I have sold a piece of property and I am going to hold a mortgage. How can I record this mortgage in probate court? My state is Alabama.
State/Country relating to question: Alabama
I tried looking on LegalForms.com but found nothing that looked like it related.
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.
Good morning. Your lien securing the promissory note will be evidenced by a Mortgage document. Are you looking for a form for the Mortgage document or are you wondering how to record the Mortgage document?
I need both. A form for the mortgage document and how to record it. The county the property is located in is Cherokee.
Ok...You will record it not in the probate records, but in the real property records of Cherokee County. You will do so by taking it to the county courthouse and asking the recording clerk to have it recorded. I have provided a template for you below for the Mortgage.....
MORTGAGE OF REALESTATE
State of ___________ )
County of___________ )
THISMORTGAGE is dated _______________.
THE"MORTGAGOR" referred to in this Mortgage is ______(insertname)_______________, _______(insert address)______.
THE"MORTGAGEE" is _____(insert name and address)______.
THE"NOTE" is a note from Mortgagor to Mortgagee in the amount of $_________dated __________. The Note and anydocuments renewing, extending or modifying it and any notes evidencing futureadvances are all referred to as the "Note" and are considered to bepart of this Mortgage. The originalstated maturity date of the Note is ___________, and together with any and allother indebtedness now owing or which may hereafter be owing by Mortgagor toMortgagee, however incurred (all of which present and future indebtedness arecollectively referred to herein as the "Secured Indebtedness").
THIS MORTGAGE isgiven to secure to Mortgagee the repayment of the following amounts, withinterest: (a) the indebtedness evidencedby the Note; (b) any Future Advances made under paragraph 2.10 below and suchother indebtedness secured by this instrument and referred to as SecuredIndebtedness, (c) Expenditures by Mortgagee under paragraphs 1.02, 1.03 & 1.05 below; and (d) attorneys' fees, court costs and other amountswhich may be due under the Note and this Mortgage.
In considerationof the above indebtedness and for other valuable consideration which Mortgagoracknowledges receiving, Mortgagor does hereby mortgage, grant and convey toMortgagee, its successors and assigns:
(a) Allthat tract or parcel of land (the Land )lying and being in ___________ County, ___________and being more particularly described on Exhibit "A" attached heretoand incorporated herein by reference; and
(b) All buildings, structures andother improvements of every kind and nature whatsoever now or hereaftersituated on the Land; and all machinery, equipment, fixtures, appliances andbuilding, construction, development and landscaping supplies and materials nowor hereafter placed on or in the Land; and all of the things addressed in thisparagraph (b), whether generally or specifically, shall be deemed to befixtures and accessions to the freehold and a part of the Land as between theparties hereto and all persons claiming, by, through or under either of them;and
(c) All and singular the easements,rights-of-way, strips and gores of land, streets, ways, alleys, passages, sewerrights, waters, water courses, water rights and powers, estates, rights,titles, interests, minerals, royalties, privileges, liberties, tenements,hereditaments and appurtenances whatsoever, in any way now or hereafterbelonging, relating or appertaining to the Land or the improvements now orhereafter located thereon, or any part thereof, whether now owned or hereafteracquired by Mortgagor, and the reversion or reversions, remainder andremainders, rents, issues and profits thereof; and all right to receive excesspayments in any tax sale of the Land and the improvements now or hereafterlocated thereon, or any part thereof; and all the estate, right, title,interest, claim and demand whatsoever of Mortgagor of, in and to the same(collectively hereinafter referred to as the "Property"; and all ofthe same being deemed part of the Property and included in any reference thereto);and
(d) Any and all rents which are now dueor may hereafter become due by reason of the renting, leasing and bailment ofthe Land or the improvements now or hereafter located thereon, or any partthereof; and
(e) Any and all awards or payments, includinginterest thereon, and the right to receive the same, as a result of (i) theexercise of the right of eminent domain, (ii) the alteration of the grade ofany street, or (iii) any other injury to the taking of, or decrease in thevalue of, the Land or the improvements now or hereafter located thereon;
TO HAVE AND TOHOLD all and singular the Property unto Mortgagee and the successors andassigns of Mortgagee forever.
MORTGAGORcovenants that Mortgagor is lawfully seized of the Property in fee simpleabsolute, that Mortgagor has good right and is lawfully authorized to sell,convey or encumber the same, and that the Property is free and clear of allencumbrances except as expressly provided herein. Mortgagor further covenants to warrant andforever defend all and singular the Property unto Mortgagee and the successorsor assigns of Mortgagee from and against Mortgagor and all persons whomsoeverlawfully claiming the same or any part thereof.
PROVIDED ALWAYS,nevertheless, and it is the true intent and meaning of Mortgagor and Mortgagee,that if Mortgagor pays or causes to be paid to Mortgagee that debt securedhereby, the estate hereby granted shall cease, determine and be utterly nulland void; otherwise said estate shall remain in full force and effect.
IT IS AGREEDthat Mortgagor shall be entitled to hold and enjoy the Property until a Defaultas herein defined has occurred.
Mortgagorcovenants and agrees as follows:
1.01. Payment of Secured Indebtedness. Mortgagor shall pay to Mortgagee the SecuredIndebtedness as in the Note and this Mortgage as and when the same becomes dueand payable.
1.02. Payment of Taxes, Etc. Mortgagor shall pay, when due and payable,(a) all taxes, assessments, general or special, and other charges levied on, orassessed, placed or made against the Premises, this Mortgage, the Note or theSecured Indebtedness or any interest of the Mortgagee in the Premises or theobligations secured hereby and (b) premiums on policies of fire and otherhazard insurance covering the Premises, as required in Section 1.03herein. If Mortgagor fails to promptlymake any such payment, then Mortgagee may, at its option, make such payment,without notice, and the amount so advanced shall become part of the SecuredIndebtedness and shall bear interest from the date advanced at the rate ofinterest from time to time in effect in the Note for principal. If, in the opinion of Mortgagee, any state,federal, municipal or other governmental law, order, rule or regulationprohibits Mortgagor from paying any such tax, assessment or other charge orwould penalize Mortgagee if Mortgagor were to make such payment, or if, in theopinion of Mortgagee, the making of such payment might result in the impositionof interest beyond the maximum amount permitted by applicable law, then theSecured Indebtedness shall, at the option of Mortgagee, become immediately dueand payable.
1.03. Insurance. (a) Mortgagor shall keep improvements (if any) on the Premises insured for thebenefit of Mortgagee against loss or damage by fire, lightning, windstorm,hail, collapse, explosion, malicious mischief, riot, riot attending a strike,civil commotion, aircraft, vehicles and smoke and such other hazards asMortgagee may from time to time require, all in amounts approved by Mortgageeat least equal to 100% of full insurable value. All insurance herein provided for shall be in form and with companiesapproved by Mortgagee; and, regardless of the types or amounts of insurancerequired and approved by Mortgagee, Mortgagor shall assign and deliver toMortgagee, as collateral and further security for the payment of the SecuredIndebtedness, all policies of insurance which insure against any loss or damageto the Premises, with loss payable to Mortgagee, without contribution. IfMortgagee, by reason of such insurance, receives any money for loss or damage,such amount shall, at the option of Mortgagee, either be disbursed for therepair and restoration of the Premises in accordance with and subject to theconditions for disbursement that Mortgagee would customarily impose as aprudent lender in a construction or development loan, or retained by Mortgageeand applied toward payment of the Secured Indebtedness. Mortgagee shall in no event be obligated tosee to the proper application of any amount paid over to Mortgagor.
(b) Not less than ten (10) days prior tothe expiration date of each policy of insurance required of Mortgagor pursuantto this 1.03, Mortgagor shall deliver to Mortgagee a renewal policy or policiesmarked "premium paid" or accompanied by other evidence of paymentsatisfactory to Mortgagee.
(c) In the event of a foreclosure of thisMortgage, the purchaser of the Premises shall succeed to all the rights ofMortgagor in and to all policies of insurance required by this 1.03 and allpolicies of insurance assigned or delivered to Mortgagee.
1.04. Condemnation. Notwithstanding any taking of, injury to, ordecrease in the value of, any portion of the Premises by or as the result ofeminent domain, the alteration of the grade of any street, or any other publicor quasi-public action, Mortgagor shall continue to pay principal and intereston the Secured Indebtedness, and any reduction in the Secured Indebtednessresulting from the application by Mortgagee of any award or payment for suchtaking, alteration, injury or decrease in value of the Premises shall be deemedto take effect only on the date of such receipt. Any such award or payment may, at the optionof Mortgagee, be retained and applied by Mortgagee toward payment of theSecured Indebtedness, or be paid over, wholly or in part, to Mortgagor for thepurpose of altering, restoring or rebuilding any part of the Premises which mayhave been altered, damaged or destroyed as a result of any such taking,alteration of grade, or other injury to the Premises, or for any other purposeor object satisfactory to Mortgagee, but Mortgagee shall not be obligated tosee to the application of any amount paid over to Mortgagor. If, prior to the receipt by Mortgagee of suchaward or payment, the Premises shall have been sold on foreclosure of thisMortgage, Mortgagee shall have the right to receive said award or payment tothe extent of any deficiency found to be due upon such sale, whether or not adeficiency judgment on this Mortgage shall have been sought or recovered ordenied, together with legal interest thereon and the costs (including fifteenpercent (15%) of the principal and interest as attorney's fees) incurred byMortgagee in the obtaining and collection of such award or payment.
1.05. Care of Premises. Mortgagor shall maintain the Premises in goodcondition and repair, shall not commit or suffer any waste to the Premises, andshall comply with, or cause to be complied with, all restrictive covenants,statutes, ordinances and requirements of any governmental authority relating tothe Premises and the use thereof or any part thereof. Mortgagor shallpromptly repair, restore, replace or rebuild any part of the Premises, now orhereafter encumbered by this Mortgage, which may be affected by any proceedingof the character referred to in 1.04 herein. No part of the Premises,including, but not limited to, any building, structure, parking lot, driveway,landscape scheme, timber or other ground improvement, equipment or otherproperty, now or hereafter conveyed as security by or pursuant to thisMortgage, shall be removed, demolished or materially altered without the priorwritten consent of Mortgagee. Mortgagor shall complete, within areasonable time, and pay for any building, structure or other improvement atany time in the process of construction on the property herein conveyed. Mortgagee and any persons authorized by Mortgagee shall have the right to enterand inspect the Premises at all reasonable times and access thereto shall bepermitted for that purpose.
1.06. SecurityAgreement. This Mortgage shall alsoconstitute a security agreement within the meaning of the Uniform CommercialCode of the State of ___________ (the "Code") with respect to all thefollowing: (i) all fixtures andpersonal property included (whether generally or specifically) in thedefinition of "Premises" set forth hereinabove and now or hereafteracquired by Mortgagor, and all replacements, substitutions and additionsthereto (the "Fixtures and Personalty"); (ii) all plans,specifications, drawings, surveys, contracts (including contracts with generalcontractors and architects) and subcontracts related to the improvement anddevelopment of the Premises (the "Improvement Documents"); and(iii) all proceeds (including cash proceeds and proceeds of proceeds) ofall of the foregoing (all such Fixtures and Personalty, Improvement Documentsand proceeds are collectively referred to herein as the"Collateral"). Mortgagorhereby grants to Mortgagee a security interest in and to the Collateral andevery component thereof, and does hereby transfer and assign to Mortgagee allof Mortgagor's right, title and interest in and to the Collateral and everycomponent thereof, to secure the payment of the Secured Indebtedness as andwhen the same becomes due and payable. With respect to the Fixtures and Personalty, while an Event of Defaultis subsisting, Mortgagee shall also have the right (i) to proceed againstthe Fixtures and Personalty in accordance with Mortgagee's rights and remedieswith respect to the real property, in which event the provisions of the Codeshall not govern the default and Mortgagee's remedies, or (ii) to proceedagainst the Fixtures and Personalty separately from the real property. When proceeding against any of the Collateralunder the provisions of the Code, ten (10) days' notice of Mortgagee'sdetermination to proceed against such Collateral shall be deemed reasonablenotice. The reasonable expenses ofretaking, holding, preparing for sale and selling the Collateral shall bedeemed to include (without limitation) attorneys' fees equal to fifteen percent(15%) of the unpaid principal and interest.
1.07. Further Assurances. Mortgagor shall execute and deliver (and paythe costs of preparation and recording thereof) to Mortgagee and to anysubsequent holder from time to time, upon demand, any further instrument orinstruments, including, but not limited to, Mortgages, security agreements,financing statements, assignments and renewal and substitution notes, so as toreaffirm, to correct and to perfect the evidence of the obligation herebysecured and the lien of Mortgagee to all or any part conveyed, latersubstituted for, or acquired subsequent to the date of this Mortgage andextensions or modifications thereof. Mortgagor, upon request, made either personally or by mail, shallcertify by a writing, duly acknowledged, to Mortgagee or to any proposedassignee of this Mortgage, the amount of principal and interest then owing onthe Secured Indebtedness and whether or not any offsets or defenses existagainst the Secured Indebtedness, within six (6) days in case the request ismade personally, or within ten (10) days after the mailing of such request incase the request is made by mail.
1.08. Expenses. Upon demand Mortgagor shall pay, or reimburseMortgagee for the payment of, all attorneys' fees, costs and expenses incurredby Mortgagee in any suit, action, legal proceeding or dispute of any kind inwhich Mortgagee is made a party or appears as party plaintiff or defendant,affecting the Secured Indebtedness, this Mortgage or the rights and interestcreated herein, or the Premises, including without limitation, any condemnationaction involving the Premises or any action to protect the security hereof; andany such amounts paid by Mortgagee shall be added to the indebtedness securedby this Mortgage.
1.09. Subrogation. Mortgagee shall be subrogated to the claimsand liens of all parties whose claims or liens are discharged or paid with theproceeds of the Secured Indebtedness or otherwise discharged or paid byMortgagee. Mortgagor waives all rightsof subrogation until all obligations secured hereby have been paid in full.
1.10. Transfer of the Premises. Mortgagor shall not sell, transfer, lease,let, mortgage, pledge, encumber, create a security interest in, or otherwisehypothecate all or any part of the Premises without Mortgagor's prior writtenconsent. Mortgagee may, in its solediscretion, consent to any such sale or transfer, but such consent shall not bedeemed to constitute a novation. ShouldMortgagee consent to such sale or transfer, it will be deemed to have waivedits right to declare an Event of Default for a breach of this 1.10 only if, prior to theconsummation of such sale or transfer: (a) Mortgagee determines that thecredit of the purchaser or transferee is satisfactory; (b) the purchaseror transferee agrees to pay interest on the amount owed to Mortgagee under theNote and under this Mortgage at such rate as Mortgagee may then require;(c) the purchaser or transferee executes an assumption agreementacceptable to Mortgagee that obligates the purchaser or transferee to keep allthe promises and agreements made in the Note and this Mortgage whetheraccording to their original terms or as amended pursuant to the assumptionagreement; and (d) the purchaser or transferee pays the transfer fee thenrequired by Mortgagee. The foregoing provisions will apply to each andevery sale and transfer whether or not the Mortgagee has consented to anyprevious sale or transfer.
1.11. Limit of Validity. If from any circumstance whatsoever thefulfillment of any provision of this Mortgage or the Note, at the time that theperformance of such provision is due, involves transcending the limit ofvalidity presently prescribed by any applicable usury statute or any otherapplicable law, with regard to obligations of like character and amount, then ipso facto the obligation to befulfilled shall be reduced to the limit of such validity, so that in no eventshall any exaction be possible under this Mortgage or the Note that is inexcess of the applicable limit of such validity, but such obligation shall befulfilled to the limit of such validity. The provisions of this 1.11 shallcontrol every other provision of this Mortgage and the Note.
1.12. Hazardous Materials. Mortgagor warrants and represents toMortgagee that, to the best of Mortgagor's knowledge, no portion of thePremises has been used for the storage or dumping of, or has becomecontaminated with, any hazardous materials as contemplated in any federal,state or local law, ordinance or regulation from time to time in effect. Mortgagor covenants and agrees: (i) not to cause or permit the Premises tobe used for the storage or dumping of any such hazardous materials; and(ii) promptly to remove and clean up any such hazardous materials that maynow or hereafter be discovered on the Premises, at Mortgagor's sole cost andexpense.
2.01. Events of Default. Each of the following events shall constitutean "Event of Default" under this Mortgage:
(a) shouldMortgagor fail to pay the Secured Indebtedness or any part thereof when due;
(b) shouldany warranty or representation of Mortgagor herein contained, or contained inany instrument, transfer, certificate, statement, conveyance, assignment orloan agreement given with respect to the Secured Indebtedness, prove untrue ormisleading in any material respect;
(c) shouldthe Premises be subject to actual or threatened waste, or any part thereof beremoved, demolished or materially altered so that the value of the Premises bediminished except as provided for in 1.04;
(d) shouldany federal tax lien or claim of lien for labor or material be filed of recordagainst Mortgagor or against the Premises and not be removed by payment or bondwithin thirty (30) days from date of recording;
(e) shoulda third party assert the priority of a lien, security interest, or Mortgageover that of this Mortgage in any legal proceeding;
(f) shouldMortgagor or any guarantor of the loan secured by this Mortgage (Mortgagor andthe guarantors are referred to in this 2.01 collectively as the "Obligors" and individually as an"Obligor") make any assignment for the benefit of creditors; orshould a receiver, liquidator or trustee of any of the Obligors or of any of anObligor's properties be appointed; or should any petition for the bankruptcy,reorganization or arrangement of an Obligor, pursuant to the Federal BankruptcyCode or any similar federal or state statute, be filed and not dismissed withinninety (90) days; or should an Obligor be adjudicated as bankrupt or insolvent;or should an Obligor in any proceeding admit insolvency or an inability to paydebts as they fall due; or should an Obligor, if a corporation, be liquidatedor dissolved or its articles of incorporation expire or be revoked, or if apartnership or business association, be dissolved or partitioned, or if anindividual, die, or if a trust, be terminated or expire;
(g) ShouldMortgagor fail to keep, observe, perform, carry out and execute in everyparticular the covenants, agreements, obligations and conditions set out in, orshould a breach, default event of default or failure of condition orperformance (however denominated), occur under, this Mortgage or the Notebetween Mortgagor and Mortgagee, or any other document or instrument securingor given with respect to the Secured Indebtedness (this Mortgage, the Note andall such other documents and instruments are collectively referred to herein asthe "Loan Documents");
(h) shouldany event occur under any instrument, Mortgage or agreement, given or made byan Obligor to or with any third party which would authorize the acceleration ofany debt to any such third party, the acceleration of which would materiallyaffect such Obligor's ability to pay when due any amounts owed to Mortgagee;
(i) shouldMortgagee at any time in good faith deem itself insecure in the timelyrepayment of the Secured Indebtedness or in the sufficiency of the security andcollateral therefore;
(j) shouldthere occur any sale, transfer, leasing, or encumbering of all or any portionof the Premises without the prior written consent of Mortgagee, which consentmay be withheld or delayed in the reasonable discretion of Mortgagee;
(k) shouldthere occur any change in the legal or equitable ownership of a controllinginterest in Mortgagor or in the legal or equitable ownership of the Premises,if in Mortgagee's sole judgment such change materially and adversely affectsthe ability of Mortgagor to perform its obligations under the Loan Documents;or
(l) shouldMortgagor default in the performance of its obligations of payment orperformance under any other present or future loan made by Mortgagee toMortgagor.
2.02. Enforcement, etc. If an Event of Default occurs and issubsisting, Mortgagee may do any one or more of the following:
(a) enterupon and take possession of the Premises, with or without the appointment of areceiver or an application therefore, employ a managing agent of the Premisesand let the same, either in its own name, or in the name of Mortgagor, andreceive the rents, incomes, issues and profits of the Premises and apply thesame, after payment of all necessary charges and expenses, on account of theSecured Indebtedness; and Mortgagor will transfer and assign to Mortgagee, inform satisfactory to Mortgagee, Mortgagor's interest as lessor in any lease nowor hereafter affecting the whole or any part of the Premises;
(b) pay any sums in any formor manner deemed expedient by Mortgagee to protect the security of thisinstrument or to cure any Event of Default other than payment of interest orprincipal on the Secured Indebtedness; make any payment hereby authorized to bemade according to any bill, statement or estimate furnished or procured fromthe appropriate public officer or the party claiming payment without inquiryinto the accuracy or validity thereof, and the receipt of any such publicofficer or party in the hands of Mortgagee shall be conclusive evidence of thevalidity and amount of items so paid, in which event the amounts so paid, withinterest thereon from the date of such payment at the default rate of interestspecified in the Note shall be added to and become a part of the SecuredIndebtedness and be immediately due and payable to Mortgagee; and Mortgageeshall be subrogated to any encumbrance, lien, claim or demand, and to all therights and securities for the payment thereof, paid or discharged with theprincipal sum secured hereby or by Mortgagee under the provisions hereof, andany such subrogation rights shall be additional and cumulative security to thisinstrument;
(c) without notice toMortgagor, declare all sums secured by this Mortgage immediately due andpayable and may commence proceedings to collect such sums, foreclose thisMortgage and sell the Property. At theforeclosure Mortgagee shall be entitled to bid and to purchase the Property andshall be entitled to apply the debt secured hereby or any portion thereof, inpayment for the Property. The remediesprovided to Mortgagee in this paragraph shall be in addition to and not in lieuof any other rights and remedies provided in this Mortgage or by law, all ofwhich rights and remedies may be exercised by Mortgagee independently,simultaneously or consecutively in any order without being deemed to havewaived any right or remedy previously or not yet exercised;
(d) foreclose upon the mortgagedpremises and ask for a deficiency judgment pursuant to the applicable state lawgoverning deficiencies and Mortgagor understands and agrees that a deficiencyjudgment, if pursued by Mortgagee shall be determined by the highest price bidat the judicial sale of the property;
(e) pursue suchother rights and remedies as may be available at law or in equity or under theUniform Commercial Code.
2.03. Receiver. Mortgagee, in any action to foreclose thisMortgage, or upon any Event of Default, shall be at liberty to apply for theappointment of a receiver of the rents and profits or of the Premises or bothwithout notice, and shall be entitled to the appointment of such a receiver asa matter of right, without consideration of the value of the Premises assecurity for the amounts due the Mortgagee, or the solvency of any person orcorporation liable for the payment of such amounts.
2.04. Salein Parcels. In case of any saleunder this Mortgage pursuant to any order in any judicial proceedings orotherwise, at the election of Mortgagee the Premises or any part thereof may besold in one parcel and as an entirety, or in such parcels, manner or order asMortgagee in its sole discretion may elect, and one or more exercises of thepowers herein granted shall not extinguish or exhaust the power unless theentire Premises are sold or the Secured Indebtedness paid in full.
2.05. Waiver of Homestead. Mortgagor hereby waives and renounces allright of homestead exemption in the Premises provided by the Constitution orLaws of the United States,the State of ___________, or any other State in the United States.
2.06. Mortgagee's Right to Sue. Mortgagee shall have the right from time totime to sue for any sums, whether interest, principal or any installment ofeither or both, taxes, penalties, or any other sums required to be paid underthe terms of this Mortgage, as the same become due, without regard to whetherall of the Secured Indebtedness shall be due on demand, and without prejudiceto the right of Mortgagee thereafter to enforce any appropriate remedy againstMortgagor, including an action of foreclosure, or any other action, for a defaultor defaults by Mortgagor existing at the time such earlier action wascommenced.
2.07. No Obligation to Marshal Assets. In realizing upon the security and collateralfor the Secured Indebtedness during the subsistence of an Event of Default,Mortgagee shall have no obligation whatsoever to marshal assets, or to realizeupon all of such security and collateral; rather, Mortgagee shall have theright to realize upon all or any part of such collateral from time to time asMortgagee deems appropriate.
2.08. Rights Cumulative. The rights of Mortgagee, granted and arisingunder the clauses and covenants contained in this Mortgage and the other LoanDocuments, shall be separate, distinct and cumulative of other powers andrights herein granted and all other rights which Mortgagee may have at law orin equity, and none of them shall be in exclusion of the others; and all ofthem are cumulative to the remedies for collection of indebtedness, enforcementof rights under Mortgages, and preservation of security as provided at law. No act of Mortgagee shall be construed as an election to proceed underany one provision herein or under the Note or any of the other Loan Documentsto the exclusion of any other provision, or an election of remedies to the barof any other remedy allowed at law or in equity, anything herein or otherwiseto the contrary notwithstanding.
2.09. Discontinuance of Proceedings. If Mortgagee commences the enforcement of anyright, power or remedy, whether afforded under this Mortgage or otherwise, andincluding without limitation foreclosure or entry upon the Premises, and suchenforcement is then discontinued or abandoned for any reason, or is determinedadversely to Mortgagee, then and in every such case Mortgagor and Mortgageeshall be restored to their former positions and rights hereunder, withoutwaiver of any Event of Default and without novation, and all rights, powers andremedies of Mortgagee shall continue as if no such enforcement had beencommenced.
2.10. Future Advances. This Mortgage is granted to secure inaccordance with the applicable state law: (a) all future advances and readvances that may subsequently bemade to Mortgagor by Mortgagee evidenced by the Note, or any other promissorynotes, and all renewals, replacements, modifications and extensions thereof;provided, however, that nothing contained herein shall create an obligation onthe part of Mortgagee to make future advances or readvances to Mortgagor, and(b) all other indebtedness of Mortgagor to Mortgagee now or hereafterexisting, whether direct or indirect, the maximum amount of all indebtednessoutstanding at any one time secured hereby not to exceed twice the face amountof the Note, plus interest thereon, all charges and expenses of collection incurredby Mortgagee, including court costs, and reasonable attorneys' fees; and alsoin order to charge the Mortgaged Property with such payment, performance andobservance.
3.01. Successors and Assigns. This Mortgage shall inure to the benefit ofand be binding upon Mortgagor and Mortgagee and their respective legalrepresentatives, heirs, executors, administrators, successors and assigns. (No right in Mortgagor to sell, transfer orencumber the Premises may be inferred from this paragraph.)
3.02. Terminology. The words "Mortgagor" and"Mortgagee" shall include the legal representatives, heirs,executors, administrators, successors and assigns of the parties hereto, andall those holding under either of them. If more than one party shall execute this Mortgage, the term"Mortgagor" shall mean all parties signing, and each of them, andeach agreement, obligation and Secured Indebtedness of Mortgagor shall be andmean the several as well as joint undertaking of each of them. Pronouns used herein shall include bothgenders and both the singular and the plural, and the grammatical constructionof sentences shall be deemed conformed thereto.
3.03. Captions for Convenience. The captions and headings in this Mortgagehave been provided for convenience only and shall not limit the scope or extentof any provision hereof.
3.04. Severability. If any provision of this Mortgage should beheld by a court of competent jurisdiction to be invalid, illegal orunenforceable, such invalidity, illegality or unenforceability shall not affectthe validity, legality and enforceability of the remaining provisions of thisMortgage.
3.05. Applicable Law. This Mortgage shall be governed by andconstrued in accordance with the laws of the State of ___________.
3.06. Time of the Essence. Time is of the essence of this Mortgage andeach of the other Loan Documents.
3.07. Notice, Etc. Notices and other communications hereundershall be effective if given in writing by hand delivery to the recipientthereof, or by certified United States mail, postage and charges prepaid,addressed to the recipient at the addresses for Mortgagor and Mortgagee setforth on the first page of this Mortgage. Notices given by hand shall be effective upon receipt. Notices given by certified mail shall beeffective on the third (3rd) day after deposit in the United Statesmail, addressed as aforesaid. Eitherparty hereto may change the address for notice by notifying the other partyhereto of the new address in the manner set forth herein for givingnotices. (No obligation on the part ofMortgagee to provide any notice whatsoever may be inferred from this Section.)
3.08. No Implied Waiver by Mortgagee. No indulgence or departure at any time by theMortgagee from any of the provisions hereof, or of any obligation herebysecured, shall modify the same or relate to the future or waive futurecompliance therewith by the Mortgagor.
3.09 Conflict of Laws. If anyprovision of this Mortgage conflicts with applicable law, such
conflictshall not affect other provisions of this Mortgage that can be given effectwithout the conflicting provision, and to this end the provisions of thisMortgage are declared to be severable.
3.10 Right of Inspection. Mortgagee may make or cause to be madereasonable entries upon the inspections of the Property upon giving Mortgagorprior notice.
3.11 Solvency. The undersigned Mortgagor represents toMortgagee that such Mortgagor is benefited by the loan evidenced by the Note,whether or not the Mortgagor is the obligor thereon; that Mortgagor'sobligations under this Mortgage will not render Mortgagor insolvent, and thatadequate and sufficient consideration has been given to Mortgagor for itsexecution and delivery of this Mortgage.
3.12 Waiverof Jury Trial. MORTGAGOR, AFTER CONSULTATION WITH ITSATTORNEYS, HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT ITMAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION, PROCEEDING, LITIGATION ORCOUNTERCLAIM BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THEMORTGAGE, THE NOTE, THE LOAN DOCUMENTS AND ANY OTHER AGREEMENT CONTEMPLATED TOBE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OFDEALING, STATEMENTS, WHETHER VERBAL OR WRITTEN, OR ACTIONS OF EITHERPARTY. THIS PROVISION IS A MATERIALINDUCEMENT FOR THE MORTGAGEE ACCEPTING THIS MORTGAGE.
3.13 Waiverof Appraisal Rights. The lawsof ___________ provide that in any real estate foreclosure proceeding adefendant against whom a personal judgment is taken or asked may within thirtydays after the sale of the Mortgaged Property apply to the court for an orderof appraisal. The statutory appraisalvalue as approved by the court would be substituted for the high bid and maydecrease the amount of any deficiency owing in connection with thetransaction. THE UNDERSIGNED HEREBYWAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BIDAT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANYAPPRAISED VALUE OF THE MORTGAGED PREMISES.
INWITNESS WHEREOF, this Mortgage has been duly executed under seal by Mortgagoras of the day and year first above written.
STATE OF ___________ )
COUNTY OF ___________ )
Personallyappeared before me _____________________________ who, in oath, says that s/hesaw the within named ________________________, sign the within Mortgage of RealEstate, and the said, as its act and deed, deliver the same, and that (s)hewith ________________________________ witnessed the execution thereof.
Swornto before me this _____
day of_____________, ______
29 Years Practicing Law - Including Tax and Estate Planning
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