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Home My WebLink About917616 ~ií;t~iik~·t:';N1 ~~::~:~::t~:j;::;::: ::J \~~iM~~,'i'! .....;......-...., ,.....;·;.'c"'"=-.,.""..""-"""'...... _'-,<.:!\:o'"'~-'-._..__.___._. /\ l ¡. 5D691 ,.-.............."'......-- . .....'-.,,,..~~.,,.,.~ ......~...'..' 'd...'_.,"- T.,_ ·..t...;."'....."·f....· (;5lJ( 000361 WHEN RECORDED AND FlLED, RETURN TO: J obnA. Beckstead, Esq. Snell & Wilmer L.L.P. Gatew.ay Tower West, Suite 1200 15 West South Temple Sillt Lake City, Utah 841 01 RECEIVED 4120/2006 .a11D:DD AM RECEIVJNG:# 917616 BOOK: 617 PAGE: 361 ~EANNE WAGNER . _=~~:OLN COUNTY CLERK, KEMMERER. wY -"d~ MORTGAGE WITH ASSIGNMENT OF RENTS (Store:#235,Kemmerer, Wyoming.Property) FROM MA VERIK, INC. 11 Wyoming corp or.ati on, individually .and .doing bllSine.ss .as M.averìk Country Store, Mortgagor TO ZIONSFlRST NATIONAL.BANK, .a:nation.a1 banking .association, liS admini~tr.ative .agent for Zions F.ir.st N.ational B.ank .and U.S. B.ank National Associ.ation, Mortgagee Dated liS of M.arch31,2006 Lo.an Amount: $63,000,000.00 THIS lNSTRUMENT SECURES, IN PART, CERTAIN REVOLVlNG CREDIT lNDEBTEDNESS IN AN AGGREGATE PRINCIPAL AMOUNT OUTSTANDING WHICH SHALL NOT AT ANY ONE TlME .EXCEED U.S. $35,000,000.00, AND THE .PRINCIPAL lNDEBTEDNESS OUTSTANDlNG AND UNPAID THEREON AND SECURED BY THIS lNSTRUMENT MAY DECREASE OR lNCREASE FROM TlME TO TlME. THIS lNSJRUMENT ALSO SECURES, IN .PART, CERTAIN TERM LOAN lNDEBTEDNESS IN AN AGGREGATEJ>RINClPAL AMOUNT OF $30,000,000.00. THIS lNSTRUMENT ALSO SECURES PAYMENT OF DISCRET10NARY FUTURE ADVANCES AND FUTURE OBLIGAT10NS, AND THE PARTIES lNTEND THAT THIS INSTRUMENT SHALL ALSO SECURESUCHDISCRET10NARY FUTURE ADVANCES. 390686 - ..' . . ··,.:~¡~"'!.:li·Ä·.'i·¡;(';"¡·¡I;,'.'~:",;-:~-::..~>,-,,·~i::~","c::riJ.:"~'~-'-~\:~. -, :~;' ,'.., ·¡~~':,;;;,":.~:-;~;::¡¡¡:J:,:,I '~ ,',' :::~ ':!,', -,', ".:\ ':·;·i.9;1.'¡'~J."'Ï;'.~~':~ .:~.,"; ,: ,', :.~.-,~t·'!:l',¡~.x-~~~~..~Jn.':¡¡:1!;!.P"..;I;t,;'.n"";¡;'~i'1' -:1":.\, ';'~:~·.·:',::;'~;~/"~""!""~.!'¡~·:':'" ,",;' .~.:. . .:~.~.~..t..'...~.'.'.~." . , "-~ C00362 THE MORTGAGED PROPERTY INCLUDES GOODS ("FIXTURES") WHICH ARE OR ARE TO BECOME AFFIXED TO OR FIXTURES RELATED TO THE REAL PROPERTY DESCRIBED ON PAGE 1 HEREOF, AND THIS INSTRUMENT IS INTENDED BY THE PARTIES TO ALSO BE EFFECTIVE AS A FINANCING FILED AS A FIXTURE FILING. THIS FINANCING STATEMENT IS TO BE FILED FOR RECORD AND INDEXED, AMONG OTHER PLACES, IN THE REAL ESTATE RECORDS OF EACH COUNTY IN WHICH SAID REAL PROPERTY IS LOCATED. THE MORTGAGOR AND DEBTOR IS THE OWNER OF A RECORD INTEREST IN THE REAL PROPERTY CONCERNED. THIS INSTRUMENT ALSO COVERS PROCEEDS OF THE MORTGAGED PROPERTY. THIS INSTRUMENT CONTAINS AFTER-ACQUIRED PROPERTY PROVISIONS. 390686 - 2 - f:¡~~;j::!~:~m;:G ~riliili;~t!ili'-~: :i~mm~;~;~~~mm: '.: ....~.:,:':r....,:.. ',J.: ',, , .,;'. . , . . .. "'~'~'.) . ..,.....,.,.........;........,' .. . .'.:...,..~(,rl:~...:.;.~~ ~:'''. ....:t'o\",'..:.-.' .'-:.:.. .....,_ ",-; ~:' <. . . J'.'_ ·'·.Ti·"i·".i'¡";:'~': r', '~i'j :."'··;irl"~·';~:¡:=J:t:;:.~.;::~:·. r._:, ~ '_:. ( nL 0 ".? 6 3 .... , ",-", MORTGAGE WITH ASSIGNMENT OF RENTS (Store #235, Kemmerer, Wyoming Property) This Mortgage ("Mortgage") is made and entered into this 31 st day of March, 2006, by and between Maverik, Inc., a Wyoming corporation, formerly known as Maverik Country Stores, Inc., individually and doing business as Maverik Country Store, whose address is 880 West Center Street, North Salt Lake, Utah 84054 ("Mortgagor") and Zions First National Bank, whose address is Commercial Banking Division, 10 E. South Temple, Suite 1500, Salt Lake City, Utah 84133, Attention: Jim C. Stanchfield, Vice President, not in its individual capacity but solely as administrative agent for. Zions First National Bank ("Zions") and U.S. Bank National Association ("USB") pursuant to a Second Restated Intercreditor Agreement dated March 31, 2006 ("Mortgagee"). This Mortgage is made pursuant to a Third Restated and Amended Loan Agreement dated March 31, 2006 (the "Effective Date") between Mortgagor, Zions and USB (the "Loan Agreement") . Mortgagor hereby mortgages, warrants, conveys, transfers, pledges and assigns to Mortgagee, WITH STATUTORY POWER OF ADVERTISEMENT AND SALE, the property described on Exhibit A hereto, which is incorporated herein by reference, situated in Lincoln County, State of Wyoming, commonly known as 521 Coral, and known internally to Mortgagor as Store No. 235 (the "Real Property"). Together with all buildings, fixtures, and improvements thereon; all waters and water rights on, relating, or appertaining thereto; all easements, licenses and rights of way relating or appertaining thereto; all rents, issues, royalties, income and profits appertaining thereto; all awards made for taking by eminent domain or any proceeding or purchase in lieu thereof; the proceeds of any insurance with regard thereto; all tenements, hereditaments, rights, privileges, and appurtenances belonging or relating thereto or any improvements thereon; and including any of the foregoing now existing or created or arising in the future (collectively, the "Property"). Mortgagor further agrees, represents, and covenants as follows: 1. Obligations Secured. This Mortgage secures (a) Promissory Note - Non- Convertible Revolving Line of Credit dated the Effective Date executed by Mortgagor in favor of Zions in the original principal amount of nine million three hundred thousand dollars ($9,300,000.00), and all renewals, extensions, modifications and replacements thereof (including any which increase the original principal amount), (b) Promissory Note - Non-Convertible Revolving Line of Credit dated the Effective Date executed by Mortgagor in favor of USB in the original principal amount of five million seven hundred thousand dollars ($5,700,000.00), and all renewals, extensions, modifications and replacements thereof (including any which increase the original principal amount), (c) Promissory Note - Convertible Revolving Line of Credit dated the Effective Date executed by Mortgagor in favor of Zions in the original principal amount of twelve million four hundred thousand dollars ($12,400,000.00), and all renewals, extensions, modifications and replacements thereof (including any which increase the original principal 390686 .. :.'"-' "'1" ~""J'"-'>_",.'-""~'¡ ",:.F". .':';;'-.J;~!;Iõ:"-¡"-;.i.¡·,.,.,-"·,~,£,,,,,e-;"-'-_J!"".4"""'1"P1.-v..~1t\ti";':'''''''''''''._'::'' ·.r;:.:'-';,','¡'\}'M-1-.al'!ca&!"Æ!i:'_., ,....',;.-... '~'·.J~:-":':I:t;t;.;·j¡"·.·,·.·I,. "',', ..'... '.". '("':'~'.'¡.'~r.~~''':ot;'~~""~~~~^,,,".õ\o¡:,-::..-' ,,'. .,.;:,'~".'!..,,~."'-¥^~~;'; .-.-,',',: ...,_. ,''''.,:.t:-.'!:.",4;:\'.-.'"," (rQO¡4:::6, 4 '.' -v' ' amount), (d) Promissory Note - Convertible Revolving Line of Credit dated the Effective Date executed by Mortgagor in favor of USB in the original principal amount of seven million six hundred thousand dollars ($7,600,000.00), and all renewals, extensions, modifications and replacements thereof (including any which increase the original principal amount), (e) Promissory Note - Amortizing Term Loan dated the Effective Date executed by Mortgagor in favor of Zions in the original principal amount of fifteen million nine hundred twenty-one thousand six hundred dollars ($15,921,600.00), and all renewals, extensions, modifications and replacements thereof (including any which increase the original principal amount), (f) Promissory Note - Amortizing Term Loan dated the Effective Date executed by Mortgagor in favor of usa in the original principal amount of nine million seven hundred fifty-eight thousand four hundred dollars ($9,758,400.00), and all renewals, extensions, modifications and replacements thereof (including any which increase the original principal amount), (g) Restated Promissory Note - Amortizing Term Loan dated the Effective Date executed by Mortgagor in favor of Zions in the original principal amount of two million six hundred seventy-eight thousand four hundred dollars ($2,678,400.00), and all renewals, extensions, modifications and replacements thereof (including any which increase the original principal amount), (h) Restated Promissory Note - Amortizing Term Loan dated the Effective Date executed by Mortgagor in favor of USB in the original principal amount of one million six hundred forty-one thousand six hundred dollars ($1,641,600.00), and all renewals, extensions, modifications and replacements thereof (including any which increase the original principal amount), (i) all obligations of Mortgagor arising from or relating to any Interest Rate Management Transaction for the Loan (as such terms are defined in the Loan Agreement) or any portion thereof, GY all obligations of Mortgagor under the Loan Documents (as defined in the Loan Agreement), including, without limitation, this Mortgage (but excluding those obligations expressly excluded pursuant to Section 7, Hazardous Materials, below), and (k) transactions in which the documents evidencing the indebtedness which are executed by Mortgagor refer to this Mortgage as providing security therefor. 2. Representations and Warranties. Mortgagee that: Mortgagor represents and warrants to a. Mortgagor is the owner of fee simple marketable title to the Property. b; The Property is free and clear of any liens, claims, encumbrances, restrictions, encroachments and interests whatsoever in fav.9r of any third party, except (1) current taxes and assessments which are not yet due and payable, and (2) rights of way, easements, and licenses which are recorded and of public record. 3. Maintenance and Preservation of Property. Mortgagor shall (a) maintain the Property in good condition and repair; (b) not commit or allow any waste of the Property; (c) complete promptly and in good and workmanlike manner any building, fixture, or improvement which may be constructed on the Property; (d) except to the extent that insurance proceeds are applied by Mortgagee to the satisfaction of the obligations secured by this Mortgage, restore promptly and in good and workmanlike manner any of the Property which may be damaged or destroyed; (e) comply at all times with all laws, ordinances, regulations, covenants, and restrictions in any manner affecting the Property; (f) not commit or allow any act upon the 390686 - 2 - ~m;~~~~im~ilil~ ~::::*i~]:m:i::::: !t.:l;:;~t~J:;~~: i:~~ I,¡,:....¡t,...,..¡.i..... ;'¡_.,'.~'.'.U....J,' .. '0":',',',':;',';0,'",';';';',',';1;'," """"" ·rc.-__~-.i-:.i:r!'l';\$__, .,;:..i...:'.\.,.:.......,:. ',' .'.- ~: 'oi. '''-~'''''''''''.i''i''!",,; . , . l;' '. ....;-;.:,;.;...~...¡L .... ,- .' '..'"~i.~'I"á-'iOiI;.'.,..;.!$,...¡!¡~·;~.';:I:¡·,1,J· '. : ". ;.J<;', .;, o1;"J.! .~¡:.~.:'7·. ~'i-''-'-' \". ".14!' , ., .' ,: :,' !".~.. '. "~~'j""..' _", '. r Os 65 Property in violation of law; and (g) do all acts which by reason of the character or use of the Property may be reasonably necessary to maintain and care for the Property. Mortgagor is authorized to remodel, remove and modify any buildings, fixtures, or improvements upon the Property in the ordinary course of Mortgagor's business as Mortgagor deems necessary or prudent pursuant to Mortgagor's business operations and on-going business plans for the Property, and Mortgagor covenants that any such actions taken by Mortgagor will not materially reduce or impair the fair market value or utility of the Property. 4. Insurance. Mortgagor shall secure and at all times maintain, at Mortgagor's expense, the insurance coverages required by the Loan Agreement. In the event of any loss or damage to the Propeliy, Mortgagor shall immediately give Mortgagee written notice thereof. 5. Taxes and Assessments. Mortgagor shall pay when due all taxes, assessments, and governmental charges and levies on the Property, except such as are being contested in good faith by proper proceedings and as to which adequate reserves are maintained. 6. Utilities. Mortgagor shall pay when due all utility charges for gas, electricity, water, sewer, garbage collection, or other services provided to the Property. 7. Hazardous Materials. "Hazardous Materials" means (a) "hazardous waste" as defined by the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901 et seq.), including any future amendments thereto, and regulations promulgated thereunder, and as the term may be defined by any contemporary state counterpart of such act; (b) "hazardous substance" as defined by the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), including any future amendments thereto, and regulations promulgated thereunder, and as the term may be defined by any contemporary state counterpart of such act; (c) asbestos; (d) polychlorinated biphenyls; (e) underground or above ground storage tanks, whether empty or filled or partially filled with any substance; (f) any substance the presence of which is or becomes prohibited by any federal, state, or local law, ordinance, rule, or regulation; and (g) any substance which under any federal, state, or local law, ordinance, rule, or regulation requires special handling or notification in its collection, storage, treatment, transportation, use or disposal. "Environmental Condition" means any condition involving or relating to Hazardous Materials and/or the environment affecting the Property, whether or not yet discovered, which could or does result in any damage, loss, cost, expense, claim, demand, order, or liability to or against Mortgagor or Mortgagee by any third party (including, without limitation, any government entity), including, without limitation, any condition involving or relating to Hazardous Materials affecting the Property resulting from the operation of Mortgagor's business and/or operations and any activity or operation conducted by any third party in the vicinity of the Property. "Environmental Health and Safety Law" means any legal requirement that requires or relates to: 390686 - 3 - ~ " ,·,·.·I"'·I~· ""''''''''','". .' ,y¡.,: "~'.' ',~¡;-~·::.I;·:.·' -- '. '....': :',t '. ·c'-ft. <",~,!":....boo:'t.. t.',9.........""..;.........,. ,. '::':··....,·Hn'*.,.;"-..._!:'i:ot:~L"!..,1t!.i;·I·'.:·'.tlJ..'_.;;'.,',,·ro' .'.' '.' ··,·~~.'I·..·n~ :....,~. ".' ," _",' .:. . ......i'¡;¡:;..:..... 000366 a. advising appropriate authorities, employees, or the public of intended or . actual releases of Hazardous Materials, violations of discharge limits or other prohibitions, and of the commencement of activities, such as resource extraction or construction, that do or could have significant impact on the environment; b. preventing or reducing to acceptable levels the release of Hazardous Materials into the environment; c. reducing the quantities, preventing the release, or minimizing the hazardous characteristics of wastes that are generated; d. assuring that products are designed, formulated, packaged, and used so that they do not present unreasonable risks to human health or the environment when used or disposed of; e. protecting resources, species, or ecological amenities; f. . use, storage, transportation, sale, or transfer of Hazardous Materials or other potentially harmful substances; g. cleaning up Hazardous Materials that have been released, preventing the threat of release, and/or paying the costs of such clean up or prevention; or h. making responsible parties pay for damages done to the health of others or the environm~nt or permitting self-appointed representatives of the public interest to recover for injuries done to public assets. Mortgagor represents and warrants that, to the best of Mortgagor's knowledge, except for petroleum products and packaged products held for sale and as Mortgagee has been otherwise previously advised by Mortgagor in writing, no Hazardous Materials are now located on, in, or under the Property, nor is there any Environmental Condition on, in, or under the Property and, to the best of Mortgagor's knowledge, neither Mortgagor nor any other person has ever caused or permitted any Hazardous Materials to be placed, held, used, stored, released, generated, located or disposed of on, in or under the Property, or any part thereof, nor caused or allowed an Environmental Condition to exist on, in or under the Property, which may have a material impact or effect upon the financial or other condition of Mortgagor or Mortgagor's operations. Mortgagor further represents and warrants that, to the best of Mortgagor's knowledge, no investigation, administrative order, consent order and agreement, litigation or settlement with respect to Hazardous Materials and/or an Environmental Condition is proposed, threatened, anticipated or in existence with respect to the Property, which may have a material impact or effect upon the financial or other condition of Mortgagor or Mortgagor's operations. Mortgagor will: a. Not permit the presence, use, disposal, storage or release of any Hazardous Materials on, in, or under the Property, except in the ordinary course of Mortgagor's business under conditions that are generally recognized to be appropriate and safe and 390686 - 4 - æmll !:~'.. ~ .!~~~fl: ';"¡.' i!~ ~!:~~a¡ ;]I~~~~f~1~ ," ,:-1",', ·'<:'~::"'C"Cr.'~'~t~I~~:m~t7t.'r.u.u1n"'W:rtI1~:~~ij,~,=";t,.o....~~r-..t~..'*rS--~~""". .V.·. ',' .""".,. '~·'~'i"·4.~t.·...oI'''ð·^!'~:'''- -¡:l<",' _;,0, .,:",.,.;..'t::!>~"'iK¥~.",.~~"",,',q.~~;;"';" . '. ".',-."~,: "';!.~)o..daU-.r'''~~-':''''" >P".":I: ~"_"'." \."".~""",,,:' . . 390686 \>. 000367 that are in material compliance with all applicable Environmental Health and Safety Laws. b. Not permit any substance, activity Or Environmental Condition on, in, under or affecting the Property which is in material violation of any Environmental Health and Safety Laws. c. Comply with the material provisions of all Environmental Health and Safety Laws. d. Promptly after learning of the same, notify Mortgagee of any material discharge of Hazardous Materials, Environmental Condition, or environmental complaint or notice received from any governmental agency or any other party. e. Upon any material discharge of Hazardous Materials or upon the occurrence or discovery of any material Environmental Condition, promptly address the same in material compliance with all Environmental Health and Safety Laws, promptly pursue any responsible third parties, promptly pay any fine or penalty assessed in connection therewith, or diligently contest in good faith, and promptly notify Mortgagee of such events and of the actions being taken by Mortgagor to address and remedy the same. f. From time to time upon request of Mortgagee, provide copies of all environmental inspections and reports in the possession of or available to Mortgagor concerning the Property. g. Permit Mortgagee, at Mortgagee's expense, to inspect the Property for Hazardous Materials and Environmental Conditions, to conduct tests thereon, and to inspect all books, correspondence, and records pertaining thereto. Any such testing shall be done without unreasonable disruption of Mortgagor's business and testing will be done only upon reasonable grounds or after an Event of Default. h. If there has been a material spill or discharge of a Hazardous Material on the Property, upon Mortgagee's request, and at Mortgagor's expense, provide a report (including all validated and unvalidated data generated for such reports) satisfactory to Mortgagee in scope, form, and content, and provide to Mortgagee such other and further assurances reasonably satisfactory to Mortgagee, that Mortgagor is in compliance with these covenants concerning Hazardous Materials and Environmental Conditions, and that the violation thereof has been corrected in compliance with all applicable Environmental Health and Safety Laws. Mortgagee may also obtain an additional report from an independent environmental engineer selected by Mortgagee (the "Independent Report"). If the findings and conclusions in the Independent Report are materially different from those contained in the report provided by Mortgagor, all costs and expenses incurred with respect to the Independent Report shall be paid by Mortgagor. If the findings and conclusions contained in the Independent Report are substantially similar to those contained in the report provided by Mortgagor, then all costs and expenses incurred with respect to the Independent Report shall be paid by Mortgagee. - 5 - , . :".' .,"';.¡..,.,..,.......,.;....,.,.,.,......, "'-'." ··..:.r-···r.':F~":'·~~-_,¡;~'&-n- ._''':':..-~."~ '.'--,'. ·'J"'';4''·.:r$'~\-.· ...,..,;!_":'-,-............................. '\;~'~~...~r:..::,~=:·:"':-':.¡;.,-'.,...',,..'.i":~·I··; ',""'1'.- ·.,,·.·..Ò·çC';C.·.4"'·"·' I'. ", .....";.,. ,.,'.......;..;.... C00368 i. Promptly advise Mortgagee of any additional, supplemental, new, or other information concerning any Hazardous Materials or Environmental Conditions that could have a material adverse effect upon the value or marketability of the Property. Upon the spill or discharge of Hazardous Materials and/or the occurrence or discovery of an Environmental Condition on the Property, Mortgagor shall provide to Mortgagee a good faith estimate of the costs of clean-up and remediation of the spill, discharge, or Occurrence within one hundred eighty (180) days of the spill, discharge, occurrence or discovery. If the estimated costs of clean-up and remediation for the Property exceed one hundred thousand dollars ($100,000.00), the Collateral Pool Value (as defined in the Loan Agreement) for the Property may, in the discretion of Mortgagee, be reduced by the amount of such estimate until such clean- up and remediation has been completed. If Mortgagor fails to timely provide such estimate and such failure is not remedied by providing such estimate within twenty (20) days of written notice by Mortgagee to Mortgagor of such failure, the Property may, in the discretion of Mortgagee, be deleted as Eligible Real Property Collateral (as defined in the Loan Agreement) until such estimate has been provided. The spill or discharge of Hazardous Materials, and/or the occurrence or discovery of an Environmental Condition, on the Property and failure to timely provide an estimate of the costs of clean-up and remediation shall not constitute an event of default under this Mortgage or an Event of Default (as defined in the Loan Agreement). If either the reduction of the Collateral Pool Value for the Property or the deletion of the Property from the Eligible Real Property Collateral as outlined above would otherwise result in an Event of Default under the Loan Agreement based on an insufficient Collateral Pool Value, Trustor has the right to immediately provide a property of Trustor of comparable or greater value as the Eligible Real Property Collateral as provided in Section 3.2, Substitution of Collateral, of the Loan Agreement, in order to avoid such Event of Default from occurring. Mortgagor shall indemnify Mortgagee for any and all claims and liabilities, and for damages which may be awarded or incurred by Mortgagee, and for all reasonable attorneys fees, legal expenses, and other out-of-pocket expenses, arising from or related in any manner, directly or indirectly, to (a) Hazardous Materials located on, in, or Under the Property; (b) any Environmental Condition on, in, or under the Property; (c) violation of or non-compliance with any Environmental Health and Safety Law; (d) any breach or violation of the representations, warranties, and covenants contained in this Section 7, Hazardous Materials; and/or (e) any activity or omission, whether occurring on or off the Property, whether prior to or during the term of the obligations secured hereby, and whether by Mortgagor or any other person or entity, relating to Hazardous Materials or an Environmental Condition affecting the Property. The indemnification obligations of Mortgagor under this Section 7, Hazardous Materials, shall survive any release, or foreclosure of this Mortgage, any transfer in lieu of foreclosure, and satisfaction of the obligations secured hereby. Notwithstanding the foregoing, (a) the indemnification obligations of Mortgagor shall not extend to any claims between Zions, USB, and/or Mortgagee, and (b) in the event Mortgagor is determined to not be liable for the amounts asserted by Zions, USB, and/or Mortgagee pursuant to this Section, Mortgagor shall not be liable to indemnify Zions, USB, and/or Mortgagee for attorneys fees, legal expenses or other out-of-pocket expenses incurred by Zions, USB, and/or 390686 - 6 - ~.'~....,," "",~ ¡1¡"'..""',I"'..,,.t I:' :~~~~;~~ ~.~. :':~1!1 !m~~~~m;¡;j~.~~~~ ~ J ~~WtJf:~: '~I!'~'~"'~!_~~'~i~' ':;;£:':'>:1:'1:..:0.,;'.'-",,_. u. ;. ."', .·.·_",·,··.·"'..h""".·,·,.·¡.. __" . ..... .,.._._ "'·""-c~~«....·.,,,." .,--,...,....................,..,......... '.. ~-r.;,.':'.ta:Eœ.._..·~""',L""'J..,¡,,;.,fj..·..·;,,·,',v..,,;....-..."'!··.·.· .. ,~.,.. ,,:. .",:",-.;~,,,-,,,,,,:,_;,,,_, '.', .,._~..\."..,;.""..... ....,......... 000369 Mortgagee in defending such claims for which indemnification is requested or in asserting such indemnification obligations. So long as no event of default under this Mortgage or an Event of Default (as defined in the Loan Agreement) has occurred which is not timely cured or waived, Mortgagor shall have the sole and complete control of the defense of any such claims. Mortgagor is authorized to settle or otherwise compromise any such claims as Mortgagor in good faith determines shall be in its best interests. Upon the occurrence of an event of default under this Mortgage or an Event of Default (as defined in the Loan Agreement) and the expiration of any time allowed for cure of such event of default or Event of Default, Mortgagee may, at its option, elect to take over defense of any such claims and upon notice to Mortgagor of such election, the rights of Mortgagor set forth in the two preceding sentences shall immediately terminate and thereafter Mortgagee shall have the sole and complete control of the defense of any such claims. Mortgagee is authorized to settle or otherwise compromise any such claims as Mortgagee in good faith determines shall be in its best interests or the best interest of Lenders (as defined in the Loan Agreement). Notwithstanding anything to the contrary in this Mortgage, any indemnification amount owing to Mortgagee pursuant to this Section 7, Hazardous Materials, shall not be secured by the Property. 8. Defense of Title. Mortgagor shall keep the Property free and clear of any liens for the supplying of services, labor or materials, unless Mortgagor is diligently contesting the validity of such lien by timely and appropriate procedures and adequate cash reserves for such lien have been set aside. Mortgagor shall promptly release any lien, mortgage, or other encumbrance upon the Property which has or may have priority over or equality with this Mortgage. . Upon request of Mortgagee, Mortgagor shall appear in and defend any action or proceeding purporting to affect the security hereof, the Property, or the rights or powers of Mortgagee. Should Mortgagee elect to appear in or defend any such action or proceeding, Mortgagor shall pay all costs and expenses, including costs of evidence of title and reasonable attorneys fees and legal expenses, incurred by Mortgagee. 9. Right to Perform for Mortgagor. If not paid or discharged when due, and upon the failure by Mortgagor to payor discharge within thirty (30) days of its receipt of notice from Mortgagee of its intent to payor discharge the same, Mortgagee may, in its sole discretion and without any duty to do so, (a) elect to discharge taxes, assessments, liens, mortgages, or other encumbrances upon the Property which have or may have priority over or equality with this· Mortgage, (b) perform any duty or obligation of Mortgagor, or (c) pay recording, insurance or other charges payable by Mortgagor or provide insurance if Mortgagor fails to do so. Any such payments advanced by Mortgagee shall be reimbursed by Mortgagor upon demand, together with interest thereon from the date of the advance until repaid, both before and after judgment, at the default rate provided in the Line of Credit Notes (as defined in the Loan Agreement). 10. Further Assurance. Mortgagor shall execute and deliver such further instruments and documents and do such further acts as may be necessary or as may be reasonably requested by Mortgagee to carry out the purposes of this Mortgage and to subject to the lien and mortgage 390686 - 7 - ... ~"'" t"":'JJ""",-'~I¡,,a;',' .~..,...·.:o,·.t,,""~"";-":r,:<t:;""...œ.u)....~',,,,,, ,,'~~";-.'I'~ -..,.' ,:......,-_.~~..",.~¡,::> .::.:..>0.-. -~ " ~. . 1.-' ',':..'__I~f;':I;':';'.._.,'.·,· '. ...... ""'," ., ·-··'''~._~''_C:¡';~:H~'''''''''I''':''''''~·,J·:'''·~·.-r':·4· "',,"" ~."""~'~""!'~':""""''';'''.",,:.:+..;...,,'''''':_'"'''''''....,,::._...-t..~,..' . ('00370 created or intended to be created hereby any property, rights, or interests covered or intended to be covered by this Mortgage. 11. Attornment. All future lease agreements entered into by Mortgagor, as landlord, which pertain to the Property shall contain a covenant on the part of the tenant, enforceable by Mortgagee, obligating such tenant, upon request of Mortgagee, to attorn to and become a tenant of Mortgagee or any purchaser or through foreclosure of this Mortgage, for the unexpired term of, and subject to the terms and conditions of, such future lease agreements. 12. Condemnation Awards. lfthe Property, the improvements thereon, or any portion thereof should be taken or damaged by reason of any public improvement or condemnation proceeding, Mortgagee shall be entitled to all compensation, awards, and other payments and relief therefor, and shall be entitled, at Mortgagee's option, to commence, appear in, and prosecute in Mortgagee's own name any action or proceeding, and to make any compromise or settlement, in connection with such taking. Mortgagor shall promptly give notice to Mortgagee of any condemnation proceeding or any taking for public improvement. All such compensation, awards, and other payments and relief are hereby assigned to Mortgagee. After deducting all costs and expenses, including reasonable attorneys fees and legal expenses, incurred by Mortgagee in connection with such compensation, awards, and other payments and relief, Mortgagee may, in its sole discretion and without any duty to do so, release such compensation or apply such compensation, or any portion thereof, on any of the obligations secured by this Mortgage, whether or not then due. Mortgagee shall have no obligation to apply such compensation to restore or repair damage to the Property, regardless of whether such taking has a significant adverse impact on the operation of the remaining portion of the Property. 13. No Further Encumbrances. Mortgagor shall not further encumber, mortgage or place any lien upon the Property, nor cause or allow by operation of law the encumbrance of the Property without the written consent of Mortgagee, even though such encumbrance may be junior to this Mortgage. 14. Evidence of Title. Mortgagor shall deliver and pay for a title insurance policy with respect to the Property in a form and an amount satisfactory to Mortgagee, insuring Mortgagor's fee title ownership in the Property. 15. Access. Mortgagee and Mortgagee's representatives are hereby authorized and shall have the right, at all reasonable times during the existence of this Mortgage, to enter upon the Property to inspect the Property and to perform any of the acts authorized under this Mortgage. 16. Assignment of Rents. As additional security for the obligations secured by this Mortgage, Mortgagor hereby assigns to Mortgagee, during the time until this Mortgage is released, all rents, issues, royalties, income and profits of the Property. Until the occurrence of any default under this Mortgage or on any obligation secured hereby, Mortgagor shall have the right to collect and retain all rents, issues, royalties, income and profits of the Property. Upon the occurrence of any default under this Mortgage or on any obligation secured hereby, at the election of Mortgagee, the right of Mortgagor to collect and retain such rents, issues, royalties, 390686 - 8 - ~i'.';''·""~i'i~"'¡~ Jj·j;.'I'I'¡'I~ilf·":~ t~:::~::~t!~;w:;~ ~~mf¡~~~~~~~;;~ .... ... c...· .,'.~ ··,............"".,._h..·~.,"."d'-..'''~......... ..,....__...'.,.........'_....~_.....,. ., '- . . .~..... "~.,, ............ ,...,~ '............................ ." . ¡ .,< .........,.....~~..~,...,'*'~_....,.'=,...=-"..:.....:..__........-...-.. , ~"""';'~""'r-""':">::"<:.o:,,,..,.',,"""..:., S··.·.·. ,·.~.·.'l~... C00371 income and profits shall cease and Mortgagee shall have the right, with or without taking possession of the Property, to collect and retain all such rents, issues, royalties, income and profits. Any sums so collected, after the deduction of all costs and expenses of operation and collection, including reasonable attorneys fees and legal expenses, shall be applied toward the payment of the obligations secured by this Mortgage. Such right of collection shall obtain both before and after the exercise of the power of sale provisions of this Mortgage, the foreclosure of this Mortgage and throughout any period of redemption. The rights granted under this Section 16, Assignment of Rents, shall in no way be dependent upon and shall apply without regard to whether all or a portion of the Property is in danger of being lost, removed, or materially injured, or whether the Property or any other security is adequate to discharge the obligations secured by this Mortgage. Mortgagee's failure or discontinuance at any time to collect any of such rents, issues, royalties, income and profits shall not in any manner affect the right, power, and authority of Mortgagee thereafter to collect the same. Neither any provision contained herein, nor MOligagee's exercise of its right to collect such rents, issues, royalties, income and profits, shall be, or be construed to be, an affirmation by Mortgagee of any tenancy, lease, sublease, option, or other interest in the Property, or an assumption of liability under, or a subordination of this Mortgage to, any tenancy, lease, sublease, option, or other interest in the Property. All tenants, lessees, sublessees and other persons who have any obligation to make any payment to Mortgagor in connection with the Property are hereby authorized and directed to make such payments directly to Mortgagee upon the demand of Mortgagee. Mortgagee's receipt of such rents, issues, royalties, income, and profits shall be a discharge of the obligation of the tenant or other person obligated to make the payment. Collection by Mortgagee of such rents, issues, royalties, income, and profits shall not cure or waive any default under this Mortgage. 17. Assignment of Leases. Mortgagor hereby assigns to Mortgagee all right, title and interest of Mortgagor in and to any lease agreements entered into by Mortgagor as lessee for the acquisition of furnishings, goods or equipment for use on or in connection with the Property. This assignment shall be effective upon the occurrence of any default under this Mortgage or the obligations secured hereby and written acceptance of this assignment by Mortgagee. 18. Default. Time is of the essence of this Mortgage. The occurrence of anyone of the following shall constitute an event of default: a. Any representation or warranty made by or on behalf of Mortgagor in this Mortgage is materially false or materially misleading when made; b. Mortgagor fails in the payment or performance of any obligation, covenant, agreement or liability created by or contemplated by this Mortgage or secured by this Mortgage; or c. An Event of Default (as defined in the Loan Agreement) occurs. 390686 - 9 - I. ......,"..,.,.............,..-",.,..".",...,.,."~-,,.,."''''"'''_."''.--...":.... .,.,.,...........,-.,.........,. ',...,..'................,.', " ·''''t.· ..r___..."""",'".,....,.,'1>..,:._.........~'"."'...-...~....... .....;,. ......................... 000372 No course of dealing or any delay or failure to assert any default shall constitute a waiver of that default or of any prior or subsequent default. 19. Notice of Default: Acceleration: Remedies. In order to exercise any remedies following an event of default hereunder or under the Loan Agreement, Mortgagee shall give written notice to Mortgagor specifically describing the event of default and stating what must be done in order to cure such default. If Mortgagor fails, within thirty (30) days following the date such notice is given (notice will be deemed given when placed in the United States Mail, certified, return receipt requested, addressed to Mortgagor at its last address furnished to Mortgagee), to make any payment demanded, or, if the default involves a breach other than the payment of money, to reasonably and immediately undertake to cure such default in a reasonable and expeditious manner, then Mortgagee shall have the right, without further notice to Mortgagor, to accelerate the obligations secured by this Mortgage and treat the same as being immediately due and payable forthwith, and Mortgagee may proceed to foreclose this Mortgage either by advertisement and sale of the Property as provided and permitted by Wyoming law, with statutory POWER OF ADVERTISEMENT AND SALE being expressly given, or by an action in equity or at law. Out of the proceeds of any foreclosure sale, whether foreclosure by advertisement and sale or by judicial proceeding, Mortgagee shall retain or receive all sums due to it hereunder, including the costs of foreclosure and sale, including attorneys fees in a reasonable amount. All excess funds shall be paid to Mortgagor. 20. Surrender of Possession. To the extent permitted by applicable law, if possession has nöt previously been surrendered by Mortgagor, Mortgagor shall surrender possession of the Property to the purchaser immediately after any sale. 21. UCC Remedies. Notwithstanding anything to the contrary herein, with regard to all fixtures and personal property conveyed by this Mortgage, Mortgagee shall have the right, at the option of Mortgagee, to exercise any and all rights and remedies available to Mortgagee as a secured party under the Uniform Commercial Code of Utah, and any and all rights and remedies available to Mortgagee at law, in equity, or by statute. Upon written demand from Mortgagee, Mortgagor shall, at Mortgagor's expense, assemble such fixtures and personal property and make them available to Mortgagee at a reasonably convenient place designated by Mortgagee. 22. Receiver. If an event of default occurs under this Mortgage, Mortgagee shall have the right, without regard to the then value of the Property or the interest of Mortgagor therein, upon notice to Mortgagor, to apply to any court having jurisdiction to appoint a receiver of the Property. Mortgagor hereby irrevocably consents to such appointment and further consents to and approves Mortgagee as such receiver. Any such receiver shall have all the usual powers and duties of a receiver and shall continue as such and exercise all such powers until completion of the sale of the Propeliy or the foreclosure proceeding, unless the receivership is sooner terminated. 23. Deficiency. Mortgagor agrees to pay any deficiency arising from any cause, to which Mortgagee may be entitled after applications of the proceeds of any sale, and Mortgagee may commence suit to collect such deficiency in accordance with Wyoming law. 390686 - 10- ~¡:i:'~I::.~:.~.:;;.:i ~1.·t·lf'.'.'.f,...¡..~ ¡¡:!·,!.,!lllj...~'!1:IJ ~~%m;~I~~~; ..' ....._.........,.....,.,...,.....,.,..~, ",_~_',''''''''''"'''':'.,..,..v~"-,-...,=,,",,,.'' ",...,-- ''''';';'''''-''''.'.,'''_'."1''''"_,,-,, ·.·."',....,...".t.,..·.·.· ."'..'" ._....;-:"""'.."',...""_.....'D,.......-'~~,,,.;:..:z,,~.r.:...ro-4-.:;r..:;.,...'" '. ...."..,...;,,.,.........:~;{.:.:..,.;...:'.. '''¡-,' _.. "', ......;.,~..,.,.., r. '. l'\ 0 .~. t'1 3', ., U -.1 ( 24. No Remedy Exclusive. The rights and remedies herein conferred are cumulative and not exclusive of any other rights and remedies and shall be in addition to every other right, power and remedy herein specifically granted or hereafter existing at law, in equity, or by statute which Mortgagee might otherwise have, and any and all such rights and remedies may be exercised from time to time and as often and in such order as Mortgagee may deem expedient. No delay or omission in the exercise of any such right, power or remedy or in the pursuance of any remedy shall impair any such right, power or remedy or be construed to be a waiver thereof or of any default or to be an acquiescence therein. 25. Due on Sale. If Mortgagor shall either sell, conveyor transfer the Property, or any part thereof, without the prior written consent of Mortgagee, or be divested of title in any manner except by proceedings in eminent domain, whether voluntarily or involuntarily, the obligations secured by this Mortgage shall, at the option of Mortgagee and without demand or notice, immediately accelerate and become due and payable in full. If Mortgagee exercises this option to accelerate, Mortgagee shall give Mortgagor written notice of such acceleration. Such notice shall provide a period of not less than thirty (30) days from the date the notice is given within which Mortgagor may pay the sums declared due. If Mortgagor fails to pay such sums within such period, Mortgagor shall be in default and Mortgagee may exercise its remedies hereunder. 26. Other Collateral. The obligations secured by this Mortgage may also be secured by other collateral not identified in this Mortgage. 27. Attorneys Fees and Legal Expenses. In the event of default under this Mortgage, Mortgagor agrees to pay all reasonable attorneys fees and legal expenses incurred by or on behalf of Mortgagee in enforcement of this Mortgage, in exercising any rights and remedies arising from such default, or otherwise related to such default. Regardless of default, Mortgagor agrees to pay all expenses, including reasonable attorneys fees and legal expenses, incurred by Mortgagee in any bankruptcy proceedings in which Mortgagor is the debtor or the Property or any interest therein is property of the bankruptcy estate including, without limitation, expenses incurred in modifying or lifting the automatic stay, assuming or rejecting leases, determining adequate protection, use of cash collateral, or relating to any plan of reorganization. 28. Indemnification. Mortgagor shall indemnify Mortgagee for any and all claims and liabilities, and for damages which may be awarded or incurred by Mortgagee, and for all reasonable attorneys fees, legal' expenses, and other out-of-pocket expenses incurred in defending such claims, arising from or related in any manner to the negotiation, execution, or performance of this Mortgage, but excluding any claims and liabilities based upon breach or default by Mortgagee under this Mortgage or gross negligence or misconduct of Mortgagee. Notwithstanding the foregoing, (a) the indemnification obligations of Mortgagor shall not extend to any claims between Zions, USB, and/or Mortgagee, and (b) in the event Mortgagor is determined to not be liable for the amounts asserted by Zions, USB, and/or Mortgagee pursuant to this Section, Mortgagor shall not be liable to indemnify Zions, USB, and/or Mortgagee for attorneys fees, legal expenses or other out-of-pocket expenses incurred by Zions, USB, and/or 390686 - IJ - · ·I:·.:t:·:'~[\¡·;t~.;·;·;;";';''-·;~:.:! .,:it :~i!:II;""'''~'''\";'~.2!..r::!....~..,',· ,-;.';~".',' ··t·,-i..·.,' ',.~........(;r,,':r.'.'. ·,:·_~:.:.:.;.;.:t:.:t:r..;.r:.:': .::.' ',. ~,'If'; ""o!M:."'-~är.f.t" ".:'£,.n.:t~..~'U<...·!·~~,~.,,~,....:o.'''':''''' ,: '. -. . '. '~¡.i' .;'.'~·i:;'!&!V;,~~':,'-;-·\:!:' ''.j',~'''''' "-"";'~" : ';':'I~.V."¡'.·.' r r:ì 0 '.~' ,., 4 '. \} "0 { Mortgagee in defending such claims for which indemnification is requested or in asserting such indemnification obligations. So long as no event of default under this Mortgage or an Event of Default (as defined in the Loan Agreement) has occurred which is not timely cured or waived, Mortgagor shall have the sole and complete control of the defense of any such claims. Mortgagor is authorized to settle or otherwise compromise any such claims as Mortgagor in good faith determines shall be in its best interests. Upon the occurrence of an event of default under this Mortgage or an Event of Default (as defined in the Loan Agreement) and the expiration of any time allowed for cure of such event of default or Event of Default, Mortgagee may, at its option, elect to take over defense of any such claims and upon notice to Mortgagor of such election, the rights of Mortgagor set forth in the two preceding sentences shall immediately terminate and thereafter Mortgagee shall have the sole and complete control of the defense of any such claims. Mortgagee is authorized to settle or otherwise compromise any such claims as Mortgagee in good faith determines shall be in its best interests or the best interest of Lenders (as defined in the Loan Agreement). 29. Notices. All notices or demands by any party hereto shall be in writing and shall be sent by certified mail, return receipt requested. Notices so mailed, shall be deemed received two (2) Banking Business Days after deposit in a United States post office box, postage prepaid, properly addressed to the mailing addresses set forth below or to such other addresses as Mortgagor or Mortgagee may from time to time specify in writing. Any notice so addressed and otherwise delivered shall be deemed to be given upon the earlier of (i) two (2) Banking Business Days after deposit in a United States post office box or (ii) when actually received by the addressee. Mortgagor: Maverik, Inc. 880 West Center Street North Salt Lake, Utah 84054 Attention: Michael V. Call with copies to: Ray, Quinney & Nebeker, P.C. 36 South State Street, Suite 1400 Salt Lake City, Utah 84111 Attention: Douglas M. Monson, Esq. Mortgagee: Zions First National Bank Commercial Banking Division 10 E. South Temple, Suite 1500 Salt Lake City, Utah 84133 Attention: Jim C. Stanchfield Vice President 390686 - 12 - :!¡::~~i:::!::::;::¡:¡ ...!..~!.~...!} ~¡¡'S!I·:m:::~:~~ . - . ,.,... ?·,t~ I!J:?~.!~~.~;~ .,,; ';¡:~i~~:.:¡t..-t:I:l:,':':~:!:\·; -'·r;':';.;':;;· .:'.. ·,";'¡'-.;.;¡l¿" .t·.......:. . '1Y, ,:',-,;,-,"':~¡æ¡:.;"(";' .... ,..~~.;:,:.:,·L··:~:-·'··t~tU"...~r.ti"J'.··':,··'··' ".. ·,'·...~,~:!:..f·~Ihf>'·~:_'rJ.~:s:.,!?',:;J~'.:·:\:·.'..·;l ',.', . I::'.....:.;.,.¡..(.·-;.I.·,.O-'::;-.·:, -..-,;:.,.... _'> ..."......;?,;'..,.,..':.!;.. t: ~) 0 .... t'1 5 . " 0 ( with copies to: Snell & Wilmer L.L.P. Gateway Tower West, Suite 1200 15 West South Temple Salt Lake City, Utah 84101 Attention: John A. Beckstead, Esq. 30. Mortgagee's Powers. Without affecting the liability of any person liable for the payment of the obligations secured hereby, and without affecting the lien or charge of this Mortgage upon any portion of the Property not then or theretofore released as security for the obligations secured hereby, Mortgagee may, from time to time and without notice: (a) reconvey any part of said Property, (b) consent in writing to the making of any map or plat thereof, (c) join in granting any easement thereon, (d) join in any extension agreement or any agreement subordinating the lien or charge hereof, (e) release any person so liable, (f) extend the obligations secured hereby, (g) grant other indulgences, (h) release or reconvey, or cause to be released or reconveyed, at any time at Mortgagee's option any parcel, portion or all of the Property, (i) take or release any other or additional security or any guaranty for any obligation secured hereby, or G) make compositions or other arrangements with debtors in relation thereto. 31. Redemption Rights of Mortgagor. Mortgagor hereby represents, warrants, acknowledges and agrees that the Real Property is not "agricultural real estate," as such term is used and defined in Wyoming Statutes Annotated § 1-18-103(c). 32. Request for Notice. Mortgagor requests that a copy of any notice of default and of any notice of sale hereunder be mailed to Mortgagor at the address for Mortgagor provided in Section 29, Notices. 33. Revival Clause. If the incurring of any debt by Mortgagor or the payment of any money or transfer of property to Mortgagee by or on behalf of Mortgagor or any guarantor should for any reason subsequently be determined to be "voidable" or "avoidable" in whole or in part within the meaning of any state or federal law (collectively "voidable transfers"), including, without limitation, fraudulent conveyances or preferential transfers under the United States Bankruptcy Code or any other federal or state law, and Mortgagee is required to repay or restore any voidable transfers or the amount or any portion thereof, or upon the advice of Mortgagee's counsel is advised to do so, then, as to any such amount or property repaid or restored, including all reasonable costs, expenses, and attorneys fees of Mortgagee related thereto, the liability of Mortgagor and any guarantor, and each of them, and this Mortgage, shall automatically be revived, reinstated and restored and shall exist as though the voidable transfers had never been made. 34. Release of Lien. Upon payment and performance in full by Mortgagor of all the obligations secured hereby, Mortgagee shall release the MOligage as required by Wyoming Statutes Annotated § 34-1-132. 35. Multi-State Real Estate Transaction. Mortgagor acknowledges that this Mortgage is one of two or more other deeds of trust and mortgages (hereinafter collectively the "Other 390686 - 13 - ; ·;~~·I:cJ·I:,:;:;:¡:;;!:.r:I:¡:t.·:m¡f:..:t;; ·,...':.,:,·;;:·t.'·-"';'_"l;,'~...;¡'. .'.-'.'._ .·'.·..::~I-!'....:,····· . .-, .;·!''\!i~:t~!I·o·ó·.~I·.·, ··Tltr..,,·.![f'.""i".I'r:"; :.,.:.:..,·..-.-·r.·.~,I;-..' .~-..;-;... "; '~:(.'~'" :':';'·',;¡-o:ll';·'·'· ,...:.....-.. .;. ',:,-'~ó:i;';"';':'; r ("\ On t'''! 6 '" J .,~, Security Documents") which secure the obligations of Mortgagor in whole or in part. Mortgagor agrees that the lien of this Mortgage shall be absolute and unèonditional and shall not in any manner be affected or impaired by any acts or omissions whatsoever of Mortgagee and, without limiting the generality of the foregoing, the lien hereof shall not be impaired by any acceptance by Mortgagee of any security for or guarantees of the obligations of Mortgagor or by any failure, neglect or omission on the part of Mortgagee to realize upon or protect any of the obligations of Mortgagor or any collateral security therefor including the Other Security Documents. The lien hereof shall not in any manner be impaired or affected by any release (except as to the property released), sale, pledge, surrender, compromise, settlement, renewal, extension, indulgence, alteration, changing, modification or any disposition of any of the indebtedness secured hereby or of any of the collateral security therefor, including the Other Security Documents or of any guarantee thereof. Mortgagee may, at its discretion, foreclose, exercise any power of sale or exercise any other remedy available to it under any or all of the Other Security Documents without first exercising or enforcing any of its rights and remedies hereunder, or may foreclose, or exercise any power of sale, or exercise any other right available under this Mortgage without first exercising or enforcing any of its rights and remedies under any or all of the Other Security Documents. Such exercise of Mortgagee's rights and remedies under any or all of the Other Security Documents shall not in any manner impair the indebtedness secured hereby or lien of the Mortgage, and any exercise of the rights or remedies of Mortgagee hereunder shall not impair the lien of any of the Other Security Documents or any of Mortgagee's rights and remedies thereunder. Mortgagor specifically consents and agrees that Mortgagee may exercise its rights and remedies hereunder and under the Other Security Documents separately or concurrently and in any order that Mortgagee may deem appropriate. 36. Governing Law. a. THIS MORTGAGE AND THE OBLIGA TIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF UTAH WITHOUT REGARD TO CHOICE OF LAW RULES AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, PROVIDED HOWEVER, THAT THE PROVISIONS FOR THE CREA TION, PERFECTION AND ENFORCEMENT OF THE LIENS CREATED HEREUNDER WITH RESPECT TO THE REAL PROPERTY AND FOR ANY DEFICIENCY FOLLOWING FORECLOSURE OF THIS MORTGAGE SHALL BE GOVERNED BY THE LAW OF THE STATE IN WHICH THE REAL PROPERTY IS LOCATED TO THE EXTENT NECESSARY FOR THE VALIDITY AND ENFORCEMENT THEREOF. b. EXCEPT AS PROVIDED IN THE ARBITRA nON PROVISIONS OF THE LOAN AGREEMENT, AND EXCEPT FOR ANY LEGAL ACTION OR PROCEEDING TO FORECLOSE THIS MORTGAGE OR ANY ACTION WHICH IS REQUIRED BY THE LAWS OF THE STATE OF WYOMING TO BE BROUGHT IN THE STATE OF WYOMING, WHICH SHALL BE BROUGHT IN THE STATE OF WYOMING, ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS MORTGAGE AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAYBE BROUGHT IN THE COURTS OF THE STATE OF 390686 - 14 - j:::::::~:::~f:::;::;: i1ili~~::;:t' ¡~m:~mI~~m~¡*~Jm :~m~~~¡~!~ " .,', '.'~'.' ..&!I·.·.·J~.·.·, ..-...... '·J~I·. "'-'11 :r.'.,""",.,.... '.¡: ,', ~:b'1" ~t;~~"i..W.~.;' ;;:',,: ..... _. ". ,.; -'~~·.1'.r1"·:·A""r..·~ ..'....',._..............~.......;.. ·:"F,;~·I.'_"¥<'!-i-.,··,·'{:'.!.r:·."...~.:Cf+I;j;.::~·:.,..·.-· . ',' .._; -.. .,........- .:.:...·0: .:.. .;. ': ~ ,._ . " _ ., . ¡~ ;.;....,":.....¡.: .'.", (' ,J 0 ¡~, "'1 7 ., ¡ ·0 { UTAH OR OF THE UNITED STATES OF AMERICA FOR THE DISTRICT OF UTAH. 37. General. All references in this Agreement to the singular shall be deemed to include the plural and vice versa. References in the collective or conjunctive shall also include the disjunctive unless the context otherwise clearly requires a different interpretation. All agreements, representations, warranties and covenants made by Mortgagor shall survive the èxecution and delivery of this Mortgage, the filing and consummation of any bankruptcy proceedings, and shall continue in effect so long as any obligation to Mortgagee secured by this Mortgage is outstanding and unpaid. All agreements, representations, warranties and covenants in this Mortgage shall bind the party making the same and its heirs and successors, and shall be to· the benefit of and be enforceable by each party for whom made and their respective heirs, successors and assigns. [Remainder of Page Intentionally Left Blank] 390686 - 15 - ~ '.'-'.", ""~-<:'~:Y..-:"¡:~'~':~".;"''''.r.><~''''_''''''''':-'-~U>.>;'_''jIo'''.d;''-'''->'''''~~'!:!fl.o.:'2",-:~,1:¡"""_·..,,,.r......: ~'-.' '¡:.r:.··.~..;;.·~!':,t:!:"¡:.·ð'!li!I-..:'..,.·r'·r,""'... -' -".-...~...-.".,;_. ··,-·,1.......·h'~~,,:~.~'....~·"+W....~'I·;'~.· ".'. ""¡"";."''':~I>'::O-''';'·¡O:.·A';'ûi '._ .-.,-.....-::Il~.'....',.,.. . f' ...0 ~""8 i.' U'::; i. IN WITNESS WHEREOF, this Mortgage has been executed the date and year first above wri tten. MORTGAGOR: Maverik, Inc., a Wyoming corporation, individually and doing business as Maverik Country Store By: -:1(f?c;/~ Mi ael Call . . President By: ~{fit- Spencer C. Hewlett Secretary MORTGAGEE: Zions First National Bank, a national banking association, not in its individual capacity but solely as administrative agent for Zions First National Bank and U.S. Bank National Association pursuant to a Second Restated Intercreditor Agreement dated March 31, 2006 By: ~~~~ Ji C. Stanchfiel Vice President 390686 - 16 - ¡mmili~~m~m~uJ ;)m:~::::::§:::i:;~~ I:~:~!~~~~~:~!:!:~:'; 0'.,....,,,.......,.,..', - ._ . ·~"..,:."'..,...·'::~~,·"'.'.··i..,.~-..r.ltl:.<.·_ I.·,· ;: .- .~ - !' ~;..-f:.;,:.;.¡............ ,.,.;;0 ..:""o~"~t"9.'···' ··,'I:'.tI$OJetltW~O!-==-~.!4:!~;.~.,~'l' ;., ": _..": ., '1' i·... ...,'.......o.~~i:·;·~:.¡·._..(O,... "'i~'!~ .,.....,.,.;;o:.:.~,.-, ',' r: {.... C. .~, 1"1 9 '. ,} ..,) ( STATE OF UTAH ) ) ss. COUNTY OF SALT LAKE ) The foregoing instrument was acknowledged before me this 31 st day of March, 2006, by Michael Call and Spencer C. Hewlett, President and Secretary, respectively, of Maverik, Inc., a Wyoming corporation, individually and doing business as Maverik Country Store. NOTARY PUBLIC PAMELA CHITTARO h Templo. #12 15 West souto 84101 Sail Lake City. Ulah . commission E)lÇ¡l'fes December 3. 2006 STAn: 0'" UTAH ~('.M_)' Û;fh. NOTARY PUBLIC. STATE OF UTAH ) ) ss. COUNTY OF SALT LAKE ) The foregoing instrument was acknowledged before me this 31 st day of March, 2006, by Jim C. Stanchfield, Vice President of Zions First National Bank, a national banking association, not in its individual capacity but solely as administrative agent for Zions First National Bank and U.S. Bank National Association pursuant to a Second Restated Intercreditor Agreement dated March 31, 2006. NOTARY PUBLIC PAMELA CHITTARO 15 West South TemplQ, #1200 SallLBke City. Utah 84101 Commission Expites December 3, 2006 STATE 01" UTAH [i¿1, (JL.·(h~ NOTARY PUBLIC 390686 - 17 - 10. ·,'.·_·L·.·.~I·.·'"'"'oIf.!¿~~,·:,~J...·..·..:..!.!'.'-"'":,·Iü;i':.:_ >. .;..·~tI'·.; :i." .".;';"";0 ,'. ':' ". ¡'. . ':,..-;;"~"~,-, ·'·-'_·1"·.··,:.·.'.~·.·.a·-"'!,.J.~r..~..!¡:1' '. ~ .~...¡,."'4._~i!i~"':!l _"1:'f'!I; _·J~I::-""_J:;:i"~,X..:"I'I-·:: . ,.,.... h~,:.:,~.~..,'r't.I.'\,t:;\;~:",;".: . ,".','.'.','.. ": '..¡..~.~...'.' ,':_ , . ' rt"f"'--:a 0 " .) \..', EXHIBIT A Mortgage with Assignment of Rents (Store # 235, Kemmerer, Wyoming Property) Tax Parcel Identification No.: 21162421207000 Legal Description: The Lots numbered Seven (7), Eight (8) and Nine (9) of the Block numbered Fifty-Seven (57) in the Second Addition to the Town of Kemmerer, Lincoln County, Wyoming, as surveyed, platted and recorded. N·!~:::::i::::::~'¡; ,~11:m~:~;:;:;;;:::~::