replied 4 years ago.
No worries. I have attached both below for you. :)
Borrower’s Mailing Address: ___________________
Place for Payment: _____________________
Principal Amount: ______________________
Annual Interest Rate:
A per annum rate equal to the lesser of: (i) __%, or (ii) the Maximum Rate (as hereinafter defined) with interest to be calculated on a 365 or 366 day year, as applicable.
Maturity Date: ___________________
Annual Interest Rate on Matured, Unpaid Amounts:
The lesser of: (i) the maximum per annum rate of interest permitted by applicable law (the “Maximum Rate”) or (ii) 10% per annum. For purposes hereof and _________ law, the Maximum Rate shall be the weekly ceiling rate as provided in the applicable sections of the _________ Finance Code, as currently in force and as same may be amended from time to time.
Terms of Payment:
The Principal Amount and all outstanding and all accrued unpaid interest thereon shall be due and payable in full on the Maturity Date.
Borrower promises to pay to the order of Lender the Principal Amount, together with interest on the outstanding Principal Amount from day to day remaining unpaid at the Annual Interest Rate. This Note is payable at the Place for Payment and according to the Terms of Payment. All unpaid amounts are due by the Maturity Date. After the Maturity Date, Borrower promises to pay any unpaid principal balance plus interest at the Annual Interest Rate on Matured, Unpaid Amounts. This Note may be prepaid at any time, in whole or in part, without penalty or other charge.
If Borrower shall fail, refuse or neglect to pay, or cause the payment of all sums due and payable under this Note, or under any instrument relating to or securing the payment of this Note, as the same shall become due and payable and such failure is not cured within five (5) days after receipt by Borrower of written notice from Lender of such failure, then Lender shall have the option, to the extent permit¬ted by applicable law, to declare this Note due and payable, whereupon the entire unpaid principal balance of this Note and all accrued unpaid interest thereon shall thereupon at once mature and become due and payable without presentment, demand, protest or notice of any kind (including, but not limited to, notice of intention to accelerate or notice of acceleration), all of which are hereby expressly waived by Borrower.
Borrower also promises to pay collection fees and the reasonable attorneys’ fees of Lender, in addition to all other amounts owing hereunder.
It is the intention of the parties hereto to comply with applicable usury laws; accordingly, it is agreed that notwith¬standing any provisions to the contrary in this Note, or in any document securing payment hereof or otherwise relating hereto, in no event shall this Note or such documents require the payment or permit the collection of interest in excess of the maximum amount permitted by such laws. If any such excess of interest is contracted for, charged or received, under this Note or under any of the instruments securing payment hereof or other¬wise relating hereto, or in the event the maturity of the indebt¬edness evidenced by this Note is accelerated in whole or in part, or in the event that all or part of the principal or interest of this Note shall be prepaid, so that under any of such circumstanc¬es the amount of interest contracted for, charged or received under this Note or under any of the instruments securing payment hereof or otherwise relating hereto, on the amount of principal actually outstanding from time to time under this Note, shall exceed the maximum amount of interest permitted by applicable usury laws, then in any such event (a) the provisions of this paragraph shall govern and control, (b) neither the Borrower hereof nor any other person or entity now or hereafter liable for the payment hereof shall be obligated to pay the amount of such interest to the extent that it is in excess of the maximum amount of interest permitted by applicable usury laws, (c) any such excess which may have been collected shall be either applied as a credit against the then unpaid principal amount hereof (in the inverse order of maturity) or refunded to Borrower, at the holder’s option, and (d) the effective rate of interest shall be automati¬cally reduced to the maximum lawful contract rate allowed under applicable usury laws as now or hereafter construed by the courts having jurisdiction thereof. It is further agreed that without limitation of the foregoing, all calculations of the rate of interest contracted for, charged or received under this Note or under such other documents which are made for the purposes of determining whether such rate exceeds the maximum lawful contract rate, shall be made, to the extent permitted by applicable laws, by amortizing, prorating, allocating and spreading in equal parts during the period of the full stated term of the loan evidenced hereby, all interest at any time contracted for, charged or received from Borrower or otherwise by the holder or holders hereof in connection with such loan.
This Note shall be governed by and construed in accordance with the laws of the State of _________ and applicable federal laws, and is intended to be performed in accordance with, and only to the extent permitted by, such laws. If any provision of this Note or the application hereof to any person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, neither the remainder of this Note nor the application of such provision to any other person or circumstance shall be affected thereby, but rather same shall be enforced to the greatest extent permitted by law.
Any notice or request required or permitted to be delivered to Borrower or Lender by the terms of this Note shall be in writing and deemed to be received, whether or not actually received, three(3) business days after deposit of such notice in the U.S. Mail, postage prepaid, certified or registered mail, return receipt requested, addressed to Borrower or Lender, as the case may be, at the addresses set forth above, or at such other address as Borrower or Lender may specify in writing to the other party in accordance herewith. Notwithstanding the foregoing, actual notice, however received, shall be always be effective upon receipt thereof.
MORTGAGE OF REAL ESTATE
STATE OF ___________ )
COUNTY OF ___________ )
THIS MORTGAGE is dated _______________.
THE "MORTGAGOR" referred to in this Mortgage is ______(insert name)_______________, _______(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 any documents renewing, extending or modifying it and any notes evidencing future advances are all referred to as the "Note" and are considered to be part of this Mortgage. The original stated maturity date of the Note is ___________, and together with any and all other indebtedness now owing or which may hereafter be owing by Mortgagor to Mortgagee, however incurred (all of which present and future indebtedness are collectively referred to herein as the "Secured Indebtedness").
THIS MORTGAGE is given to secure to Mortgagee the repayment of the following amounts, with interest: (a) the indebtedness evidenced by the Note; (b) any Future Advances made under paragraph 2.10 below and such other indebtedness secured by this instrument and referred to as Secured Indebtedness, (c) Expenditures by Mortgagee under paragraphs 1.02, 1.03 & 1.05 below; and (d) attorneys' fees, court costs and other amounts which may be due under the Note and this Mortgage.
In consideration of the above indebtedness and for other valuable consideration which Mortgagor acknowledges receiving, Mortgagor does hereby mortgage, grant and convey to Mortgagee, its successors and assigns:
(a) All that tract or parcel of land (the Land )lying and being in ___________ County, ___________ and being more particularly described on Exhibit "A" attached hereto and incorporated herein by reference; and
(b) All buildings, structures and other improvements of every kind and nature whatsoever now or hereafter situated on the Land; and all machinery, equipment, fixtures, appliances and building, construction, development and landscaping supplies and materials now or hereafter placed on or in the Land; and all of the things addressed in this paragraph (b), whether generally or specifically, shall be deemed to be fixtures and accessions to the freehold and a part of the Land as between the parties 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, sewer rights, 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 hereafter belonging, relating or appertaining to the Land or the improvements now or hereafter located thereon, or any part thereof, whether now owned or hereafter acquired by Mortgagor, and the reversion or reversions, remainder and remainders, rents, issues and profits thereof; and all right to receive excess payments in any tax sale of the Land and the improvements now or hereafter located 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 of the same being deemed part of the Property and included in any reference thereto); and
(d) Any and all rents which are now due or may hereafter become due by reason of the renting, leasing and bailment of the Land or the improvements now or hereafter located thereon, or any part thereof; and
(e) Any and all awards or payments, including interest thereon, and the right to receive the same, as a result of (i) the exercise of the right of eminent domain, (ii) the alteration of the grade of any street, or (iii) any other injury to the taking of, or decrease in the value of, the Land or the improvements now or hereafter located thereon;
TO HAVE AND TO HOLD all and singular the Property unto Mortgagee and the successors and assigns of Mortgagee forever.
MORTGAGOR covenants that Mortgagor is lawfully seized of the Property in fee simple absolute, 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 all encumbrances except as expressly provided herein. Mortgagor further covenants to warrant and forever defend all and singular the Property unto Mortgagee and the successors or assigns of Mortgagee from and against Mortgagor and all persons whomsoever lawfully 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 secured hereby, the estate hereby granted shall cease, determine and be utterly null and void; otherwise said estate shall remain in full force and effect.
IT IS AGREED that Mortgagor shall be entitled to hold and enjoy the Property until a Default as herein defined has occurred.
Mortgagor covenants and agrees as follows:
1.01. Payment of Secured Indebtedness. Mortgagor shall pay to Mortgagee the Secured Indebtedness as in the Note and this Mortgage as and when the same becomes due and 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, or assessed, placed or made against the Premises, this Mortgage, the Note or the Secured Indebtedness or any interest of the Mortgagee in the Premises or the obligations secured hereby and (b) premiums on policies of fire and other hazard insurance covering the Premises, as required in Section 1.03 herein. If Mortgagor fails to promptly make any such payment, then Mortgagee may, at its option, make such payment, without notice, and the amount so advanced shall become part of the Secured Indebtedness and shall bear interest from the date advanced at the rate of interest 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 regulation prohibits Mortgagor from paying any such tax, assessment or other charge or would penalize Mortgagee if Mortgagor were to make such payment, or if, in the opinion of Mortgagee, the making of such payment might result in the imposition of interest beyond the maximum amount permitted by applicable law, then the Secured Indebtedness shall, at the option of Mortgagee, become immediately due and payable.
1.03. Insurance. (a) Mortgagor shall keep improvements (if any) on the Premises insured for the benefit 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 as Mortgagee may from time to time require, all in amounts approved by Mortgagee at least equal to 100% of full insurable value. All insurance herein provided for shall be in form and with companies approved by Mortgagee; and, regardless of the types or amounts of insurance required and approved by Mortgagee, Mortgagor shall assign and deliver to Mortgagee, as collateral and further security for the payment of the Secured Indebtedness, all policies of insurance which insure against any loss or damage to the Premises, with loss payable to Mortgagee, without contribution. If Mortgagee, by reason of such insurance, receives any money for loss or damage, such amount shall, at the option of Mortgagee, either be disbursed for the repair and restoration of the Premises in accordance with and subject to the conditions for disbursement that Mortgagee would customarily impose as a prudent lender in a construction or development loan, or retained by Mortgagee and applied toward payment of the Secured Indebtedness. Mortgagee shall in no event be obligated to see to the proper application of any amount paid over to Mortgagor.
(b) Not less than ten (10) days prior to the expiration date of each policy of insurance required of Mortgagor pursuant to this 1.03, Mortgagor shall deliver to Mortgagee a renewal policy or policies marked "premium paid" or accompanied by other evidence of payment satisfactory to Mortgagee.
(c) In the event of a foreclosure of this Mortgage, the purchaser of the Premises shall succeed to all the rights of Mortgagor in and to all policies of insurance required by this 1.03 and all policies of insurance assigned or delivered to Mortgagee.
1.04. Condemnation. Notwithstanding any taking of, injury to, or decrease in the value of, any portion of the Premises by or as the result of eminent domain, the alteration of the grade of any street, or any other public or quasi-public action, Mortgagor shall continue to pay principal and interest on the Secured Indebtedness, and any reduction in the Secured Indebtedness resulting from the application by Mortgagee of any award or payment for such taking, alteration, injury or decrease in value of the Premises shall be deemed to take effect only on the date of such receipt. Any such award or payment may, at the option of Mortgagee, be retained and applied by Mortgagee toward payment of the Secured Indebtedness, or be paid over, wholly or in part, to Mortgagor for the purpose of altering, restoring or rebuilding any part of the Premises which may have 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 purpose or object satisfactory to Mortgagee, but Mortgagee shall not be obligated to see to the application of any amount paid over to Mortgagor. If, prior to the receipt by Mortgagee of such award or payment, the Premises shall have been sold on foreclosure of this Mortgage, Mortgagee shall have the right to receive said award or payment to the extent of any deficiency found to be due upon such sale, whether or not a deficiency judgment on this Mortgage shall have been sought or recovered or denied, together with legal interest thereon and the costs (including fifteen percent (15%) of the principal and interest as attorney's fees) incurred by Mortgagee in the obtaining and collection of such award or payment.
1.05. Care of Premises. Mortgagor shall maintain the Premises in good condition and repair, shall not commit or suffer any waste to the Premises, and shall comply with, or cause to be complied with, all restrictive covenants, statutes, ordinances and requirements of any governmental authority relating to the Premises and the use thereof or any part thereof. Mortgagor shall promptly repair, restore, replace or rebuild any part of the Premises, now or hereafter encumbered by this Mortgage, which may be affected by any proceeding of 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 other property, now or hereafter conveyed as security by or pursuant to this Mortgage, shall be removed, demolished or materially altered without the prior written consent of Mortgagee. Mortgagor shall complete, within a reasonable time, and pay for any building, structure or other improvement at any time in the process of construction on the property herein conveyed. Mortgagee and any persons authorized by Mortgagee shall have the right to enter and inspect the Premises at all reasonable times and access thereto shall be permitted for that purpose.
1.06. Security Agreement. This Mortgage shall also constitute a security agreement within the meaning of the Uniform Commercial Code of the State of ___________ (the "Code") with respect to all the following: (i) all fixtures and personal property included (whether generally or specifically) in the definition of "Premises" set forth hereinabove and now or hereafter acquired by Mortgagor, and all replacements, substitutions and additions thereto (the "Fixtures and Personalty"); (ii) all plans, specifications, drawings, surveys, contracts (including contracts with general contractors and architects) and subcontracts related to the improvement and development of the Premises (the "Improvement Documents"); and (iii) all proceeds (including cash proceeds and proceeds of proceeds) of all of the foregoing (all such Fixtures and Personalty, Improvement Documents and proceeds are collectively referred to herein as the "Collateral"). Mortgagor hereby grants to Mortgagee a security interest in and to the Collateral and every component thereof, and does hereby transfer and assign to Mortgagee all of Mortgagor's right, title and interest in and to the Collateral and every component thereof, to secure the payment of the Secured Indebtedness as and when the same becomes due and payable. With respect to the Fixtures and Personalty, while an Event of Default is subsisting, Mortgagee shall also have the right (i) to proceed against the Fixtures and Personalty in accordance with Mortgagee's rights and remedies with respect to the real property, in which event the provisions of the Code shall not govern the default and Mortgagee's remedies, or (ii) to proceed against the Fixtures and Personalty separately from the real property. When proceeding against any of the Collateral under the provisions of the Code, ten (10) days' notice of Mortgagee's determination to proceed against such Collateral shall be deemed reasonable notice. The reasonable expenses of retaking, holding, preparing for sale and selling the Collateral shall be deemed 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 pay the costs of preparation and recording thereof) to Mortgagee and to any subsequent holder from time to time, upon demand, any further instrument or instruments, including, but not limited to, Mortgages, security agreements, financing statements, assignments and renewal and substitution notes, so as to reaffirm, to correct and to perfect the evidence of the obligation hereby secured and the lien of Mortgagee to all or any part conveyed, later substituted for, or acquired subsequent to the date of this Mortgage and extensions or modifications thereof. Mortgagor, upon request, made either personally or by mail, shall certify by a writing, duly acknowledged, to Mortgagee or to any proposed assignee of this Mortgage, the amount of principal and interest then owing on the Secured Indebtedness and whether or not any offsets or defenses exist against the Secured Indebtedness, within six (6) days in case the request is made personally, or within ten (10) days after the mailing of such request in case the request is made by mail.
1.08. Expenses. Upon demand Mortgagor shall pay, or reimburse Mortgagee for the payment of, all attorneys' fees, costs and expenses incurred by Mortgagee in any suit, action, legal proceeding or dispute of any kind in which Mortgagee is made a party or appears as party plaintiff or defendant, affecting the Secured Indebtedness, this Mortgage or the rights and interest created herein, or the Premises, including without limitation, any condemnation action involving the Premises or any action to protect the security hereof; and any such amounts paid by Mortgagee shall be added to the indebtedness secured by this Mortgage.
1.09. Subrogation. Mortgagee shall be subrogated to the claims and liens of all parties whose claims or liens are discharged or paid with the proceeds of the Secured Indebtedness or otherwise discharged or paid by Mortgagee. Mortgagor waives all rights of 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 otherwise hypothecate all or any part of the Premises without Mortgagor's prior written consent. Mortgagee may, in its sole discretion, consent to any such sale or transfer, but such consent shall not be deemed to constitute a novation. Should Mortgagee consent to such sale or transfer, it will be deemed to have waived its right to declare an Event of Default for a breach of this 1.10 only if, prior to the consummation of such sale or transfer: (a) Mortgagee determines that the credit of the purchaser or transferee is satisfactory; (b) the purchaser or transferee agrees to pay interest on the amount owed to Mortgagee under the Note and under this Mortgage at such rate as Mortgagee may then require; (c) the purchaser or transferee executes an assumption agreement acceptable to Mortgagee that obligates the purchaser or transferee to keep all the promises and agreements made in the Note and this Mortgage whether according to their original terms or as amended pursuant to the assumption agreement; and (d) the purchaser or transferee pays the transfer fee then required by Mortgagee. The foregoing provisions will apply to each and every sale and transfer whether or not the Mortgagee has consented to any previous sale or transfer.
1.11. Limit of Validity. If from any circumstance whatsoever the fulfillment of any provision of this Mortgage or the Note, at the time that the performance of such provision is due, involves transcending the limit of validity presently prescribed by any applicable usury statute or any other applicable law, with regard to obligations of like character and amount, then ipso facto the obligation to be fulfilled shall be reduced to the limit of such validity, so that in no event shall any exaction be possible under this Mortgage or the Note that is in excess of the applicable limit of such validity, but such obligation shall be fulfilled to the limit of such validity. The provisions of this 1.11 shall control every other provision of this Mortgage and the Note.
1.12. Hazardous Materials. Mortgagor warrants and represents to Mortgagee that, to the best of Mortgagor's knowledge, no portion of the Premises has been used for the storage or dumping of, or has become contaminated 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 to be used for the storage or dumping of any such hazardous materials; and (ii) promptly to remove and clean up any such hazardous materials that may now or hereafter be discovered on the Premises, at Mortgagor's sole cost and expense.
2.01. Events of Default. Each of the following events shall constitute an "Event of Default" under this Mortgage:
(a) should Mortgagor fail to pay the Secured Indebtedness or any part thereof when due;
(b) should any warranty or representation of Mortgagor herein contained, or contained in any instrument, transfer, certificate, statement, conveyance, assignment or loan agreement given with respect to the Secured Indebtedness, prove untrue or misleading in any material respect;
(c) should the Premises be subject to actual or threatened waste, or any part thereof be removed, demolished or materially altered so that the value of the Premises be diminished except as provided for in 1.04;
(d) should any federal tax lien or claim of lien for labor or material be filed of record against Mortgagor or against the Premises and not be removed by payment or bond within thirty (30) days from date of recording;
(e) should a third party assert the priority of a lien, security interest, or Mortgage over that of this Mortgage in any legal proceeding;
(f) should Mortgagor or any guarantor of the loan secured by this Mortgage (Mortgagor and the 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; or should a receiver, liquidator or trustee of any of the Obligors or of any of an Obligor's properties be appointed; or should any petition for the bankruptcy, reorganization or arrangement of an Obligor, pursuant to the Federal Bankruptcy Code or any similar federal or state statute, be filed and not dismissed within ninety (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 pay debts as they fall due; or should an Obligor, if a corporation, be liquidated or dissolved or its articles of incorporation expire or be revoked, or if a partnership or business association, be dissolved or partitioned, or if an individual, die, or if a trust, be terminated or expire;
(g) Should Mortgagor fail to keep, observe, perform, carry out and execute in every particular the covenants, agreements, obligations and conditions set out in, or should a breach, default event of default or failure of condition or performance (however denominated), occur under, this Mortgage or the Note between Mortgagor and Mortgagee, or any other document or instrument securing or given with respect to the Secured Indebtedness (this Mortgage, the Note and all such other documents and instruments are collectively referred to herein as the "Loan Documents");
(h) should any event occur under any instrument, Mortgage or agreement, given or made by an Obligor to or with any third party which would authorize the acceleration of any debt to any such third party, the acceleration of which would materially affect such Obligor's ability to pay when due any amounts owed to Mortgagee;
(i) should Mortgagee at any time in good faith deem itself insecure in the timely repayment of the Secured Indebtedness or in the sufficiency of the security and collateral therefore;
(j) should there occur any sale, transfer, leasing, or encumbering of all or any portion of the Premises without the prior written consent of Mortgagee, which consent may be withheld or delayed in the reasonable discretion of Mortgagee;
(k) should there occur any change in the legal or equitable ownership of a controlling interest in Mortgagor or in the legal or equitable ownership of the Premises, if in Mortgagee's sole judgment such change materially and adversely affects the ability of Mortgagor to perform its obligations under the Loan Documents; or
(l) should Mortgagor default in the performance of its obligations of payment or performance under any other present or future loan made by Mortgagee to Mortgagor.
2.02. Enforcement, etc. If an Event of Default occurs and is subsisting, Mortgagee may do any one or more of the following:
(a) enter upon and take possession of the Premises, with or without the appointment of a receiver or an application therefore, employ a managing agent of the Premises and let the same, either in its own name, or in the name of Mortgagor, and receive the rents, incomes, issues and profits of the Premises and apply the same, after payment of all necessary charges and expenses, on account of the Secured Indebtedness; and Mortgagor will transfer and assign to Mortgagee, in form satisfactory to Mortgagee, Mortgagor's interest as lessor in any lease now or hereafter affecting the whole or any part of the Premises;
(b) pay any sums in any form or manner deemed expedient by Mortgagee to protect the security of this instrument or to cure any Event of Default other than payment of interest or principal on the Secured Indebtedness; make any payment hereby authorized to be made according to any bill, statement or estimate furnished or procured from the appropriate public officer or the party claiming payment without inquiry into the accuracy or validity thereof, and the receipt of any such public officer or party in the hands of Mortgagee shall be conclusive evidence of the validity and amount of items so paid, in which event the amounts so paid, with interest thereon from the date of such payment at the default rate of interest specified in the Note shall be added to and become a part of the Secured Indebtedness and be immediately due and payable to Mortgagee; and Mortgagee shall be subrogated to any encumbrance, lien, claim or demand, and to all the rights and securities for the payment thereof, paid or discharged with the principal sum secured hereby or by Mortgagee under the provisions hereof, and any such subrogation rights shall be additional and cumulative security to this instrument;
(c) without notice to Mortgagor, declare all sums secured by this Mortgage immediately due and payable and may commence proceedings to collect such sums, foreclose this Mortgage and sell the Property. At the foreclosure Mortgagee shall be entitled to bid and to purchase the Property and shall be entitled to apply the debt secured hereby or any portion thereof, in payment for the Property. The remedies provided to Mortgagee in this paragraph shall be in addition to and not in lieu of any other rights and remedies provided in this Mortgage or by law, all of which rights and remedies may be exercised by Mortgagee independently, simultaneously or consecutively in any order without being deemed to have waived any right or remedy previously or not yet exercised;
(d) foreclose upon the mortgaged premises and ask for a deficiency judgment pursuant to the applicable state law governing deficiencies and Mortgagor understands and agrees that a deficiency judgment, if pursued by Mortgagee shall be determined by the highest price bid at the judicial sale of the property;
(e) pursue such other rights and remedies as may be available at law or in equity or under the Uniform Commercial Code.
2.03. Receiver. Mortgagee, in any action to foreclose this Mortgage, or upon any Event of Default, shall be at liberty to apply for the appointment of a receiver of the rents and profits or of the Premises or both without notice, and shall be entitled to the appointment of such a receiver as a matter of right, without consideration of the value of the Premises as security for the amounts due the Mortgagee, or the solvency of any person or corporation liable for the payment of such amounts.
2.04. Sale in Parcels. In case of any sale under this Mortgage pursuant to any order in any judicial proceedings or otherwise, at the election of Mortgagee the Premises or any part thereof may be sold in one parcel and as an entirety, or in such parcels, manner or order as Mortgagee in its sole discretion may elect, and one or more exercises of the powers herein granted shall not extinguish or exhaust the power unless the entire Premises are sold or the Secured Indebtedness paid in full.
2.05. Waiver of Homestead. Mortgagor hereby waives and renounces all right of homestead exemption in the Premises provided by the Constitution or Laws 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 to time to sue for any sums, whether interest, principal or any installment of either or both, taxes, penalties, or any other sums required to be paid under the terms of this Mortgage, as the same become due, without regard to whether all of the Secured Indebtedness shall be due on demand, and without prejudice to the right of Mortgagee thereafter to enforce any appropriate remedy against Mortgagor, including an action of foreclosure, or any other action, for a default or defaults by Mortgagor existing at the time such earlier action was commenced.
2.07. No Obligation to Marshal Assets. In realizing upon the security and collateral for the Secured Indebtedness during the subsistence of an Event of Default, Mortgagee shall have no obligation whatsoever to marshal assets, or to realize upon all of such security and collateral; rather, Mortgagee shall have the right to realize upon all or any part of such collateral from time to time as Mortgagee deems appropriate.
2.08. Rights Cumulative. The rights of Mortgagee, granted and arising under the clauses and covenants contained in this Mortgage and the other Loan Documents, shall be separate, distinct and cumulative of other powers and rights herein granted and all other rights which Mortgagee may have at law or in equity, and none of them shall be in exclusion of the others; and all of them are cumulative to the remedies for collection of indebtedness, enforcement of rights under Mortgages, and preservation of security as provided at law. No act of Mortgagee shall be construed as an election to proceed under any one provision herein or under the Note or any of the other Loan Documents to the exclusion of any other provision, or an election of remedies to the bar of any other remedy allowed at law or in equity, anything herein or otherwise to the contrary notwithstanding.
2.09. Discontinuance of Proceedings. If Mortgagee commences the enforcement of any right, power or remedy, whether afforded under this Mortgage or otherwise, and including without limitation foreclosure or entry upon the Premises, and such enforcement is then discontinued or abandoned for any reason, or is determined adversely to Mortgagee, then and in every such case Mortgagor and Mortgagee shall be restored to their former positions and rights hereunder, without waiver of any Event of Default and without novation, and all rights, powers and remedies of Mortgagee shall continue as if no such enforcement had been commenced.
2.10. Future Advances. This Mortgage is granted to secure in accordance with the applicable state law: (a) all future advances and readvances that may subsequently be made to Mortgagor by Mortgagee evidenced by the Note, or any other promissory notes, and all renewals, replacements, modifications and extensions thereof; provided, however, that nothing contained herein shall create an obligation on the part of Mortgagee to make future advances or readvances to Mortgagor, and (b) all other indebtedness of Mortgagor to Mortgagee now or hereafter existing, whether direct or indirect, the maximum amount of all indebtedness outstanding at any one time secured hereby not to exceed twice the face amount of the Note, plus interest thereon, all charges and expenses of collection incurred by Mortgagee, including court costs, and reasonable attorneys' fees; and also in order to charge the Mortgaged Property with such payment, performance and observance.
3.01. Successors and Assigns. This Mortgage shall inure to the benefit of and be binding upon Mortgagor and Mortgagee and their respective legal representatives, heirs, executors, administrators, successors and assigns. (No right in Mortgagor to sell, transfer or encumber 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, and all 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, and each agreement, obligation and Secured Indebtedness of Mortgagor shall be and mean the several as well as joint undertaking of each of them. Pronouns used herein shall include both genders and both the singular and the plural, and the grammatical construction of sentences shall be deemed conformed thereto.
3.03. Captions for Convenience. The captions and headings in this Mortgage have been provided for convenience only and shall not limit the scope or extent of any provision hereof.
3.04. Severability. If any provision of this Mortgage should be held by a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect the validity, legality and enforceability of the remaining provisions of this Mortgage.
3.05. Applicable Law. This Mortgage shall be governed by and construed in accordance with the laws of the State of ___________.
3.06. Time of the Essence. Time is of the essence of this Mortgage and each of the other Loan Documents.
3.07. Notice, Etc. Notices and other communications hereunder shall be effective if given in writing by hand delivery to the recipient thereof, or by certified United States mail, postage and charges prepaid, addressed to the recipient at the addresses for Mortgagor and Mortgagee set forth on the first page of this Mortgage. Notices given by hand shall be effective upon receipt. Notices given by certified mail shall be effective on the third (3rd) day after deposit in the United States mail, addressed as aforesaid. Either party hereto may change the address for notice by notifying the other party hereto of the new address in the manner set forth herein for giving notices. (No obligation on the part of Mortgagee 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 the Mortgagee from any of the provisions hereof, or of any obligation hereby secured, shall modify the same or relate to the future or waive future compliance therewith by the Mortgagor.
3.09 Conflict of Laws. If any provision of this Mortgage conflicts with applicable law, such
conflict shall not affect other provisions of this Mortgage that can be given effect without the conflicting provision, and to this end the provisions of this Mortgage are declared to be severable.
3.10 Right of Inspection. Mortgagee may make or cause to be made reasonable entries upon the inspections of the Property upon giving Mortgagor prior notice.
3.11 Solvency. The undersigned Mortgagor represents to Mortgagee that such Mortgagor is benefited by the loan evidenced by the Note, whether or not the Mortgagor is the obligor thereon; that Mortgagor's obligations under this Mortgage will not render Mortgagor insolvent, and that adequate and sufficient consideration has been given to Mortgagor for its execution and delivery of this Mortgage.
3.12 Waiver of Jury Trial. MORTGAGOR, AFTER CONSULTATION WITH ITS ATTORNEYS, HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION, PROCEEDING, LITIGATION OR COUNTERCLAIM BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THE MORTGAGE, THE NOTE, THE LOAN DOCUMENTS AND ANY OTHER AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS, WHETHER VERBAL OR WRITTEN, OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE MORTGAGEE ACCEPTING THIS MORTGAGE.
3.13 Waiver of Appraisal Rights. The laws of ___________ provide that in any real estate foreclosure proceeding a defendant against whom a personal judgment is taken or asked may within thirty days after the sale of the Mortgaged Property apply to the court for an order of appraisal. The statutory appraisal value as approved by the court would be substituted for the high bid and may decrease the amount of any deficiency owing in connection with the transaction. THE UNDERSIGNED HEREBY WAIVES AND RELINQUISHES THE STATUTORY APPRAISAL RIGHTS WHICH MEANS THE HIGH BID AT THE JUDICIAL FORECLOSURE SALE WILL BE APPLIED TO THE DEBT REGARDLESS OF ANY APPRAISED VALUE OF THE MORTGAGED PREMISES.
IN WITNESS WHEREOF, this Mortgage has been duly executed under seal by Mortgagor as of the day and year first above written.
STATE OF ___________ )
COUNTY OF ___________ )
Personally appeared before me _____________________________ who, in oath, says that s/he saw the within named ________________________, sign the within Mortgage of Real Estate, and the said, as its act and deed, deliver the same, and that (s)he with ________________________________ witnessed the execution thereof.
Sworn to before me this _____
day of _____________, ______
NOTARY PUBLIC Witness
My Commission Expires: