Exhibit
10.43   MORTGAGE
 
 Definitions:The following
capitalized words and terms shall have the following meanings when used in this
Mortgage. Unless specifically stated to the contrary, all references to dollar
amounts shall mean dollar amounts in lawful money of the United States of
America. Words and terms used in the singular shall include the plural, and the
plural shall include the singular, as the context may require. Words and terms
not otherwise defined in this Mortgage shall have the meanings attributed to
such terms in the Uniform Commercial Code:
 
 Borrower:The word “Borrower”
means D.L. Claire Capital Corporation and includes all co-signers and co-makers
signing the Note.
 
 Environmental Laws:The words
“Environmental Laws” means any and all State, Federal and local statutes,
regulations and ordinances relating to the protection of human health or the
environment, including without limitation the Comprehensive Environmental
Response, compensation and Liability Act of 1980, as amended, 42 U.S.C. Section
9801, et seq. (“CERCLA”), the Superfund Amendments and Reauthorization Act of
1986, Pub. L. No. 99-499 (“SARA”), the Hazardous Materials Transportation Act,
49 U.S.C. Section 1801, et seq., the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901, et seq., or other applicable State or Federal laws, rules
or regulations adopted pursuant thereto.
 
 Event of Default:The words
“Event of Default” mean any of the events of default set forth in the
Note.
 
 Grantor:The word “Grantor”
means Marshall Distributing, Inc.
 
 Guarantor:The word
“Guarantor” means any guarantor, surety or accommodation party of any or all of
the Indebtedness.
 
 Guaranty:The word “Guaranty”
means the guaranty from the Grantor to the Lenders, including without limitation
a guaranty of all or part of the Note.
 
 Hazardous Substances:The
words “Hazardous Substances” mean materials that because of their quantity,
concentration or physical, chemical or infectious characteristics, may cause or
pose a present or potential harm to human health or the environment when
improperly used, treated, stored disposed of, generated, manufactured,
transported or otherwise handled. The words “Hazardous Substances” are used in
their very broadest sense and include without limitation any and all hazardous
or toxic substances, materials or waste as defined or listed under the
Environmental laws. The term “Hazardous Substances” also includes, without
limitation, petroleum and petroleum by-products or any fraction thereof and
asbestos.
  
  Improvements:The word
“Improvements” means all existing and future improvements, buildings,
structures, mobile homes affixed on the Real Property, facilities, additions,
replacements and other construction on the Real Property.
 
 Lenders:The word “Lenders”
means CAMOFI Master LDC and CAMHZN Master LDC, their respective successors and
assigns.
 
 Mortgage:The word “Mortgage”
means this Mortgage between Grantor and Lenders.
 
 Note:The word “Note” means
the promissory note dated as of October 31, 2007 in the original principal
amount of $650,000 from the Borrower to the Lenders, together with all renewals
of, extensions of, modifications of, refinancings of, consolidations of, and
substitutions for the promissory note or agreement.
 
 Personal Property:The words
“Personal Property” mean all the equipment, fixtures and other articles of
personal property now or hereafter owned by Grantor, and now or hereafter
attached or affixed to the Real Property; together with all accessions, parts
and additions to, all replacements of, and all substitutions for, any such
property; and together with all proceeds (including without limitation all
insurance proceeds and refunds of premiums, from any sale or other disposition
of the Property.
 
 Property:The word “Property”
means collectively the Real Property and the Personal Property.
 
 Real Property:The words “Real
Property” mean the real property, interests and rights as further described in
this Mortgage.
 
 Related Documents:The words
“Related Documents” mean all promissory notes, credit agreements, loan
agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and all other
instruments agreements and documents, whether now or hereafter existing,
executed in connection with the Indebtedness.
 
 Rents:The word “Rents” means
all present and future rents, revenue, income, issues, royalties, profits and
other benefits derived from the Properties.
 
 THIS MORTGAGE, dated as of
October 31, 2007, is made and executed between Marshall Distributing, Inc.
(“Grantor”) and CAMOFI Master LDC and CAMHZN Master LDC whose address is 350
Madison Avenue, New York, New York, 10017 (“Lenders”).
 
 GRANT OF MORTGAGE: For
valuable consideration, Grantor mortgages and conveys to Lenders all of
Grantor’s right, title and interest in and to the following described real
property, together with all existing or subsequently erected buildings,
improvements and fixtures; all easements, rights of way, and appurtenances; all
water, water rights, watercourses and ditch rights (including stock in utilities
with ditch or irrigation rights); and all other rights, royalties and profits
relating to the real property, including without limitation all minerals, oil,
gas, geothermal and similar matters, (the “Real Property”) located in Salt Lake
County, State of Utah: The Real Property is specifically described as
follows:
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  LOT
3C:
 
 HORIZON
WEST INDUSTRIAL PARK, AMENDED LOT 3, IN THE CITY OF SALT LAKE, COUNTY OF SALT
LAKE, STATE OF UTAH, ACCORDING TO THE OFFICIAL PLAT THEREOF ON FILE IN THE
OFFICE OF THE RECORDER OF SAID COUNTY.
 
 Cross-Collateralization:In
addition to the Guaranty, this Mortgage secures all obligations, debts and
liabilities, plus interest thereon, of the Borrower to the Lenders.
 
 Mortgage Void On Full Payment:When the Borrower pays all amounts due under the Note, the Lenders’s
rights under the Note and this Mortgage shall end. At the request and expense of
the Borrower, the Lenders shall cancel this Mortgage of Record.
 
 Covenants
of Grantor:
 
 Compliance:The Grantor shall
comply with, or cause the Borrower to comply with, the terms of the Note, this
Mortgage and the Related Documents;
 
 Payments:The Grantor shall
cause the Borrower to make all payments due under the Note and this
Mortgage;
 
 Ownership:The Grantor owns
and has the right to mortgage the Property to the Lenders. The Grantor shall
defend this ownership against all claims;
 
 Payment of Taxes:The Grantor
shall pay when due all real estate taxes, assessments, water and sewer charges
and other charges against the Property.
 
 No Credit for Taxes Paid:The
Grantor and/or Borrower shall not claim or be entitled to any credit against the
principal or interest under the Note or this Mortgage for taxes paid on the
Property. The Grantor shall not claim any deduction from the taxable value of
the Property because of this Mortgage.
 
 Hazard Insurance:The Grantor
shall maintain hazard insurance on the Property. This insurance must cover loss
or damage caused by fire and other hazards normally included under “extended
coverage” insurance. It must also include such other hazard coverage as the
Lenders may reasonably require. If the Property is in a Federal or State flood
hazard zone, the Grantor shall maintain flood insurance. The insurance company,
agent or broker, amounts of coverage, and forms of all policies must be
acceptable to the Lenders. The Lenders may require that the amount of the
coverage be the greater of (1) the principal of the Note or (2) the current
replacement value of the buildings and other improvements to the extent
available. The coverage must be furnished by one insurance company. There can be
no co-insurance or sharing of the risk by more than one company. The Grantor
shall pay all premiums when due. The Grantor shall deliver the original policies
and all renewals to the Lenders if so required.
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  All
policies shall state that the insurance company cannot cancel or refuse to renew
without at least 10 days notice to the Lenders. They shall include “standard
mortgage clauses” naming the Lenders. All insurance proceeds shall be paid to
the Lenders. In case of loss or damage the Grantor shall promptly notify the
insurance company and the Lenders. The Grantor shall promptly (1) file a proof
of loss with the insurance company, and (2) settle the claim. If not, the
Lenders may use the insurance proceed received to (1) repair and restore the
Property or (2) reduce the principal due under the Note. The Lenders shall use
any money left after the repair and restoration to reduce the principal due
under the Note. The Lenders shall pay to the Grantor any money left after paying
the entire principal and interest due under the Note.
 
 Repairs:The Grantor shall
keep the Property in good repair. The Grantor shall not damage, destroy or
abandon the Property. The Lenders may inspect the Property upon reasonable
notice to the Grantor. The Grantor shall make repairs as may reasonably be
required by the Lenders.
 
 Changes in Property:The
Grantor shall not do any of the following to the Property without the written
consent of the Lenders: (i) remove, demolish or materially alter any buildings
or other improvements, (ii) remove any fixtures, and (iii) give a security
interest in any fixtures. If any fixture is destroyed or removed, the Grantor
shall replace it with another of at least equal quality and
condition.
 
 Eminent Domain:Eminent domain
is the right of the government to lawfully condemn and take private property for
public purpose. Fair value must be paid for the taking. The taking may occur
either by court order or by deed to the condemning party. If all or any part of
the Property is taken by eminent domain, the entire payment shall be given to
the Lenders. The Lenders may use the payment to (1) repair and restore the
Property or (2) reduce the principal due under the Note. The Lenders shall use
any money left after the repair and restoration to reduce the principal. This
shall not change the amounts or due dates of the payments under the Note. The
Lenders shall pay to the Grantor any money left after paying the entire
principal and interest.
 
 Lenders’s Right of Acceleration:The Lenders has the right, called acceleration, to declare the entire
unpaid principal and interest under the Note and this Mortgage due immediately
for any of the following reasons: (i) the occurrence of an Event of Default,
(ii) the failure if the Borrower to make any payment of principal or interest
under the Note by its due date; (iii) the failure of the Grantor to keep any
other promise in this Mortgage within 5 days after written notice from the
Lenders; (iv) any change in ownership of the all or part of the Property; (v) a
change in management of the Borrower; (vi) the commencement of foreclosure or
execution proceedings by the holder of any other mortgage or lien on the
Property; (vi) the commencement of bankruptcy, receivership or insolvency
proceedings by or against the Borrower or the Grantor. The Lenders’s failure to
declare acceleration for any cause shall not prevent the Lenders from declaring
acceleration for any cause occurring later in time.
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  Lenders’s Rights on Acceleration:If the Lenders declares acceleration, the Borrower shall immediately pay
to the Lenders the entire unpaid principal and interest due under the Note and
this Mortgage. If the Borrower does not do so, the Lenders shall have all rights
given to mortgage lenders by law and under this Mortgage, for example: (i) to
enter and take possession of the Property in a lawful way to manage the
Property; (ii) to ask a court to appoint a receiver of rents of the Property.
The Grantor consents to the appointment of a receiver, (iii) to start a court
action known as foreclosure to take away all of the Grantor’s rights in the
Property and to have the Property sold. A foreclosure sale is a court-ordered
sale of the Property. The proceeds of the sale are used to pay the entire unpaid
principal and interest due under the Note and this Mortgage, plus all costs
allowed by law, (iv) the court-ordered sale of the Property in the foreclosure
may not bring in enough money to pay the entire amount due under the Note and
this Mortgage plus costs. The Lenders may then sue the Borrower under the Note
for the difference. The Lenders reserves any rights given by law to sue under
the Note before beginning a foreclosure action under this Mortgage.
 
 Notices:All notices under
this Mortgage must be in writing. They may be given by (a) personal delivery, or
(b) certified mail, return receipt requested. Each party must accept and claim
the notices given by the other. Notices shall be addressed to the other party at
the address written at the beginning of this Mortgage. Either party may notify
the other of a change of address.
 
 Non-Liability of Lenders:The
relationship between Borrower and Grantor and Lenders created by this Mortgage
is strictly a debtor and creditor relationship and not fiduciary in nature, nor
is the relationship to be construed as creating any partnership or joint venture
between Lenders and Borrower and Grantor.
 
 Merger:There shall be no
merger of the interest or estate created by this Mortgage with any other
interest or estate in the Property at any time held by or for the benefit of
Lenders in any capacity, without the written consent of the
Lenders.
 
 Successors and Assigns:Subject to any limitations stated in this Mortgage on transfer of
Grantor’s interest, this Mortgage shall be binding upon and inure to the benefit
of the parties, their successors and assigns.
 
 Time is of the Essence: Time
is of the essence in the performance of this Mortgage.
 
 
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REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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  JURY
WAIVER:All parties to this Mortgage hereby
waive the right to any jury trial in any action, proceeding or counterclaim
brought by any party against the other.
 EACH
GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS MORTGAGE, AND EACH
GRANTOR AGREES TO ITS TERMS. EACH GRANTOR ACKNOWLEDGES RECEIPT, WITHOUT CHARGE,
OF A TRUE AND CORRECT COPY OF THIS MORTGAGE.
 THIS
MORTGAGE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS MORTGAGE IS AND SHALL
CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO
LAW.
 GRANTOR:
 MARSHALL
DISTRIBUTING, INC.
 
 By:
              /s/
      Rick Bailey
              (Seal)Name:
              Rick
      BaileyTitle:
              President
 
 Signed,
acknowledged and delivered in the presence of:
 
 x
              /s/
      illegibleWitnessx
              /s/
      illegibleWitness
 
 
 INDIVIDUAL
ACKNOWLEDGEMENT
 
 STATE
      OF NEVADA
              
              ))
              ss:COUNTY
      OF CLARK
              
              )
 
 I am an
officer authorized to take acknowledgments and proofs in the State of Nevada. I sign this
acknowledgement below to certify that it was made before me.
 
 On October 31, 2007
appeared before me in person Richard A. Bailey. I
am satisfied that this person is the individual named in and who signed this
Document. This person acknowledged signing, sealing and delivering this Document
on behalf of Marshall Distributing, Inc. for the uses and purposes expressed in
this Document.
 
 
 /s/
      Penelope A. StoweNotary
      Public


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