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MORTGAGE AND SECURITY AGREEMENT
OOû517
THIS MORTGAGE is made this g day of November, 2008 between Countrv Develooment. LLC a
WYOmll¡¡ limited liability corooration or¡¡anized under the laws of the State ofWyominl!. whose Wyoming address is
PO Box 1269. 49 Twin SDruce Business Park. Afton. WY 83110 (hereinafter collectively referred to as
"Mortgagor," whether one or more parties), and the Wyoming Business Council, successor agency to the ~
Wvoming Division of Economic and Conununitv DeyeloDment whose address is 214 W. 15'" St.. Cheyenne. WY
~,(hereinafter "Mortgagee").
WITNESSETH:
l. WHEREAS, Tenuoah. LLC. a Wvominl!. limited liability corooralion has executed and delivered a
Promissory Note (hereinafter sometimes "Note") dated May 12. 1995 for the principal sum of EIGHT HUNDRED
THOUSAND AND NOIIOO Dollars ($800.000.00) payable to the order of State of Wvominl! Divisioll of Economic
and Conununitv Develooment, its successors and assigns, whose address is 214 W. 15'h St., Cheyenne, WY 82002,
with interest thereon at the rate set Ollt in said Note, as the same might be modified from time to time.
2. WHEREAS, Tenuoah LLC. a Wyominl!. limited liability corooration has also executed and delivered a
Modification of Promissory Note (hereinafter sometimes "Note") on October 19, 2000 and one dated November 4.
2004. for the principal sum of SIX HUNDRED FORTY ONE THOUSAND ONE HUNDRED SIXTY TWO AND
QMlQQ Dollars ($641.162.08) payable to the order of State of Wvominl!. Division of Economic and Communitv
DeveloDment. its successors and assigns, whose address is 214 W. 15'" St., Cheyenne, WY 82002, with interest
thereon at the rate set out in said Note, as the same might be modified from time to time,
3. WHEREAS, Marvin Lee Schwab, individually, Joel Frome Merritt, individually, and Polyguard LLC, have
executed and delivered a Continuing Guaranty (hereinafter sometimes "Guaranty") dated May 12, 1995 guaranteeing
100% of all indebtedness of Tenupah to Mortgagee, its successors and assigns, and all extensions or renewals of said
indebtedness as more specifically set forth in said Guaranty.
4. WHEREAS, Marvin Lee Schwab and Joel Frome Merritt gave a mortgage dated May 12, 1995, on Lots 4
and 5 of Twin Spruces Subdivision Lincoln County, Wyoming as described on the official plat thereof, as security
for the Note.
5. WHEREAS, M. Lee Schwab owns one-humiIed percent of ù¡e shares of and is an officer and director of
Polyguard, Inc.
6. WHEREAS, M. Lee Schwab is a manager and officer of Country Development, LLC and Tenupah, LLC,
7, WHEREAS, one hundred percent (100%) of Country Development, LLC is owned by Rocky Mountain
Products Company, LLC.
9, WHEREAS, M, Lee Schwab is a manager and officer of Rocky Mountain Products, LLC.
10. WHEREAS, one hundred percent (100%) of Rocky Mountain Products, LLC is owned by M. Lee Schwab.
II. WHEREAS, Country Development agrees to be bound by the tenTIS of the Promissory NOle(s) and the two
Modification(s) of Promissory Note incorporated herein by reference and attached as Exhibit A (the
"Instrument(s)"), and any default on said note(s) by Schwab or Tenupah, LLC constitutes a default under the tenTIS
of said note(s) and this agreement and mortgage as more fully set forth below;
12. AND WHEREAS, the Mortgagor desires to secure payment of the above-described indebtedness evidenced
by the Instrument(s) marked hereinabove to the payee or holder thereof (the payee and subsequent holders of said
Instrument(s) being hereinafter referred to as "Mortgagee"),
NOW THEREFORE, said Mortgagor, in consideration of these promises and for the purposes aforesaid, to
secure the above-described and marked indebtedness, does hereby mortgage, with power of sale, the following
described property, situated in the County of l.inglli¡, State of Wyoming, to-wit:
Lot 6 of Twin Spruces Subdivision, Lincoln County, Wyoming as described on the official plat
thereof
TOGETHER WITH all buildings and improvements now or hereafter erected on the property; all
rents, issues, revenues, profits, royalties, income and other revenue derived from the property; all leasehold estate,
right, title and interest of Mortgagor in and to all leases or subleases covering the property or any portion thereof
now or hereafter existing or entered into and all right, title and interest of Mortgagor in all leases, pennits,
allotments, licenses and privileges, whether or not appurtenant to the property, from the United Slates or the State of
Wyoming or any department or agency of either for the purpose of grazing, pasturing or feeding livestock on any of
the public lands of the United States or the State of Wyoming;
TOGETHER WITH all easements, rights-of-way, privileges and appurtenances, and all other rights
of Mortgagor in connection with the property, now or hereafter acquired, including but not limited to the rights of
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reversion and remainder; and all furniture, fixtures and equipment now and hereafter located thereon including but
not limited to all shades, wall-to-wall carpeting, screens and screening, awnings, plants, shrubs, fencing, landscaping,
elevators, plumbing material, gas and electric equipment, and all heating, cooling, air conditioning and lighting
fixtures, equipment and apparatus now or hereafter attached to or fonning a part of the property, all of which shall be
deemed realty and conveyed hereby;
TOGETHER WITH all water rights, conditional water rights and applications for pernÜts that are
appurtenant to or have been used or intended for use in cOlUlection with the property, including but not limited to (i)
ditch, well, pipeline, spring and reservoir rights, whether or not adjudicated, evidenced by stock or shares, or
evidenced by any well or other pennit, (ii) all rights with respect to noncontributory groundwater underlying the
Property, (iii) any pennit to construct any water well, water from which is intended to be used in cOlU1ection with the
property, and (iv) all of Mortgagor's right, title and interest under any decreed or pending plan of augmentation or
water exchange plan,
TOGETHER WITH all replacements, substitutions, and additions to the foregoing, all of which
property is hereafter referred to in this mortgage as the "Property."
MORTGAGOR covenants and agrees as follows:
1. Covenants of Title: ComDljance With Lease, The Mortgagor, for itself and for its
successors and assigns, covenants and agrees that it is lawfully seized of the Property in fee simple (unless
Mortgagor's estate above described is expressly limited to an estate for years), and has good right, full power and
lawful authority to mortgage, grant, and convey the Property as provided herein. Mortgagor further warrants that the
Property is tree and clear of all liens and encumbrances whatsoever except those already recorded with the office of
the County Clerk and ex-officio Register of Deeds in and for Lincoln County, State of Wyoming, and except ad
valorem taxes for the current year not yet due and payable, and the Property is in the quiet and peaceable possession
of said Mortgagor, its successors and assigns, and against all and every person or persons lawfully claiming or to
clain! the whole or any part thereof, the Mortgagor shall and will warrant and forever defend.
If the above-described Property is a leasehold estate, Mortgagor shall faithfully perfonn each and
every covenant and obligation of Mortgagor's lease and shall pennit no breach or default of such lease to occur or to
continue to e¡¡ist.
2. Pavrnent of Principal and Interesl' Late Charl!es' and Prepavn!ent Fees. If the makers of
the Instrument(s) referenced herein shall default under the tenns said Instrument(s), Mortgagor shall promptly pay
the indebtedness to Mortgagee when due, under the tenns of the Instrument(s) referenced above, including any late
charges due thereunder and prepayment fees (if any) provided therein,
3. Payment of Taxes and Prior Encumbrances. During the continuance of indebtedness or
any part thereof under the Instrument(s) referenced above, the Mortgagor will timely pay all taxes, assessments,
charges, fmes and penalties levied on the Property (including water andlor water company stock assessments and
periodic condominium or homeowner association dues or assessments, if any) and all amounts due or to become due
on account of principal and interest on prior encumbrances, if any (unless otherwise set forth below).
6. InsDection and ADDraisal. So long as this Mortgage remains in force and effect, the
Mortgagee shall have the right at all reasonable times to inspect the Property given as security for the Instrument(s)
and all applicable books and records related thereto. Mortgagor shall also furnish at its cost, as Mortgagee may
request from time to time a new or up-dated appraisal for said Property,
7. Insurance of Premises. Mortgagor will keep all buildings on said lands and all other
property hereinabove described insured against loss by fire, lightning, windstorn!, tornado, flood and boiler
explosion or malfunction, public liability, business interruption and such other causes as may be required by
Mortgagee in an amount satisfactory to the Mortgagee and by an insurance company satisfactory to Mortgagee,
Mortgagor will deliver to the Mortgagee the policy or policies of insurance, with a standard mortgage clause in favor
of Mortgagee attached thereto as further security tor the indebtedness aforesaid. In the event of loss or damage, the
proceeds of all such insurance may be applied to the payment of the indebtedness secured hereby or to the repair.
rebuilding, or replacement of the improvements damaged or destroyed, as the Mortgagee in its sole discretion may
elect or direct. If the proceeds of such insurance are to be applied to repair, rebuilding or replacement of
improvements, the proc,eeds shall be retained in the possession of the Mortgagee until the said repair, rebuilding and
replacement is substantially complete, in the sole judgment of the Mortgagee.
8. Hazardous Substances Including Asbestos, Mortgagor hereby warrants that the above
described Property is not now nor has it ever been the site of storage, manufacture, generation, disposal or release(s)
of hazardous substances, as said tenns and actions are defined under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S,C. Section 9601-9657, as amended from time to time, or as said
tenns and actions are defmed by any other or similar federal, state, or local environmental statute, ordinance,
regulation, or guideline, or any other violations which might result in responsibilities and liabilities thereunder,
Mortgagor further warrants that neither Mortgagor nor its employees, agents, contractors, sub-contractors, invitees.
or representatives shall cause the release of hazardous substances, or use, generate, manufacture, store, transport or
dispose of any hazardous substances on, under, or about the Property without Mortgagee's express written approval
of each such event, which approval may be withheld by Mortgagee in its sole discretion. If Mortgagee gives its
Pag. 2 or7
00ü51B
written approval for perfonnance of activity involving hazardous substances, Mortgagor agrees at all times to
comply fully and m a timely manner, and to cause all employees, agents, contractors, sub-contractors, invitees, or
representatives of Mortgagor or any other person occupying the Property to so comply, with all present and future
applicable federal, state and local statutes, regulations, ordinances and guidelines relating thereto. In no event shall
Mortgagee be held responsible for any violations as a result of its consent to said activity. Mortgagor further
warrants that any buildings located on said Property comply with current federal, state and local regulations,
ordmances, guidelines and statutes governing asbestos containing material. Mortgagor agrees that any disturbance of
the asbestos containing material in the building shall be done in full compliance with any federal, state, or local
regulations, ordmances, guidelines and statutes, Mortgagor hereby indemnifies and holds Mortgagee hannless from
and against any and all claims, losses damages, liabilities, fines, penalties, actions causes of action, charges,
administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of
any kind, and all costs and expenses (including, but not limited to, attorney fees and consultant fees, and clean-up
costs attributable to removal of hazardous substances from the Property) incurred in connection with hazardous
substances, including without limitation asbestos containing materials, which Mortgagee may incur or suffer as a
result of violation by Mortgagor of any covenant in this paragraph, The warranties and indemnities contained in this
paragraph shall survive the release of this Mortgage and payment of the Instrument(s) secured hereby. This
agreement to indemnify and hold hannless shall be in addition to any other obligations or liabilities that Mortgagor
may have to Mortgagee at common law, or by statute, or otherwise. Mortgagor shall notify Mortgagee in writing
munediately of any discovery or release or threatened release of any hazardous substance, including but not limited
to, asbestos fibers, on, in, under, or about the Property.
9. Mineral EXDloration and Development. Mortgagor agrees to make no conveyance
whatever in connection with the exploration of oil and gas or other minerals on said Property and to refrain from
such activity, unless Mortgagee should consent m writing to any such conveyance or activity. Mortgagor further
agrees that it will prosecute any cause or causes of action diligently and to final conclusion arising from the damages
to the Property resulting £Tom the exploration for gas and oil or other minerals located thereon in such a manner as to
cause damage thereto, which are recoverable in law or in equity under the laws of Wyoming, applying the proceeds
to the debt secured by this Mortgage; provided, however, Mortgagor, with the written consent of the Mortgagee, may
make such settlements out of Court as may be deemed just and equitable to the parties concerned.
10. SDecial Districts, Mortgagor shall give Mortgagee prompt written notice of (a) the
proposed creation of any improvement district, or county, municipal, or quasi-governmental district of any nature,
and (b) of any action m respect to such district or any cWTently existing district, which may affect the Property,
including, without limitation, any proposed service plan or modification of such plan, proposed organization of such
district and election in regard to such district organization, the proposed issuance of bonds or other evidence of
mdebtedness by such district, whether such issuance is for a refinancing or for the issuance of new bonds or other
evidence of mdebtedness, and the proposed inclusion of the Property in any such district. Mortgagor may exercise its
right to vote at any public election held for such a purpose without the consent or approval of Mortgagee. However,
Mortgagor shall not othelWise consent to the creation of any such district or take any such action with respect to a
district which may affect the Property without Ù¡e prior written consent of the Mortgagee, which consent shall not be
unreasonably withheld.
11. Americans With Disabilities Act. Mortgagor hereby warrants that the above described
Property is not now m violation of the requirements of the Americans With Disabilities Act of 1990, 47 U,S.c.
Section 12101, ~ .Kg, ("ADA"), as amended from time to time, or any regulations promulgated thereunder.
Mortgagor further warrants that any alterations to the Property or new construction on the Property shall be
completed in confonnance with the ADA.
12. Sale or Encumbrance of the ProDerty, In the event the Mortgagor shall sell, convey,
alienate or dispose of the Property described in this Mortgage, any part thereof or any interest therein (including, but
not linúted to, outright conveyance, conveyance or alienation of any interest in the Property or any part thereof by
land installment contract or contract for deed, conveyance of any corporate interest of Mortgagor, and alienation of
any interest in the Property by lease or rental agreement with option to purchase), the entire obligation evidenced by
the Instrument(s) secured by this Mortgage, irrespective of the maturity date(s) expressed therein, shall, at the option
of the Mortgagee and without delay or notice, immediately become due and payable, If the said indebtedness is
accelerated by reasol) of sale, conveyance, alienation or disposal of the Property or any part thereof, the indebtedness
as accelerated shall include as a part of the principal balance any interest accrued at the rate set forth in said
Instrument.
In the event the Mortgagor shall further voluntarily or involuntarily encumber the Property
described in this Mortgage by virtue of the creation of a lien or encumbrance junior to the lien of this Mortgage
without the prior written consent of the Mortgagee hereunder, the entire obligation evidenced by the Instrument(s)
secured by tills Mortgage, irrespective of the maturity date(s) expressed therein, shall, at the option of the Mortgagee
and without delay or notice, become inunediately due and payable. The consent of the Mortgagee to such further
encumbrance shall not be unreasonably withheld, subject to the tenns of the Loan Documents. Nothing in this
paragraph shall, however, lin1it the ability of the Mortgagee hereunder to withhold consent to alienation of the
Property as set forth hereinabove.
13. Prosecution or Defense of Action Affectimz Obli~ation or Lien. If Mortgagor fails to
perfonn the covenants and agreements contamed in this Mortgage, or if any action or proceeding is cOllU11enced
willch affects Mortgagee's interest in the subject Property or the validity of the Instrument(s) secured hereby
including, but not limited to, actions in eminent domain, code enforcement, insolvency or arrangements or
Page) of7
00&519
proceedings involving bankruptcy or a decedent's estate, or actions by parties claiming an interest senior and
paramount to the lien of this Mortgage, or if it becomes necessary for Mortgagee to file an action to uphold or defend
the lien of this Mortgage, then Mortgagee shall have the right to employ its own legal counsel to defend, pursue,
compromise, negotiate, or prevent any such litigation and all sums e1lpended by Mortgagee, including reasonable
attorneys' fees and other costs in cOlUlection with any such legal action, shall become 50 much additional
indebtedness secured by this Mortgage. The failure of the Mortgagor to pay the Mortgagee all such sums expended
immediately upon demand shall entitle the Mortgagee, at its option, to declare the entire indebtedness to be al once
due and payable.
14. Forbearance: Substitution of Collateral: Partial Releases. It is understood and agreed that
the Mortgagee may, at any time, without notice to any person, grant to the Mortgagor any indulgences or
forbearance, grant an extension of time for payment of any indebtedness secured hereby, or allow any change or
changes, substitution or substitutions, of or for any of the Property described in this Mortgage or any other collateral
which may be held by Mortgagee, Mortgagee's action in doing so shall in no way affect the liability of the
Mortgagor, any endorsers of the indebtedness secured hereby or any other person liable for the payment of said
indebtedness, including gurarantors nor shall it in any way atTect or impair the lien of this Mortgage upon the
remainder of the Property and upon other collateral which is not changed or substituted. It is also understood and
agreed that the Mortgagee may, at any time, without notice to any person, release any portion of the Property
described in this Mortgage or any other collateral which may be held as security for the payment of the indebtedness
secured hereby either with or without consideration for such release or releases, Such releases shall not in any
malUler affect the liability of the Mortgagor, all endorsers and all other persons who are or shall be liable for the
payment of said indebtedness, nor shall said releases in any malUler affect, disturb or impair, the validity and priority
of this Mortgage, for the full amount of the indebtedness remaining unpaid together with all interest and advances
which shall become payable, upon the remainder of the Property and other collateral which is unreleased, It is
distinctly understood and agreed by the Mortgagor and the Mortgagee that any release or releases may be made by
the Mortgagee without the consent or approval of any person or persons whomsoever.
15. Securitv Al1.reement: Personaltv, Mortgagor and Mortgagee agree that this Mortgage
shall constitute a Security Agreement within the meaning of the Wyoming Uniform Conunercial Code (hereinafter in
this paragraph referred to as the "Code") with respect to any now existent or hereafter acquired personal property,
including but not limited to, building materials, accounts, accounts receivable, contract rights, general intangibles,
fixtures, equipment, goods, documents, farm products, inventory, rents, proceeds, chattel paper, or instruments
owned by tl1e Mortgagor, its successors or assigns and affi1led to, located upon or used in conjunction with the
above-described Property, which property mayor may not be deemed to form a part of the above-described Property
or mayor may not constitute a "fixture", including but not limited to all (a) heating, air conditioning, freezing,
lighting, laundry, incinerating and power equipment, engines; pipes; pwnps; tanks; motors; conduits; switchboards;
plumbing, lifting, cleaning, fire prevention, fire extinguishing, refrigerating, ventilating, cooking, and
communications apparatus; boilers, water heaters, ranges, furnaces and burners, appliances, vacuum cleaning
systems; elevators; shades; awnings; screens; storm doors and windows; stoves; refrigerators; attached cabinets;
partitions; ducts and compressors; rugs and carpets; draperies; landscaping and all additions thereto and
replacements therefor; (b) all water rights and conditional water rights that are appurtenant to or that have been used
or are intended for use in connection with the Property, including but not limited to (i) ditch, well, pipeline, spring
and reservoir rights, whether or not adjudicated or evidenced by any well or other permit, (ii) all rights with respect
to noncontributory groundwater underlying the Property, (iii) any permit to construct any water well, water from
which is intended to be used in cOlUleclÌon with the Property, and (iv) all of Mortgagor's right, title and interest under
any decreed or pending plan of augmentation or water exchange plan; (c) all goods, fixtures, building and other
materials, tools, supplies, and other tangible personal property of every nature now owned or hereafter acquired by
Mortgagor and used, intended for use, or usable in the construction, development, or operation of the Property,
whether located on the Property or elsewhere, together with all accessions thereto, replacements and substitutions
therefor and proceeds thereof; (d) all permits, licenses and tTanchises which have value in cOlUlection with the
ownership or operation of the Property; (e) all site plans, plats, architectural plans, specifications, work drawings,
surveys, engineering reports, test borings, market surveys and other work products relating to the development of the
Property; (I) all present and future contracts and policies of insurance which insure the Property or any building,
structures or improvements thereon, or any such fixtures or personal property, against casualties and theft, and all
monies and proceeds and rights thereto which may be or become payable by virtue of any such insurance contracts or
policies; (g) all compensation, proceeds or awards for the taking of title to or possession or use of the property or any
such buildings, structures, improvements, fixtures or personal property or any part thereof; (h) all rents, issues,
income and profits of and from the Property including, but not limited to, contracts for purchase of all or part of the
Property between Mortgagor and third parties and all leases and tenancies now or hereafter affecting said real estate;
(i) all products and proceeds of all of the foregoing (said property and the replacements, substitutions and additions
thereto and the proceeds thereof being hereinafter collectively referred to as the "Collateral"). A security interest in
and to the Collateral is hereby granted to the Mortgagee and all of the Mortgagor's right, title and interest therein are
hereby assigned to the Mortgagee, all to secure payment of the indebtedness secured hereby and to secure
performance of the terms, covenants and provisions thereof. In the event of a default under this Mortgage, Mortgagee
shall have the option of proceeding with respect to the Collateral as to both real and personal property in accordance
with its rights and remedies with respect to the real property, in which event the default provisions of the Code shall
not apply. In such event, Mortgagee's bid at the foreclosure sale shall be deemed to be a bid for both the real and
personal property. The deed issued in such sale shall also constitute a bill of sale for the said personal property.
Mortgagor shall not be entitled to redeem either the real or personal property separate one from the other. The
parties agree that, in the event the Mortgagee shall elect to proceed with respect to the Collateral separately from the
real property described herein, five (5) days' notice of the sale of the Collateral shall be reasonable notice. The
reasonable expenses of retaking, holding. preparing for sale, selling and the like incurred by the Mortgagee shall
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include, but not be limited to, reasonable attorneys' fees and legal expenses incurred by Mortgagee, The Mortgagor
agrees that, without the written consent of the Mortgagee, Mortgagor will not remove or pennit to be removed from
the real property any of the Collateral except that, so long as Mortgagor is not in default hereunder, Mortgagor shall
be pennitted to sell or otherwise dispose of the Collateral when obsolete, worn out, inadequate, unserviceable or
unnecessary for the use in the operation of the real property, upon replacing the same or substitution for the same
other Collateral at least equal in value to Ihe initial value of that disposed of and in such a manner so that said
Collateral shall be subject to the security interest of this Mortgage and covered hereby. Mortgagor shall, from time to
time, on request of the Mortgagee, deliver to the Mortgagee an inventory of the Collateral in reasonable detail.
Mortgagor covenants and represents that all Collateral, and all replacements thereof, substitutions therefor or
additions thereto, unless the Mortgagee otherwise consents, now is and will be free and clear of liens, encumbrances
or security interests of others.
16. CondeIlUlation, If the above-described Property or any part thereof shall be condenmed or
taken under the power of eminent domain, all damages and awards for the Property so taken shall be applied, at the
option of the Mortgagee, either to the repayment of the indebtedness secured hereby or to the rebuilding, repair and
restoration of the lands and/or improvements damaged by said taking. Any balance of such damages or awards
remaining after application as above set forth shall be paid over to the Mortgagor.
17, Events of Default. Upon the occurrence of any of the following events, with respect to
any Mortgagor hereunder or any assignee, maker, endorser or guarantor of any of the foregoing described
Instruments: calling a meeting of creditors; application for, or appointment of, a receiver of any of them or their
property; filing of a voluntary or involuntary petition under any of the provisions of the United Slates Bankruptcy
Code or amendments thereto; issuance of a warrant or an attaclunent; entry of a judgment; failUTe 10 pay, collect or
remit any ta;'( or tax deficiency, federal, state or local, when assessed or due; death; dissolution; making, or sending
notice of an intended bulk sale; suspension or liquidation of their usual business; failure, after demand, to furnish
fmancial infonnation or to pennit inspection of any books or records by Mortgagee; default in payment or
perfonnance of any Instrument or violation or breach of any of the tenns, conditions, covenants or agreements herein
contained or contained within an agreement for assignment of rents or security agreement by separate document; or if
the condition or affairs of any of the foregoing parties shall change as in the opinion of Mortgagee or other legal
holder thereof, shall adversely affect its credit risk; then the Instruments secured hereby and all other obligations,
direct or contingent of any Mortgagor, assignee, maker, endorser or guarantor hereof to Mortgagee shall become due
and payable immediately without notice or demand,
18, Acceleration. Foreclosure and Sale: Deficiencv, Upon the occurrence of any Event of Default.
the Mortgagee hereunder may at any time thereafter, at its option, by notice to Mortgagor, declare the entire amount
secured hereby and the interest accrued thereon to be due and payable forthwith without any further notice,
presentment or demand of any kind, all of which are hereby expressly waived.
If the amounts secured hereby are not paid when due, whether by acceleration or otherwise, it shall
be lawful for the Mortgagee to proceed to enforce the provisions of this Mortgage, either by suit at law or in equity,
as it may elect, or to foreclose this Mortgage by advertisement and sale of the above-described Property at public
venue, for cash, according to Wyoming statutes governing mortgage foreclosures, and cause to be executed and
delivered 10 the purchaser or purchasers at any such sale a good and sufficient deed or deeds of conveyance of the
property so sold and to apply the proceeds arising from such sale, first to the payment of all costs and expenses
incurred by the Mortgagee in connection therewith, including, without limiting the generality of the foregoing, court
costs, legal fees and expenses, fees of accountants, engineers, consultants, agents or managers and expenses of any
entry or taking or possession, holding, valuing, preparing for sale, advertising, selling and conveying; second, to the
payment of the amounts secured hereby; and third, any surplus thereafter remaining to Mortgagor or Mortgagor's
successors or assigns, as their interests may be established to Mortgagee's reasonable satisfaction. There shall be
included in any or all such foreclosure proceedings, a reasonable attorney's fee as part of Mortgagee's indebtedness.
In case the Mortgagee shall fail promptly to foreclose upon the occurrence of any event of default, Mortgagee shall
not thereby be prejudiced in its right of foreclosure at any time thereafter during which such default shall continue
and Mortgagee shall not be prejudiced in its foreclosure rights in the case of further default or defaults.
Mortgagor will remain liable for any deficiency owing to Mortgagee after application of the net
proceeds of any foreclosure sale,
19. Possession of the ProDertv, ADDoinunent of a Receiver, In the case of any default or
breach under the tenus and covenants of this Mortgage, the Mortgagee shall at once become entitled to the
possession, use and e~oyment of the Property above-described and to all rents, revenue, income, issues and profits
therefrom, from the date of the accruing of such right and continuing during the pendency of foreclosure proceedings
including any period of redemption. Such possession shall be at once delivered to the Mortgagee or the holder of the
certificate of purchase upon request. Upon refusal, the delivery of such possession may be enforced by the
Mortgagee by an appropriate civil suit or proceeding. The Mortgagee shall be entitled to appointment of a receiver
for said Property to receive the rents, revenue, income, issues and profits therefrom ITom and after any such default,
including the time covered by foreclosure proceedings, as a matter of right without regard to the solvency or
insolvency of the Mortgagor or of the then owner of said Property and without regard to the value of the Property.
Such receiver may be appointed by any court of competent jurisdiction upon ex-parte application and without notice,
notice being hereby expressly waived. All rents, issues, profits, income and revenue from said Property shall be
applied by such receiver to the payment first of the fees and costs of such receivership proceeding and then to the
indebtedness secured hereby. The balance remaining, if any, shall be disposed of in accordance with the orders and
directions of the court. The fees of any such receiver, attorneys' fees incurred in appoinunent of the receiver and
Pagd of7
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administration of the receivership estate and all costs, shall be due and payable upon demand and shall become so
much additional indebtedness secured hereby, Failure to pay said fees and costs upon demand shall be a breach of
the teons of this Mortgage. The rights of Mortgagee under this paragraph shall be in addition to and not in lieu of
any rights existing by virtue of a separate assignment of leases, rents or profits
20. Waiver and Release. Mortgagor hereby irrevocably and unconditionally waives and
releases, to the extent waiver and release are pernlitted by law: (a) all benefits that might accrue to Mortgagor by
virtue of any present or future law exempting the subject property from attachment, levy or sale on execution or
providing for any appraisement, valuation, stay of execution, exemption from civil process or extension of time for
payment; and (b) any right to a marshalling of assets or a sale in inverse order of alienation.
21, MortlZalwr Not Released, Extension of the time for payment, modification of amortization
of the sums secured hereby, a change in interest rate, or any other change in the tenns of the Instrument(s) secured
hereby or this Mortgage, including an assumption hereof, granted by Mortgagee to any successor-in-interest of
Mortgagor shall not operate to release, in any manner, the liability of Mortgagor, nor Mortgagor's
successors-in-interest, from the original teons of this Mortgage. Mortgagee shall not be required to commence
proceedings against such successor or agree to extend time for payment or otherwise modify amortization of the
sums secured by this Mortgage by reason of any demand made by the original Mortgagor or Mortgagor's
successors- in-interest.
22. Time of the Essence, Time is of the essence in this contract and in the event the
Mortgagor or the Mortgagor's heirs, successors or assigns, fails to pay Mortgagee any and all sums due under the
tenns of the Instrument(s) and this Mortgage, or fails to observe and perfonn any of the covenants and agreements
contained in said Instrument(s) or this Mortgage, Mortgagee may, at its option, declare any and all indebtedness
owing thereunder due and payable, and any tax assessments, insurance premiums, or other advances made or paid by
said Mortgagee and not repaid by the Mortgagor shall become an additional indebtedness hereunder and secured by
this Mortgage.
23. Mortl!all.ee's Exoenses. Mortgagor agrees to pay in full all expenses and reasonable
attorneys' fees of Mortgagee which may have been or may be incurred by Mortgagee in connection with the
collection of the amounts-secured hereby and the e¡úorcement of any of Mortgagor's obligations hereunder and under
any Instrument(s) secured hereby. Mortgagor shall indenmify Mortgagee and hold it hannless against, and
Mortgagee shall not be liable for, any loss, cost or danlage, including without limitation, attorneys', consultant.~' or
management fees, resulting from exercise by Mortgagee or any right, power or remedy conferred upon it by this
instrument or any o,ther instrument pertaining hereto, or from the attempt or failure of Mortgagee to exercise any
such right, power or remedy; and notwithstanding any provision hereof to the contrary, the foregoing indemnity shall
in all respects continue and remain in full force and effect even though all indebtedness and other sums secured
hereby may be fully paid and the lien of this instrument released,
24. Notices. The Mortgagor hereby designates as its address for the purposes of receipt of
any notice as provided in this Mortgage the address set out on Page 1 hereof; and agrees that such address shall be
changed only by depositing written notice of such change, with identifying loan number, in a post office or official
depository under the care and custody of the United States Postal Service, certified mail, postage prepaid, return
receipt requested, addressed to the Mortgagee at the address for the Mortgagee set out herein (or to such other
address as the Mortgagee shall designate from time to time). Any notice provided for in this Mortgage shall be
deemed to have been given, and received, when given as provided in this paragraph,
25, Cross-Default, If Mortgagor or anyone or more of the signers and obligors of any of the
Instrument(s) defaults or breaches the tenns and conditions of any other obligation to Mortgagee, howsoever created,
evidenced or arising, whether direct or indirect, absolute or contingent, now or hereafter arising, or due or to become
due, such a default or breach shaU constitute a default or breach under the Instrument(s) secured hereby and this
Mortgage, and all amounts due thereunder, together with all interest thereon, may at once or at any time thereafter, at
the option of the Mortgagee, become due and payable,
26, Successors Bound; Terms: Caotions. The covenants herein contained shall bind, and the
benefits and advantages hereof shall inure to, the respective successors and assigns of the parties hereto, Whenever
used herein, the singular number shall include the plural and conversely, and the use of any gender shall be
applicable to all genders. Assignment or negotiation of the Instrument(s) secured hereby shall also be an assignment
of the Mortgagee's interest under this Mortgage. The captions and headings of this Mortgage are for convenience
only and are not to be used to interpret or define the tenns of this document.
27. Severabilitv' Governinfl: Law: Forum, In the event that any provision or clause of this
Mortgage conflicts with applicable law, such conflicts shall not affect or invalidate other provisions of this Mortgage
which can be given effect without the conflicting provision. To this end, the provisions of this Mortgage are declared
to be severable, The laws of the State of Wyoming shall govern the interpretation, construction and enforcement of
this Mortgage and the Instrument(s) it secures. The courts of the State of Wyoming shall be the forum within which
any and all issues of fact and law concerning the said lnstrument(s) and this Mortgage shall be resolved.
28. Waiver of Homestead. Mortgagor hereby fully and absolutely releases, waives and/or
subordinates all rights and interest Mortgagor may have or acquire in and to the Property under the Homestead
Exemption Laws of the State of Wyoming or by virtue of any law of the United States of America, including without
limitation, those portions of the United States Code dealing with the subject of bankruptcy, now existing or which
may hereafter be passed in relation thereto.
Pag< 6 or7
00&522
29. JURY WAIVER. IT IS MUTUALLY AGREED BY AND BETWEEN MORTGAGOR AND
MORTGAGEE THAT THE RESPECTIVE PARTIES WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING,
OR COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTER
WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS MORTGAGE, THE
PROMISSORY NOTES, GUARANTEES, CREDIT AGREEMENTS, OR LOAN AGREEMENTS, WHETHER ONE
OR MORE, SECURED HEREBY, AND ANY AND ALL OTHER INSTRUMENTS EXECUTED IN CONNECTION
THEREWITH.
IN WITNESS WHEREOF, Ihe Mortgagor has executed this Mortgage and Security Agreemenl the day and year lirsl above
written.
By:
ed liabilily corporalion
ACKNOWLEDGMENT AND VERIFICATION
STATE OF WYOMING )
) ss,
COUNTY OF LINCOLN )
On this -3 day of November, 2008. before me personally appeared Marvin Lee Schwab, to me personally known,
who, being by me duly sworn. did say that he is the President and Executive Officer of Counlry Development. LLC, a Wyoming
corporation and that the seal aflixed to said inslrument is the corporale seal of said corporalion, and that said instrument was
signed and sealed on behalf of said corporation by authotity of its Board of Directors and the said Marvin Lee Schwab. President,
acknowledged said instrument to be the !Tee acl and deed of said corporation.
WITNESS MY HAND AND OFFICIAL SEAL,
-A!:æ0/';~~ /~ ~
Notary Public '
My Commission Expires: 9 - /6- / /
ÍÎ,.,._........"""""f"""""......".·...."""""--'''''''''''''-~~1
~, GLOFHi\ 1'<. 13':Efi~,..; NOlARY PUBLIC'
I f'Y'·
County of'" State of
; Linc~ln ~o, Wyoming:ð
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AFTER RECORDING RETURN TO:
~oming BusÌness Council
~~ ~~~'l~h Street
Cheyenne, WY 82002
Page 7 on
ûOü523
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MODIFICATION OF PROMISSORY NOTE
WHEREAS, heretofore. Tenupah, LLC, a Wyoming Limited Liability Company, of
Afton, Wyoming (hereinafter referred to as "Borrower"), made, executed and delivered to The
State of Wyoming, Division of Economic and Community Development. predecessor to The
Wyoming Business Council (hereinafter referred to as "State"), one Promissory Note dated
May 12, 1995 in the original principal amount of $800,000.00. Borrower also executed and
delivered of same date a loan agreement. real estate mortgage, security agreemen.t and personal
guarantees of M. Lee Schwab. Joel Frome Merritt and corporate guarantee from Polyguard,
LLC.
WHEREAS. said Promissory Note was amended upon mutual agreement by Borrower
and State on October 19, 2000 (a copy is attached to this modification agreement). The current
principal balance owed on the note is $641,162.08. The date of last payment was July 12,
2001.
WHEREAS, it is mutually desirable. beneficial and agreeable to the parties hereto that
the repayment terms of said Promissory Note and Amendment be modified as hereinafter set
out.
NOW THEREFORE, in consideration of the mutual benefits inuring to each other, it is
understood and agreed, by and between the parties hereto, that the terms and conditions of
Borrower's Promissory Note as above described, are hereby modified as follows:
· Interest will accrue on the principal balance of Six Hundred Forty One Thousand One
Hundred Sixty Two Dollars and Eight Cents ($641,162.08) at an effective interest rate
of 1% for the remaining term of the loan retroactive to the date of last payment (July
12, 200 I).
· Monthly payments in the amount of Six Thousand Five Hundred Sixty Dollars
($6,560.00) shall begin on November 10, 2004 and shall be payable monthly on the
tenth (I Olh) of each month thereafter until the principal and interest are paid in full.
· Payments received will be applied first to the accrued unpaid interest. When the
accrued interest is paid the balance of each payment shall be applied to principal.
· Provisions contained in the original Promissory Note pertaining to default rate and
conditions shall be hereby waived by mutual agreement of all parties retroactive to July
12, 200 I through the effective date of this modification. The state reserves the right to
enforce such provisions for any default occurring after the effective date of this
modification.
THE BOTTOM OF THIS PAGE IS LEFT INTENTIONALLY BLANK
MODIFICA nON OF PROMISSORY NOTE - Tenupah,doc
Page I of2
00&524
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It is further agreed that all other terms, conditions and covenants of the aforesaid Promissory
Note and Amendment, not otherwise modified hereby, shall be and remain the same, and that
this Modification Agreement, when executed by the parties hereto, shall be attached to and
become part of the original Promissory Note, and shall have the same force and effect as if the
terms and conditions hereof were originally incorporated in the Note, prior to its execution
thereof.
IN WITNESS WHEREOF the undersigned parties execute this Modification. The
effective date of this Agreement is the last date affixed hereto.
::Upoh,~
M. ~ e Schwab, President and Guarantor
BY:
BY:,
~u'''ntm
Polyguard, LLC, Guarantor.,
ATIEST:L{~ Ô ¿¡("<>
',---
Wyoming 7counCi/
BY: I~ !~
Tucker Fagan, èEO
APPnt~ ~
Donald Gerstein, Asst. Attorney General
Date:
MODIFICA nON OF PROMISSORY NOTE· Tenupah,doc
Page 2 of2
Date:
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1/1. 9/0 f
Date:
Date: &/,,7f"- ",200 Ý
Date:
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Date:
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LOAN MODIFICATION AGREEMENT
OOû526
THIS AGREEMENT is made and entered into by and between Tenupah, LLC
(hereinafter called "Borrower"), and the State of Wyoming (hereinafter caHed "Lender"), by and
through Wyoming Industrial Development Corporation acting as servicer and agent for the
Lender.
and
WHEREAS, Borrower and Lender entered into a Loan Agreement dated May 12, 1995;
WHERE,\S, Lender loaned the Borrower $800,000.00 pursuant to the terms of the May
12,1995 Loan Agreement; and
WHEREAS, the Borrower is currently in default and is four months in arrears on
payments; and
WHEREAS, the Borrower has requested that the payments in arrears be deferred until the
end of the term of the loan; and
WHEREAS, the Lender is agreeable to defer said payments of the loan on the above-
recited basis; and
WHEREAS, the parties desire to reduce their final agreement concerning such loan
modification to writing.
NOW, THEREFORE, for and in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Lender
and Borrower agree as foHows:
I. Lender agrees to defer payment of those payments in arrears until the end of the
term of this Joan. Lender wiH permit Borrower to make one payment in each of the four months
following the ')riginal terminatiùn date ûf this loa;ì.
2. The Borrower and the Lender agree that the maturity date of the Loan will be
extended to October 12,2005.
3. Borrower agrees that it will make the deferred payments and further agrees that at
the time of the final payment, aH remaining principal and interest will be due and payable in full.
4.
the loan.
Lender agrees that an interest rate of eight percent (8%) will continue to apply to
5, This Agreement shaH control in the event of any inconsistency between the
origina] Loan Agreement and Promissory Note,
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6. Except as modified by this Loan Modification Agreement. the original Loan
Agreement and Promissory Note as previously executed shall remain in full force and effect and
by this Loan Modification Agreement are confinned in every respect except as altered herein.
7. The Promissory Note given by the Borrower shall be extended as set forth herein.
8. All mortgages, security agreements, pledge agreements and other collateralization
documents of any kind and description shall continue in full force and effect. The parties hereto
agree to execute any and all financing or continuation statements, or amendments thereto, or any
other instruments or notices as may be necessary or desirable, or as Lender may reasonably
request, in order to perfect and preserve the security interest granted pursuant to this paragraph.
DATED this / C/ 1ay of () é- ' f ' 2000,
TENUP AH, LLe
By:
;.~ø
L DEVELOPMENT
By:
wall ModiJicutioll Agreelllellt
Page 2
00&527
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PROMISSORY NOTE SECURED BY COLLATERAL
u.s.
$800.000.00
<;menne, W~ming
~ l.~ , 1995
TIllS PROMISSORY NOTE is given by Tenupah LLC, a Wyoming limited
liability company, hereinafter referred to as "Borrower", to the State of Wyoming
Division of Economic & Community Development hereinafter referred to as the
"State". This note is given to secure the principal sum of Eight Hundred Thousand and
00/100 Dollars ($800,000.00) with interest to accrue on the unpaid balance at the
annual rate of eight percent (8 %). Interest shall accrue from the date of the final
disbursement of this note. The Company shall begin payments two (2) months from the
date of the final disbursement. Repayment shall be amortized over ten (10) years, with
payments to be made monthly pursuant to such amortization beginning two (2) months
from the date of the final disbursement, and continuing on the same date of each month
thereafter to the end of the tenth year, at which time aH remaining principal and interest
shaH be due and payable in fuH. The first disbursement to be made within ninety (90)
days of the date of closing and the last disbursement to be made no later than one
hundred eighty (180) days after the date of closing. In the absence of any default by
borrower and except for prepayments permitted hereby, payments received by the State
from borrower shall apply in the following order: First, to the payment of interest due;
Second, sums due and owing to the State on the account of the principal due on the
loan.
If any annual installment under this Note is not paid when due then there shaH
be added to such payment an amount equal to four percent (4 %) of the overdue
installment payable on demand by the State for the first month of delinquency. In the
case of default in the payment of any installment or in the performance or the
observance of any of the covenants, agreements or conditions of any of the loan
documents which default continues for more than one (1) month, the relevant
indebtedness shall, during the continuation of any such default, bear interest at a rate
that shall be equal to the interest rate otherwise applicable on the respective loan plus
eight percent (8 %) per annum. In the event of nonpayment when due, at the election of
the State, the entire principal amount and outstanding accrued interest thereon shall at
once become due and, payable. In the event of such election, the State shall provide
Tenupah, LLC, a Wyoming limited liability company, with a notice of default
demanding that such payment be paid on a specified date which date shall not be less
than 20 days from the date of such notice is mailed. The Note holder may exercise this
option to accelerate during any default by Borrower regardless of any prior
forbearance. If suit is brought to collect this Note, the State shall be entitled to collect
all reasonable costs and expenses of suit, including, but not limited to, reasonable
attorneys' fees.
Borrower may prepay the principal amount outstanding in whole or in part in
amounts of $10,000.00 or a multiple thereof. Any partial prepayment shall be applied
against the principal amount outstanding and shall not postpone the due date of any
subsequent installment or change the amount of such installment, unless the State shall
otherwise agree in writing.
Presentment, notice of dishonor, demand and protest are hereby waived by all
makers, sureties, guarantors and endorsers hereof. This Note shall be the joint and
several obligation of all makers, sureties, guarantors and endorsers, and shall be
binding upon them and their successors and assigns.
The parties acknowledge that at the time of execution of this Note, Tenupah,
LLC, a Wyoming limited liability company, contemporaneously executed a mortgage
and security agreement providing the State with security intended to collateralize and
protect payments under this Note. However, nothing in this note or the security
agreement, or the personal guarantee's shall require that the State first pursue the
collateral given to it. The State may elect such remedies as it sees fit including pursuing
its collateral interest or pursuing this Note or any other options it may have in such
order as it may see fit.
Payments under this note shall be made to the State or such servicing agent as
the State may select with notification to be given to the debtor in writing.
This note and the supporting documents may not be assigned by Tenupah, LLC,
a Wyoming limited liability company, or any right hereunder transferred without the
prior written consent of the State. In the event assignment is consented to, all loan
documents and covenants, including the terms of this note, shall be binding upon and
Page 1 of2
úOvS28
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inure to the benefit of the successors and assigns of borrower and the successors and
assigns of the State. (;;0&529
Any notice to Borrower provided for in this Note shalI be given by mailing such
notice by certified mail addressed to Borrower at the address stated below, or to such
other address as Borrower may designate by notice to the State. Any notice to the State
shall be given by mailing such notice by certified mail, return receipt requested, to the
State c/o Wyoming Industrial Development Corporation at Suite 300, 232 E. 2nd,
Casper, Wyoming 82601, or at such other address as may have been designated by
notice to Borrower in writing.
TENUPAH, LLC, a Wyoming limited
liability company
By ~
41 .
-7 1".1. Lee Sc a
¿. '7.
~~ 7- t.V\t;WJt,
I rome MerrItt
Address: P.O. Box 1269
ACton WY 83110
H:\MJSC\TENUPAHI.DOC April II, 199.1' 10:04 AM
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