL SCHEDULED INSTALLMENTS OF PRINCIPAL AND INTEREST WITHOUT THE RIGHT OF PREPAYMENT IS ABSOLUTE AND UNCONDITIONAL UNDER ALL CIRCUMSTANCES. If Creditor agrees to Ihe modification or this Note 50 as to permit any such prepayment, and subject 10 Ihe terms of any addenda hereto, this commerciatloan may then be pre-paid by Debtor. An early payoff or prepaymenl of the obtigation evidenced hereby shall be computed based upon the lerms and conditions set forth in any addendum or modifications hereto, which is incorporated herein and made a part hereof. Partial prepayment of this Note shalt not be permitted, except in Credito(s sole discretion. In. the evenl of the making of any attempted prepayment by Debtor, without having firsl secured a modification to this Note 50 as to allow the same, any such payment of funds in excess of the scheduled installment amount due delivered by Debtor shall be received by Creditor and applied by Creditor to Debto(s account as the advance payment of future installments of principal and interest due under this Nole. Creditor may, at its option, apply the same in such manner upon receipl, or retain such excess funds in escrow to be applied at the time any such future Installment comes due. The receipt and acceptance of any prepayment or the apptication thereof in a manner other than as set forth herein shall not serve or be construed as a waiver of Creditor's right to refuse to accept a partial prepayment thereafter. THIS NOTE IN NON-CANCELABLE. INSURANCE. Debtor shall procure and mainlain property damage insurance against all risks from every cause whalsoever in the amounl of the replacement cost 01 the Specific Property Collateral and public liability and property damage insurance covering the Specific Property Collaleral in a sufficient amount, and from insurance companies satisfactory to Creditor. The insurance policy shall be in the joinl name of Deblor and Creditor, wilh Creditor being named as an additional insured party. Upon the renewal of each policy, and at such other limes as Creditor may olherwlse request, Debtor shall deliver copies of the policies to Creditor. The policies shall further provide for the giving of thirty (30) days notice to Credilor prior 10 any alteration or cancellation of the þolicies and shall provide full breach of warranty prolection, if appropriate and be primary and without contribullon from any insurance maintained by Creditor. The Debtor hereby appoints Creditor as the Debtor's altorney-in-fact 10 make claim for, receive paymenl of, and do all acls necessary to collect the proceeds of such insurance. Such proceeds shall be the sole property of the Creditor and shall be used for the repair and replacement of the Collateral or toward payment of the Debto(s obligations under this Agreement, at the $ale option of Creditor. In the event of an assignment of this Agreement of which Debtor receives notice. Deblor shall cause such insurance to provide the same protection to the assignee as its interest may appear. NOTICE. Any notice 10 Creditor will be effective only on its receipt by Creditor. Any requirement of giving notice to Debtor may be sent by mailing the notice, postage prepaid; by hand-delivery or by nationally recognized overnighl delivery service to the Debtor at the address stated in this agreement. Debtor shall be deemed 10 have received any notice posted with the United States Postal Service on the eartier of the third (3") business day after the posting of the nolice or the date of actuat receipt. In the evenl of delivery by hand or by overnight delivery service, Debtor shall be deemed to have received any such notice on the date of actual delivery of the same. FURTHER ASSURANCES. Debtor shall provide all documents necessary 10 perfect, protect and preserve Credito(s rights and interest as set forth in this Note, including providing all financing statemenls and other similar documenls. Debtor shall provide Creditor during the term of this Note, all financial information and statements wllhin ten (10) days of each aMlversary dale of this Note or within thirty (30) days of written request for the same by Creditor. Debtor agrees to cooperate with Credilor and shall execute such additional documents as Creditor reasonably requests to correct any errors or miscalculations, reptace lost of missing documenls, or to facilitate the sale or assignment of this Note. the Security Agreement and other related loan documents, or the servicing Ihereof. In the event anyone or more of the provisions contained in this documenl shall, for any reason, be held to be inapplicable, invalid, illegal or unenforceable in any respect, such inapplicability, invalidity, illegality or unenforceability shall, at the option of the Creditor, not affect any other provision of Ihis document, but this document shall be construed as if such applicable, invalid, illegal or unenforceable provision had never been contained herein or therein. By execution hereof, the DEBTOR does acknowledge that this 15 a commercial Iransaction, and that the DEBTOR is in fact a business, and that all necessary licenses, permits, registrations and other documentations have been filed with the proper authorities, such that the business is in comptiance with state and local laws for the locality of the DEBTOR. Furthermore, DEBTOR does hereby ecknowledge that any and all proceeds of this Agreement shall be used for expenses. projects, purchases or other financial transactions associated with and for the benefit of the DEBTOR. ENTIRE AGREEMENT. This Nole, the Security Agreement and the related loan documents executed conlemporaneously therewith constitute the entire agreement of the parties as to the subject matler and shall not be amended, altered, or changed except by a written agreement signed by the parties. Any waiver by Creditor must be on wnling, and forb~ara ce shall nol be construed nor constitute a waiver. If there is more than one Debtor named in this Note, the liability of each shall be joont and several. The obligations pursua r? this Note shall su,:,,::~e release of the security interest In the Collateral. Debtor represents and warrants all Information Debtor has submllted to Credllor 15 complete and e 1"d thai this Note has -r-::,. duly authorized by Debtor and on execution, shall conslitute Ihe legal. valid and blndy~bli9atlon of the Debtor. - 'G:ç~~~~ 506·21·2900 ~'\ "Iur. Tor. JAMES G. LI~STON ·MANAGING MEMBER Dale ~/ SODa! SecuflV Numb.. / ASPEN HILLS PENT AI. CARE, L.L.C. 800 SOUTH WASHINGTON STREET AFTON, WY 83110 Sue. Addren. City, Sate Zip Code 307 ·886-5524 Home Phone Number NOTAR't;iL _......:_. 5....01 1'Y~11I'_ JAMES G. LIVINGSTON ColOUyo' ~'t".ìI.~~_~!I!]I~!!!I¡¡!~ I œltly !hat I have satisfactory .vid.nce lhal Is the person that Is the person who appeared before me, and said person acknowledged thai (helshe) signed this in$ùumenl and a~"'''~.:._W_~~7:)~.j'?~VOlunlaly ad 'Ollhe ..... and purpo... m.ntioned in lhe lostr......". ~~__,.,,:i.jI!i.~".., .... EIIL'1lìîlUiIIMI ...m~_ Sagnalur. O. My Commission Expre$ (Stamp or Seal) X Autwfiled lignabe rer: BANKERS HEAL THCARE GROUP. INC. Tide Da" (!!~. "Promasal)' Note" GLORIA K. BYERS· NOTARY PUBLIC County of ~ State of Uncaln W Wyoming My CommIssIon expires Sept 15, 2007 Page2012 . -. r8::::~i:rt:*:::::::::; '·¡·II.' I,I,lli' ',"I" '~¿'..