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HomeMy WebLinkAbout969226RECORDATION REQUESTED BY: Maci Management Services LLC 2345 North Woodruff Avenue Idaho Falls, ID 83401 WHEN RECORDED MAIL TO: Maci Management Services LLC 2345 North Woodruff Avenue Idaho Falls, ID 83401 MORTGAGE 1 00548 RECEIVED 1/30/2013 at 11:02 AM RECEIVING 969226 BOOK: 803 PAGE: 548 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY SPACE ABOVE THIS LINE IS FOR RECORDER'S USE ONLY KNOW ALL MEN BY THESE PRESENTS, that Marvin Lee Schwab, of P.O. Box 1121, Afton, WY 83110, as Mortgagor, for good and valuable consideration, and to secure that certain Personal Guaranty dated of even date herewith in favor of Maci Management Services LLC, a limited liability company, organized under the laws of the state of Idaho, having a principal place of business at 2345 North Woodruff Avenue, Idaho Falls, ID 83401, as Mortgagee, and to induce the Mortgagee to purchase certain equipment or Licensed Property from Polyguard LLC pursuant to that certain Licensing Agreement, and to secure that certain Licensing Agreement, including, without limitation, the full and complete performance and payment thereof, hereby mortgages to Mortgagee, the following described real estate, situated in the County of Lincoln, State of Wyoming, including, without limitation, any and all right, title, and interest of the Mortgagor therein: All real property described in Exhibit A attached and incorporated herein by this reference (the "Real Property Including any and all improvements thereon, together with the tenements, hereditaments, and appurtenances thereto belonging, and the rents, issues and profits thereof; And further including any and all existing or subsequently erected or affixed buildings; any and all fixtures, including, without limitation, any and all plumbing, lighting, electrical, heating, air conditioning, cooling, and ventilating systems; any and all easements and rights of way; any and all water, water rights, irrigation equipment, pumps, pivots, lines, pipes, hand lines, and sprinklers; any and all ditches and ditch rights; any and all crops, timber, grazing rights, governmental payments, participation payments, set aside payments, diversion payments, and third party payments of whatever kind and nature; and any and all royalties or other rights of whatever kind or nature that relate or otherwise pertain to the Real Property, including, without limitation, any and all mineral, oil, gas, geothermal, and similar rights. In addition, the Mortgagor hereby assigns any and all leases that relate or otherwise pertain to the Real Property to the Mortgagee, including, without limitation, the right, title, and interest of the Mortgagor therein. This assignment is absolute, unconditional, and irrevocable. 00549 The leases include, without limitation, any and all current and future leases, subleases, licenses, agreements, and other understandings and arrangements that relate or otherwise pertain to the use, occupancy, or possession of the Real Property, including any and all extensions, renewals, modifications, or replacements thereof. In addition, the Mortgagor hereby assigns any and all rents that relate or otherwise pertain to the Real Property to the Mortgagee, including, without limitation, the right, title, and interest of the Mortgagor therein. This assignment is absolute, unconditional, and irrevocable. The rents include, without limitation, any and all current and future rents, issues, profits, minimum rents, percentage rents, additional rents, security deposits, common area charges, operation and maintenance charges, fees, revenues, royalties, proceeds, accounts, general intangibles, and other rights that relate or otherwise pertain to the use, occupancy, or possession of the Real Property. If any of the foregoing constitutes or is otherwise deemed to be personal property, this Mortgage shall constitute and be deemed to be a security agreement. The Mortgagee shall have all of the rights and remedies of a secured party under the Uniform Commercial Code, as amended. Mortgagor shall keep the improvements located on the property fully insured against fire and other perils with an insurance company duly licensed in the State of Wyoming to provide such insurance, shall deliver a certificate of insurance to Mortgagee at least annually, and shall pay the premium therefor. Mortgagor also agrees to pay all taxes and assessments on said premises, including any assessments that may be levied on water rights or shares of stock used in connection therewith, or held as collateral with the above note; also any tax that may be assessed by reason of this mortgage or the debt secured thereby, and reasonable attorney's fees in case of foreclosure, or the commencement of any legal proceedings for foreclosure of the same, and said attorney's fees shall be added to the amount due on this mortgage, and made a lien on the premises described herein. In case of default in the performance of any covenant herein contained, including the Personal Guaranty secured hereby or the Licensing Agreement secured hereby, this mortgage may be foreclosed at the option of the legal holder. In the event of default, Mortgagor grants to Mortgagee a Power of Sale to foreclose on and sell said property at public auction pursuant to W.S. §34 -4 -101 et seq., or its successor. This Mortgage is given to secure (a) the full and complete performance and payment of the Personal Guaranty of M. Lee Schwab to the Mortgagee; (b) the full and complete performance and payment of the Personal Guaranty of Daryl Lynn Schwab to the Mortgagee; (c) the full and complete payment of any and all debts, liabilities, or other obligations under this Mortgage; (d) the full and complete performance of the terms and conditions of this Mortgage; (e) the full and complete performance and payment of any and all extensions, renewals, refinancings, or other modifications, amendments, or other changes of this Mortgage; and (f) the full and complete performance and payment of the Licensing Agreement between the Mortgagee and Polyguard LLC, including, without limitation, a minimum Royalty Payment of $2,100,000.00 in accordance with Section 3 of the Licensing Agreement —to wit, an annual Royalty Payment for a term of 10 years after the execution of the Licensing Agreement in an amount equal to the greater of $210,000.00 or $10.00 times the number of sold Licensed Articles under the Licensing Agreement. 2 COVENANTS AND WARRANTIES. The Mortgagor hereby covenants, warrants, represents, and agrees: 3. That the Mortgagor will maintain casualty insurance, naming the Mortgagee as a loss payee, on all buildings, fixtures, and other improvements against loss or damage by fire or other risk or casualty; that the Mortgagor will maintain liability insurance; that the Mortgagor will obtain flood insurance at any time it is determined that any building, fixture, or other improvement is located, in whole or in part, within a flood hazard area; that the Mortgagor will pay all premiums and charges on all such insurance when due; and that the Mortgagor will provide Mortgagee with satisfactory evidence of all such insurance upon request. All such insurance shall be in such forms, with such companies, and in such amounts as shall be satisfactory to the Mortgagee. 3 0055n This Mortgage is also given to secure (a) the full and complete payment of any and all advances, future advances, and other value given from the Mortgagee to the Mortgagor, including, without limitation, any and all amounts that the Mortgagee expends or otherwise disburses for the benefit of the Mortgagor or the Real Property, for the protection of the Real Property, or for the protection or enforcement of the Mortgagee's rights under the foregoing Personal Guaranty, Licensing Agreement, and this Mortgage; (b) the full and complete payment of any and all costs and attorney's fees, including, without limitation, attorney's fees on appeal. 1. That the Mortgagor has good and marketable title to the Real Property; that the Mortgagor owns the Real Property in fee simple; that the Real Property is free from any and all mortgages, deeds of trust, liens, security interests, financing statements, fixture filings, taxes, levies, assessments, and other encumbrances of whatever kind or nature; provided, however, Mortgagor and Mortgagee understand and agree that all of the above described real estate is already subject to certain prior mortgage(s) and other encumbrances of record, and therefore this mortgage is subject to those prior mortgage(s) and other encumbrances of record; that the Mortgagor has the lawful authority and right to convey and encumber the Real Property under this Mortgage; and that the Mortgagor will defend and indemnify the Mortgagee against any and all claims for relief, causes of action, or other demands, whether with or without suit, that relate or otherwise pertain to the Real Property. 2. That the Mortgagor will keep the Real Property, including, without limitation, any and all buildings, fixtures, and other improvements, now or hereafter existing, in good condition; that the Mortgagor will not commit waste of the Real Property or allow or otherwise permit any waste, impairment, or deterioration of the Real Property; that the Mortgagor will not commit any nuisance on the Real Property or allow or otherwise permit any nuisance on the Real Property; that the Mortgagor will not remove, demolish, or materially alter any building or other improvement or allow or otherwise permit the removal, demolition, or material alteration of any building or other improvement without the written consent of the Mortgagee; that the Mortgagor, in a good and workmanlike manner, will promptly repair, replace, or otherwise restore any building or other improvement that may be damaged or destroyed; that the Mortgagor will, in a good and husbandlike manner, maintain and cultivate the Real Property, using customary and reasonable methods for preserving the fertility and productivity thereof; and that the Mortgagor will not change or otherwise alter the use of the Real Property or do or take any action that will or may reduce the value of the Real Property. 4 4. That the Mortgagor will not apply or enter into any federal, state, or other program of whatever kind or nature that limits or otherwise restricts the use of the Real Property in any way without the prior written consent of the Mortgagee. 5. That the Mortgagor will pay any and all debts, liabilities, and other obligations that are secured hereby when due or otherwise upon demand; that the Mortgagor will pay any and all taxes, assessments, levies, or other charges of whatever kind or nature against the Real Property when due; and that the Mortgagor will not suffer or otherwise permit any lien, assessment, or other charge or encumbrance of whatever kind or nature against the Real Property that will take priority over or otherwise be superior to this Mortgage. 6. That, upon default, the Mortgagor will deliver and tender any and all rents, royalties, and other amounts that relate or otherwise pertain to the Real Property to the Mortgagee, including, without limitation, insurance proceeds, condemnation awards, and any and all payments of whatever kind or nature; that the Mortgagee has the right to apply the foregoing to any portion of the indebtedness that is secured hereby; and that the Mortgagee has the right to enter the Real Property and to inspect the Real Property. 7. That the Mortgagor will comply with any and all laws, ordinances, statutes, regulations, and other covenants, conditions, and restrictions that affect the Real Property or its use, including, without limitation, all environmental laws; that the Mortgagor will not use or permit the use of the Real Property for any unlawful or illegal purpose or for any purpose that poses an unreasonable risk of harm or that impairs or may impair the value of the Real Property or any part thereof; that the Mortgagor will not apply waste water or other waste or residue from any treatment facility to the Real Property without the prior written consent of the Mortgagee; that the Mortgagor will remedy any environmental contamination or violation of environmental laws that may occur or be discovered in the future; that the Mortgagee has the right to access the Real Property and to test and monitor the Real Property for compliance with all applicable laws; that any and all inspections or tests made by the Mortgagee shall be for the Mortgagee's purposes only and shall not be construed to create or otherwise impose any responsibility or liability on the Mortgagee; that the Mortgagor will forward copies of any notices received from any environmental agencies to the Mortgagee; that the Mortgagor will provide the Mortgagee with copies of any and all tests, inspections, or other reports that relate or otherwise pertain to the environmental status of the Real Property; and that the Mortgagor will indemnify and forever hold the Mortgagee harmless from and against any and all claims for relief, causes of action, or demands that relate or otherwise pertain to the Real Property, including, without limitation, any and all costs and attorney's fees, including attorney's fees on appeal. 8. That neither the Mortgagor nor any prior owner of the Real Property has caused, created, suffered, or otherwise permitted conditions on the Real Property that may give rise to environmental liability; that no enforcement actions are pending or threatened; that no underground tanks are located on the Real Property; and that no underground tanks have been previously located on the Real Property. 9. That the Mortgagor will pay any and all assessments, levies, or other charges for the water rights that relate or otherwise pertain to the Real Property when due; and that the Mortgagor will do and take any and all actions that are necessary to perfect and maintain such water rights. 5 0055f 10. That the Real Property is liable for the entire indebtedness that is secured by this Mortgage, including, without limitation, any and all debts, liabilities, or other obligations, any and all advances, future advances, and other value, and any and all amounts or other charges of whatever kind and nature; that the Mortgagee has the right to release or otherwise discharge this Mortgage at any time, with or without notice in advance, without releasing or otherwise discharging the liability or responsibility of any third party, including, without limitation, any personal guarantor; and that the Mortgagee has the right to release or otherwise discharge any or all of the Real Property that is subject to this Mortgage at any time, with or without notice, without releasing or otherwise discharging the balance or remainder of the Real Property that is subject to this Mortgage or the liability or responsibility of any third party, including, without limitation, any personal guarantor. 11. That, in the event of any default under this Mortgage, the Licensing Agreement, or the Personal Guaranty of M. Lee Schwab to the Mortgagee, the Mortgagee may, at its option, (a) demand the full and immediate payment of the Personal Guaranty or the Licensing Agreement; (b) demand the full and immediate payment of the entire indebtedness or any portion thereof that is secured by this Mortgage, including, without limitation, any and all debts, liabilities, or other obligations and any and all amounts or other charges of whatever kind and nature; (c) perform any act for or on behalf of the Mortgagor; (d) pay or otherwise advance any amount for or on the account of the Mortgagor; (e) do or take any and all actions that are necessary to protect or otherwise enforce the Mortgagee's rights against the Real Property and /or under the Personal Guaranty, the Licensing Agreement, or this Mortgage. The foregoing rights and remedies are non exclusive. The foregoing rights and remedies and any and all other rights and remedies of the Mortgagee are cumulative and may be exercised simultaneously. 12. That, if the Mortgagor is in default under this Mortgage, or if the Mortgagor breaches, fails to perform, or otherwise violates any term or condition of this Mortgage, the Mortgagee may, without notice to or consent from the Mortgagor, perform, execute, or otherwise complete such term or condition. 13. That the Mortgagor shall be in default if (a) the Mortgagor breaches, fails to perform, or otherwise violates any term or condition of this Mortgage; (b) the Mortgagor contracts or sells, conveys, grants, assigns, or otherwise transfers any portion of the Real Property or any portion of the Mortgagor's right, title, and interest in such Real Property to any third party or any other person or entity, whether voluntarily, by operation of law, or otherwise; (c) a receiver or trustee is appointed for or over the Real Property or any portion thereof; (d) any proceeding or action is commenced or otherwise filed under the bankruptcy laws or any insolvency laws by or against the Mortgagor; (e) the Mortgagor becomes insolvent; (f) any proceeding or action is commenced or otherwise filed to foreclose or otherwise enforce any mortgage, lien, security interest, or other encumbrance against the Real Property or any portion thereof; or (g) the Mortgagee, in good faith, believes or otherwise deems itself to be insecure. 14. That, upon default, any amount that is secured by this Mortgage, including, without limitation, any and all debts, liabilities, or other obligations, any and all advances, future advances, and other value, and any and all amounts or other charges of whatever kind and nature, shall accrue interest at the rate of 12.0 percent per annum from the date of default thereof until paid in full. 005C 15. That no amendment or other modification or change of this Mortgage is valid, effective, or otherwise enforceable unless the Mortgagor and the Mortgagee execute the applicable amendment or other modification or change in writing. 16. That the Mortgagor shall immediately correct the legal description of the Real Property in this Mortgage if such legal description is incorrect or otherwise invalid or unenforceable. 17. That the Mortgagor shall bear all risk of loss of the Real Property. 18. That the Mortgagor is subject to the jurisdiction of the state of Wyoming; that the state of Wyoming has jurisdiction over the subject matter of this Mortgage; and that the proper venue of any and all claims for relief or other causes of action that arise in connection with, that proximately result from, or that relate or otherwise pertain to this Mortgage is Lincoln County, Wyoming. 19. That the laws of the state of Wyoming govern this Mortgage, including, without limitation, its interpretation and construction. 20. That no waiver of any right, remedy, or other option of the Mortgagee is valid, effective, or otherwise enforceable against the Mortgagee unless the Mortgagor and the Mortgagee execute a waiver of such right, remedy, or other option in writing; that any act or other decision of the Mortgagee not to exercise any right, remedy, or other option shall not bar, estop, or otherwise preclude the Mortgagee from exercising such right, remedy, or other option in the future; and that the failure or omission of the Mortgagee to exercise any right, remedy, or other option shall not bar, estop, or otherwise preclude the Mortgagee from exercising such right, remedy, or other option in the future. 21. That this Mortgage is binding upon the Mortgagor, including the Mortgagor's successors and assigns, and that this Mortgage shall inure to the benefit of the Mortgagee, including the Mortgagee's successors and assigns. The Mortgagor cannot assign or otherwise transfer this Mortgage to any third party or to any other person or entity without the written consent of the Mortgagee; in this regard, the Mortgagor may assign or otherwise transfer this Mortgage if the Mortgagee agrees and duly approves and consents to the assignment or transfer in advance and in writing. The Mortgagee may assign or otherwise transfer this Mortgage without the consent of the Mortgagor. 22. That, if the Mortgagee incurs any costs or attorney's fee to protect or otherwise enforce its rights under this Mortgage or the Promissory Note, whether with or without suit, the Mortgagor agrees to reimburse the Mortgagee and to pay such costs and /or attorney's fee, including, without limitation, attorney's fees on appeal. 23. That this Mortgage and the covenants, warranties, representations, and agreements herein shall not merge, extinguish or otherwise cease to exist because of foreclosure, transfer of the Real Property, or otherwise. 24. That this Mortgage and the covenants, warranties, representations, and agreements herein shall remain in full force and effect until fully performed. 25. That the Mortgagor will execute any and all instruments or other documents that the Mortgagee deems necessary to implement, enforce, or otherwise effectuate this Mortgage. 6 26. LEFT BLANK INTENTIONALLY. Maci Management Services LLC 2345 North Woodruff Avenue Idaho Falls, ID 83401 0055. 27. That information concerning this Mortgage may be obtained from the Mortgagee at the following address: 28. That this Mortgage is sufficient as a financing statement; and that this Mortgage shall be filed for record in the real estate records. 29. That any notice under this Mortgage shall be served by delivering such notice to the party in person or by sending such notice to the party by first class mail, postage prepaid. If a notice is served by first class mail, the notice shall be sent to the address of such party in this Mortgage or to such other address as the party hereafter designates in writing. The Mortgagor agrees to notify the Mortgagee in writing of any change in the Mortgagor's name, address, or other applicable information. The Mortgagee agrees to notify the Mortgagor in writing of any change in the Mortgagee's name, address, or other applicable information. 30. That "time is of the essence." The Mortgagor hereby acknowledges and agrees that the Mortgagor has read, understands, approves, accepts, and agrees to this Mortgage. (END) 7 IN WITNESS WHEREOF, Mortgagor has executed this Mortgage as of the 29th day of January, 2013. STATE OF WYOMING ss. COUNTY OF LINCOLN GERALD L. GOULDING NOTARY PUBLIC County of State of Lincoln Wyoming My Commission Expires May 2, 2015 My commission expires: May 2, 2015. By: 8 The foregoing Mortgage was acknowledged before me by Marvin Lee Schwab this 29th day of January, 2013. Witness my hand and official seal. TARY PUBLIC Exhibit A All of Lot 4 of the Twin Cliffs Subdivision, being located in Lincoln County, Wyoming, filed December 7, 1990, as Instrument No. 726579 in the Office of the Lincoln County Clerk. 9 005