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MORTGAGE
This Mortgage is made the 13th day of June, 2006, by and between Kehr Levy,
LLC, a Wyoming Limited Liability Company, hereinafter referred to as the
"Mortgagor", and David Tibbits and Stephanie Heigel, hereinafter referred to as
"Mortgagee" .
The Mortgagor, for and in consideration of the sum of Four Hundred Thousand
Dollars ($400,000.00) lawful money of the United States and other valuable
consideration, loaned to the Mortgagor by the Mortgagee, the receipt of which is
hereby confessed and acknowledged, does hereby mortgage to the Mortgagee forever,
the following described real property situate in the County of Lincoln, State of
Wyoming:
See Exhibit A attached hereto.
Together with all buildings and improvements thereon, or which may hereafter
be placed thereon; all fixtures now or hereafter attached to said premises; all water and
water rights, ditches and ditch rights, reservoirs and reservoir rights, and irrigation and
drainage rights; and all easements, appurtenances and incidents now or hereafter
belonging or appertaining there to; subject, however, to all covenants, conditions,
easements, and rights-of-way, and to mineral, mining and other exceptions,
reservations and conditions of record.
TO HAVE AND TO HOLD the said real and personal property forever, the
"7, I Mortgagor hereby relinquishing and waiving all rights under and by virtue of the
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homestead exemption laws of the State of Wyoming.
Mortgagor covenants that at the signing and delivery of this Mortgage, said
Mortgagor is lawfully possessed of said personal property; is lawfully seized in fee
simple of said real property, or has such other estate as is stated herein; has good and
lawful right to mortgage, sell and convey all of said property; and warrants and will
defend the title to all of said property against all lawful claims and demands, and that
the same is free from all encumbrances.
However, this Mortgage is subject to the express condition that if the Mortgagor
pays, or causes to be paid, to the Mortgagee the sum of Four Hundred Thousand
Dollars ($400,000.00), together with interest, until paid, according to the conditions of a
Promissory Note of even date herewith, which Promissory Note was executed and
delivered by the Mortgagor to the Mortgagee, which sum or sums of money the
Mortgagor hereby covenants to pay, and until such payment, performs all of the
covenants and agreements herein to be performed by Mortgagor, then this Mortgage
RECEIVED 6/14/2006 at 11 :16 AM
1 RECEIVING # 919323
BOOK: 623 PAGE: 238
[§!j¡~~mw~:j JEANNE WAGNERi'}:>:;;:¡i'Fj
'LlNCOLN COUNTY CLERK, KEMivi¡!t~;ËR, WY
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and said note shall cease and be null and void.
Mortgagor and Mortgagee further covenant and agree as follows:
1.
Payment.
Mortgagor shall pay the indebtedness as herein provided,
and the lien of this instrument shall remain in full force and effect during any
postponement or extension of time of payment of any part of the indebtedness secured
hereby.
2.
Prepayments.
Mortgagor may make prepayment during the first
year of this note provided Mortgagor pay a prepayment penalty in an amount equal
to one year's interest, ie. $28,000.00. In the event of such prepayment, Mortgagor
shall receive a credit against the prepayment penalty equal to the accrued interest paid
as a result of such prepayment. Mortgagor may make prepayment during the second
year of this note without premium or penalty of any kind.
3. Transfer of the Property. If all or any part of the property or any interest
herein is sold or transferred by any means by Mortgagor without Mortgagee's prior
written consent, excluding the creation of a lien or encumbrance subordinate to this
Mortgage or a transfer by devise, descent or by operation of law upon the death of a
joint tenant, Mortgagee may, at Mortgagee's option, declare all the sums secured by
this Mortgage to be immediately due and payable. Any delay or failure on the part of
the Mortgagee to demand payment shall not prejudice the Mortgagee's right there to.
Mortgagee shall have waived such option to accelerate if, prior to the sale or transfer,
Mortgagee at Mortgagee's sole discretion, enters into a written agreement with the
person whom the property is to be sold or transferred expressly consenting to such
assumption and setting forth any new terms or conditions of this Mortgage as may be
requested by the Mortgagee in exchange for the Mortgagee agreeing to an assumption
of this Mortgage.
4.
Taxes and Assessments.
Mortgagor shall pay all taxes and
assessments levied or assessed against said property.
5. Maintenance of Property. Mortgagor shall not commit or permit waste,
nor be negligent in the care of said property, and shall maintain the same in as good
condition as at present, reasonable wear and tear excepted, and will do nothing on or in
connection with said property which may impair the security of the Mortgagee
hereunder. Mortgagor shall not permit said property, or any part hereof, to be levied
upon or attached in any legal or equitable proceeding, and shall not, except with the
consent in writing of the Mortgagee, or as is otherwise provided and permitted in this
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Mortgage, remove or attempt to remove said improvements or personal property, or
any part hereof, from the premises on which the same are situated.
6. Insurance. As collateral and further security for the payment of the
indebtedness hereby secured, Mortgagor shall keep the improvements now existing or
hereinafter erected on said premises insured against loss cau,sed by the elements, fire,
earthquake, and other calamities, with extended coverage provisions, to the full
insurable value thereof for the term of this Mortgage, and will pay when due all
premiums on such insurance. All insurance shall be carried in responsible insurance
companies licensed in Wyoming and the policies and renewals thereof shall have
attached thereto by rider or otherwise loss payable clauses in favor of the Mortgagee.
A copy of said policy or any renewal documents pertaining thereto shall be supplied to
the Mortgagee within 30 days after the date of execution of this mortgage and
thereafter within 10 days of any renewal of or amendment to such policy. The
insurance proceeds, or any part thereof, may, at the option of the Mortgagor, be
applied either to the reduction of the indebtedness hereby secured or used in
reconstruction. In the event of foreclosure of this mortgage or other transfer of title to
the said premises in extinguishment of the indebtedness secured hereby, all right, title
and interest of the Mortgagor in and to any insurance policies then in force shall pass to
the purchaser or grantee.
N otwi thstanding the foregoing, insurance shall not be required as long as there
are no improvements on the property.
7.
Mortgagee Authorized to Make Payments.
If Mortgagor defaults in
the payment of the taxes, assessments or other lawful charges, including any
construction loan payments or fails to keep the improvements on said premises insured
as herein provided, the Mortgagee may, without notice or demand, pay the same, and
if the Mortgagor fails to keep said property in good repair, the Mortgagee may make
such repairs as may be necessary to protect the property, all at the expense of the
Mortgagor. The Mortgagor covenants and agrees that all such sums of money so
expended, together with all costs of enforcement or foreclosure, and a reasonable
attorney fee, shall be added to the debt hereby secured, and agrees to repay the same
and all expenses so incurred by the Mortgagee, with interest thereon from the date of
payment at the same rate as provided in the note hereby secured, until repaid, and the
same shall be a lien on all of said property and be secured by this Mortgage.
8.
Default.
If the Mortgagor defaults in the payment of the
indebtedness hereby secured, for a period of ten (10) days after written notice, or fails
to keep the improvements on said premises insured as herein provided, or in case of
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breach of any covenant or agreement herein contained, the whole of the then
indebtedness secured hereby, both principal and interest, together with all other sums
payable pursuant to the provisions hereof, shall, at the option of the Mortgagee,
become immediately due and payable, anything herein or in said note to the contrary
notwithstanding, and failure to exercise said option shall not constitute a waiver of the
right to exercise the same in the event of any subsequent default. The Mortgagee may
enforce the provisions of, or foreclose, this Mortgage by any appropriate suit, action or
proceeding at law or in equity, and cause to be executed and delivered to the purchaser
or purchasers at any foreclosure sale a proper deed of conveyance of the property so
sold. The Mortgagor hereby grants the Mortgagee the power to foreclose by
advertisement and sale as provided by statute. All remedies provided in this Mortgage
are distinct and cumulative to any other right or remedy under this Mortgage or
afforded by law or equity and may be exercised concurrently, independently or
successively. The Mortgagor agrees to pay all costs of enforcement or foreclosure,
including a reasonable attorney fee. The failure of the Mortgagee to foreclose promptly
upon a default shall not prejudice any right of said Mortgagee to foreclose thereafter
during the continuance of such default or right to foreclose in case of further default or
defaults. The net proceeds from such sale shall be applied to the payment of: first, the
costs and expenses of the foreclosure and sale, including a reasonable attorney fee, and
all moneys expended or advanced by the Mortgagee pursuant to the provisions of this
Mortgage; second, all unpaid taxes, assessments, claims and liens on said property,
which are superior to the lien hereof; third, the balance due Mortgagee on account of
principal and interest on the indebtedness hereby secured; and the surplus, if any, shall
be paid to the Mortgagor.
9.
Sufficiency of Foreclosure Proceeds.
If the property described herein
is sold under foreclosure and the proceeds are insufficient to pay the total indebtedness
hereby secured, the Mortgagor executing the note or notes for which this Mortgage is
security shall be personally bound to pay the unpaid balance, and the Mortgagee shall
be entitled to a deficiency judgment.
10.
Assignment of Rents.
If the right of foreclosure accrues as a result of
any default hereunder, the Mortgagee shall at once become entitled to exclusive
possession, use and enjoyment of all propertl; aforesaid.. and to all rents, issues and
profits thereof, from the accruing of such right and during the pendency of foreclosure
proceedings and the period of redemption, and such possession, rents, issues and
profits shall be delivered immediately to the Mortgagee on request. On refusal, the
delivery of such possession, rents, issues and profits may be enforced by the Mortgagee
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by any appropriate suit, action or proceeding. Mortgagee shall be entitled to a Receiver
for said property and all rents, issues and profits thereof, after any such default,
including the time covered by foreclosure proceedings and the period of redemption,
and without regard to the solvency or insol vency of the Mortgagor, or the then owner
of said property, and without regard to the value of said property, or the sufficiency
thereof to discharge the Mortgage debt and foreclosure costs, fees and expense. Such
Receiver may be appointed by any court of competent jurisdiction upon ex parte
application, notice being hereby expressly waived, and the appointment of any such
Receiver on any such application without notice is hereby consented to by the
Mortgagor. All rents, issues and profits, income and revenue of said property shall be
applied by such Receiver according to law and the orders and directions of the court.
11. Inspection. Mortgagee may make or cause to be made reasonable
entries upon and inspections of the property, provided that Mortgagee shall give
Mortgagor notice prior to any such inspection specifying reasonable cause therefor
related to Mortgagee's interest in the property.
12.
Condemnation.
The proceeds of any award or claim for damages,
direct or consequential, in connection with any condemnation or other taking of the
property, or part hereof, or for conveyance in lieu of condemnation, are hereby
assigned and shall be paid to Mortgagee. In the event of a total taking of the property,
the proceeds shall be applied to the sums secured by this Mortgage with the excess, if
any, paid to Mortgagor. In the event of a partial taking of the property, unless
Mortgagor and Mortgagee otherwise agree in writing, there shall be applied to the
sums secured by this Mortgage such proportion of the proceeds as is equal to that
proportion which the amount of the sums secured by this Mortgage immediately prior
to the date of taking bears to the fair market value of the property immediately prior to
the date of taking, with the balance of the proceeds paid to Mortgagor. If the property
is abandoned by Mortgagor, or if, after notice by Mortgagee to Mortgagor that the
condemnor offers to make an award or settle a claim for damages, Mortgagor fails to
respond to Mortgagee within 30 days after the date such notice is mailed, Mortgagee is
authorized to collect and apply the proceeds, at Mortgagee's option, either to
restoration or repair of the property or to reduce the sums secured by this Mortgage.
Unless Mortgagee and Mortgagor otherwise agree in writing, any such application of
proceeds to principal shall not extend or postpone the due date of the installments
referred to above or change the amount of such installments.
13. Statement. That the Mortgagee, within ten (10) days upon request m
person or within thirty (30) days upon request by mail, will furnish a written statement
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duly acknowledged of the amount due on this Mortgage and whether any offsets or
defenses exist against the mortgage debt.
14.
Notices.
All notices, demands or other writing in this Mortgage
provided to be given, made or sent by either party to the other shall be in writing and
shall be validly giv~n or made only if personally delivered with a receipt obtained from
the person receiving the notice, or sent by certified United States mail return receipt
requested, or if sent by Federal Express or other similar delivery service keeping
records of deliveries and attempted deliveries. Service shall be conclusively deemed
made upon receipt if personally delivered or, if delivered by mail or delivery service, on
the first business day delivery is attempted or upon receipt, whichever is sooner. The
parties mailing addresses are as follows:
Mortgagor:
P. O. Box 3695
Jackson, WY 83001
Mortgagee:
620 14th Street
Santa Monica, CA 90402
15. Headings. The headings used in this Mortgage are for convemence
only and are not to be used in its construction.
16. Binding Effect and Constnlction. The covenants herein contained shall
bind, and the benefits and advantages shall inure to, the respective heirs, devisees,
legatees, executors, administrators, successors and assigns of the parties hereto.
Whenever used the singular number shall include the plural, the plural the singular, and
the use of any gender shall include all genders. The term "note" includes all notes herein
described if more than one. The terms "foreclosures" and "foreclose" as used herein,
shall include the right of foreclosure by any suit, action or proceeding at law of in
equity, or by advertisement and sale of said premises, or in any other manner now or
hereafter provided by Wyoming statutes, including the power to sell. The acceptance
of this mortgage and the note or notes it secures, by the Mortgagee shall be an
acceptance of the terms and conditions contained therein.
17.
Release.
Upon payment of all sums secured by this Mortgage,
Mortgagee shall release this Mortgage without charge to Mortgagor. Mortgagor shall
pay all costs of recordation, if any.
18.
Waiver of Homestead.
Mortgagor hereby relinquishes and waives all
rights under and by virtue of the homestead exemption laws of the State of Wyoming.
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IN WITNESS WHEREOF, the said Mortgagor has hereunto signed and sealed
these presents the day and year first above written.
Kehr Levy, LLC
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By: Catherine Kehr, Member
STATE OF [)Jv¡ DCM L~
COUNTY OF 0-1lJ,J
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The foregoing instrument was acknowledged before me this I ~f1¿-ay of June,
2006 by Remy Levy and Catherine Kehr, in their capacity as the Member$' of Kehr
Levy, LLC, a Wyoming Limited Liability Company.
WITNESS my hand and official seal.
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MAe¡ t WVUE - NOTA.RY PUBliC otary u, I~ .
Countyf)f .';.~\\ St,i.,1,tr!,o1 ., My CommIssIOn expnes: 10 (Ç (l...-OO 0,
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Exhibit "A"
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C00245
That parr (If the SE'ASEIA of Section 19 and that part of the NE'ANE\4 of Section 30, T37N,
R118W, Lincoln County, Wyoming, being part of those tracts of record in the Oftice of the
Clerk of Lincoln County in Book 195 of Photostatic records on page 426 and in 1300k 90 of
Pho[ostatÌC records on pag~ 474, described as follows:
COMMENCING at [he souÛJwest corner of the P~ters Subdivision of record in said Oftïce as Plat
No. 348, on the west line of said SE 1A SE ~ I 8000 -06.1'E, 868.71 feet from the northwest corner
of said SE 'A SE \4 ;
thence N89°-59.5'E, 486.43 feet, along the south line of said Subdivision, to the POINT
OF BEGINNING;
thence continuing N89°~59.5'E, 317.25 feet to the southeast corn~r of said Subdivision;
thence SOO°·OO.S'B, 1188.32 feet, along east line of said tract inBook 195, to a pipe on
the Palisades Reservoir Take Line;
thence coursing said Take Line as follows:
N63c-46.S'W, 160:39 feet to an angle point;
N53°-22.9'W, 215.82 feet to a point;
thence NOOo-OO.S'W, 988.70 feet, parallel with said east line to the· POINT OF
BEGINNING.
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