MORTGAGE AND SECURITY AGREEMENT

(Florida – Single- or Multi-Family / Commercial)

[// GUIDANCE: This form is drafted for use in the State of Florida and is intended to create a first-priority real estate mortgage securing one or more promissory notes or other Obligations. Bracketed items identify data points that must be customized for each transaction. Prior to use, confirm compliance with the recording office’s formatting, margin, font-size, witness, notary, and documentary stamp requirements applicable in the county where the Property is located.]

TABLE OF CONTENTS

1. Document Header.........................................................2
2. Definitions.................................................................3
3. Grant of Mortgage & Obligations Secured.................................5
4. Payment Terms; Interest; Maturity......................................6
5. Representations & Warranties..........................................7
6. Affirmative Covenants...................................................8
7. Negative Covenants......................................................9
8. Insurance, Taxes & Impositions.........................................10
9. Events of Default.......................................................11
10. Remedies on Default....................................................12
11. Right of Redemption....................................................14
12. Deficiency Judgment.....................................................14
13. Indemnification; Liability Cap..........................................15
14. Force Majeure...........................................................16
15. Governing Law; Forum Selection; Jury Waiver.............................16
16. Miscellaneous Provisions...............................................17
17. Execution Block & Notarial Certificate................................19

1. DOCUMENT HEADER

This Mortgage and Security Agreement (this “Mortgage”) is made as of [EFFECTIVE DATE] (the “Effective Date”) by and between:

1. [BORROWER LEGAL NAME], a [STATE OF FORMATION] [ENTITY TYPE], whose mailing address is [ADDRESS] (“Borrower” or “Mortgagor”); and

2. [LENDER LEGAL NAME], a [STATE OF FORMATION] [ENTITY TYPE], whose mailing address is [ADDRESS] (“Lender” or “Mortgagee”).

Recitals

A. Borrower is indebted to Lender under that certain Promissory Note dated the Effective Date in the original principal amount of [PRINCIPAL AMOUNT] (together with all renewals, extensions, amendments and replacements, the “Note”).

B. Borrower desires to secure the payment and performance of the Note and all other Obligations (as defined below).

C. Florida Statutes Chapter 697 provides that every instrument conveying an interest in real property as security shall be deemed a mortgage, and Chapter 702 provides for judicial foreclosure thereof.

NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Borrower hereby agrees as follows:

2. DEFINITIONS

For purposes of this Mortgage, capitalized terms have the meanings set forth below. Undefined capitalized terms used herein shall have the meanings ascribed in the Note.

“Affiliate” – Any Person directly or indirectly controlling, controlled by, or under common control with a Party.

“Borrower” – See Document Header.

“Business Day” – Any day other than Saturday, Sunday, or a day on which banks in [COUNTY], Florida are authorized or required by law to close.

“Collateral” – Collectively, the Property, the Personal Property, the Rents, and all other rights and interests granted to Lender pursuant to Section 3.01.

“Deficiency Amount” – The unpaid portion of the Obligations, if any, remaining after application of the proceeds of a foreclosure sale.

“Event of Default” – Any of the occurrences described in Article 9.

“Governmental Authority” – Any federal, state, county, municipal or other governmental or quasi-governmental agency having jurisdiction over the Property or the Parties.

“Indemnified Parties” – Lender, its Affiliates, successors, assigns, and the officers, directors, members, managers, shareholders, partners, employees and agents of each.

“Leases” – All present and future leases, subleases, licenses or other occupancy agreements covering any portion of the Property.

“Liability Cap” – The lesser of (a) the Secured Debt Amount and (b) the maximum liability permitted to be limited under applicable law.

“Note” – See Recital A.

“Obligations” – All indebtedness, liabilities and duties of Borrower to Lender of every type and description, whether now existing or hereafter arising, including without limitation the Note and all indemnity obligations herein.

“Personal Property” – All fixtures, goods, equipment, inventory, general intangibles, accounts, deposit accounts, instruments, proceeds and other personal property now or hereafter located on, affixed to, or used in connection with the Property.

“Property” – The real property described in Exhibit A, together with all easements, rights-of-way, improvements and appurtenances thereto.

“Rents” – All rents, issues, profits, income and other benefits derived from the Property or the Leases.

“Secured Debt Amount” – [MAXIMUM SECURED PRINCIPAL AMOUNT], plus interest, costs, advances, protective disbursements and all other Obligations.

3. GRANT OF MORTGAGE & OBLIGATIONS SECURED

3.01 Granting Clause

Borrower hereby mortgages, grants, bargains, sells, assigns, pledges and conveys to Lender, with power of sale, all of Borrower’s right, title and interest, now owned or hereafter acquired, in and to the Collateral, to secure the prompt payment and performance of the Obligations.

3.02 Future Advances

This Mortgage secures not only existing indebtedness but also future advances and other Obligations, whether or not they are obligatory, to the fullest extent permitted by Fla. Stat. ch. 697.

[// GUIDANCE: Insert recording office’s required “future advance” statement if applicable.]

4. PAYMENT TERMS; INTEREST; MATURITY

4.01 Borrower shall pay the principal, interest, late charges, default interest, and all other sums required under the Note when due.

4.02 All payments shall be made in lawful money of the United States and applied as provided in the Note.

4.03 Upon full, indefeasible payment and performance of the Obligations, Lender shall, at Borrower’s expense, record a satisfaction of this Mortgage.

5. REPRESENTATIONS & WARRANTIES

Borrower represents and warrants to Lender as of the Effective Date and on each date any Obligations remain outstanding that:

a. Authority. Borrower is duly organized, validly existing and in good standing under the laws of its state of formation, and has full power and authority to execute and deliver this Mortgage and to perform the Obligations.

b. Title. Borrower holds marketable fee simple title to the Property free of all liens except those approved in writing by Lender.

c. No Conflicts. The execution, delivery and performance of the Loan Documents do not violate any organizational documents, law, court order or agreement binding on Borrower.

d. Compliance. The Property, and the current use thereof, complies in all material respects with applicable zoning, environmental, building, health and safety laws.

e. Environmental. No Hazardous Materials are present in, on or under the Property in violation of applicable law.

f. Financial Statements. All financial statements delivered to Lender are true and correct in all material respects and fairly present Borrower’s financial condition.

The foregoing representations and warranties shall survive closing and shall be deemed continuing so long as any Obligations remain outstanding.

6. AFFIRMATIVE COVENANTS

Borrower covenants and agrees that until the Obligations have been paid in full:

6.01 Payment & Performance. Borrower shall timely pay and perform the Obligations.

6.02 Taxes & Assessments. Borrower shall pay prior to delinquency all real estate taxes, assessments and other Impositions on the Property.

6.03 Insurance. Borrower shall maintain insurance in types and amounts reasonably satisfactory to Lender, including property, liability and (if applicable) flood insurance. Policies shall:
(i) name Lender as mortgagee and lender loss payee;
(ii) contain standard mortgagee clauses and endorsements; and
(iii) provide at least thirty (30) days’ prior written notice of cancellation.

6.04 Maintenance. Borrower shall keep the Property in good repair, free of waste and nuisance, and comply with all laws, ordinances and governmental requirements.

6.05 Books & Records; Inspection. Borrower shall maintain complete books and records and permit Lender on reasonable notice to inspect the Property and such records.

6.06 Leases. All Leases shall be on commercially reasonable terms. No Lease shall exceed [MAX LEASE TERM] years or grant purchase options without Lender’s prior written consent.

6.07 Further Assurances. Borrower shall execute and deliver such further instruments as Lender may reasonably request to carry out the intent of this Mortgage.

7. NEGATIVE COVENANTS

Without Lender’s prior written consent, Borrower shall not:

7.01 Transfer. Sell, convey, assign, lease (except as permitted in Section 6.06) or transfer any interest in the Property or Collateral.

7.02 Liens. Create, permit or suffer any lien on the Collateral other than Permitted Liens.

7.03 Debt. Incur indebtedness secured by the Property other than the Obligations.

7.04 Alterations. Materially alter or demolish any improvement on the Property except as may be required to comply with law or to repair casualty damage.

8. INSURANCE, TAXES & IMPOSITIONS

8.01 Impositions. “Impositions” means all taxes, assessments, water and sewer rents, and other governmental charges related to the Property.

8.02 Escrow. Upon an Event of Default or if required under the Note, Borrower shall deposit monthly escrow payments with Lender for the payment of Impositions and insurance premiums.

8.03 Tax and Insurance Receipts. Borrower shall provide paid receipts or other evidence reasonably satisfactory to Lender within ten (10) days after payment.

9. EVENTS OF DEFAULT

Each of the following constitutes an Event of Default:

a. Payment Default. Failure to pay any amount when due under the Note or other Loan Documents.

b. Covenant Default. Failure to perform any covenant or obligation in any Loan Document, and, if curable, such failure continues for thirty (30) days after written notice (or ten (10) days for insurance coverage).

c. Misrepresentation. Any representation or warranty proves materially false when made or deemed made.

d. Insolvency. Borrower becomes insolvent, files or is subjected to bankruptcy or receivership proceedings, or makes an assignment for the benefit of creditors.

e. Lien Priority. The priority of this Mortgage is impaired, or any claim of priority (other than a Permitted Lien) is asserted and not dismissed within thirty (30) days.

f. Abandonment or Waste. Borrower abandons the Property or commits or permits waste.

[// GUIDANCE: Consider adding cross-default to other loans or guarantees if applicable.]

10. REMEDIES ON DEFAULT

Upon an Event of Default and after any required notice and cure period:

10.01 Acceleration. Lender may declare the entire unpaid principal, accrued interest and all other Obligations immediately due and payable.

10.02 Entry & Possession. Lender may enter upon and take possession of the Property, manage the same and collect Rents.

10.03 Judicial Foreclosure. Lender may foreclose this Mortgage by civil action under Fla. Stat. ch. 702, seeking (i) sale of the Property by the clerk of court; (ii) appointment of a receiver pending foreclosure; and (iii) all other relief permitted by law.

10.04 Sale Proceeds; Application. Proceeds of any foreclosure sale shall be applied in the following order: (a) costs and expenses of sale (including attorneys’ fees); (b) accrued interest; (c) principal; (d) other Obligations; and (e) surplus, if any, to the person legally entitled thereto.

10.05 Receiver. Lender shall be entitled, without notice and without regard to waste or value of the Property, to appointment of a receiver to collect Rents and preserve the Property.

10.06 Cumulative Remedies. Lender’s remedies are cumulative and may be exercised simultaneously or successively. Failure to exercise any remedy shall not constitute a waiver.

11. RIGHT OF REDEMPTION

Borrower’s statutory right of redemption under Florida law shall continue until the later of (i) the filing of the certificate of sale or (ii) such other time as provided by Fla. Stat. § 45.0315, as amended. Nothing herein shall be construed to waive or extend any statutory redemption period.

12. DEFICIENCY JUDGMENT

12.01 Subject to Section 12.02, Lender may, in the foreclosure action or by separate suit as permitted by Fla. Stat. § 702.06, seek entry of a deficiency judgment for any Deficiency Amount.

12.02 Limitation. The aggregate personal liability of Borrower and any guarantor, and Lender’s recovery under any deficiency judgment, shall not exceed the Liability Cap. Recovery shall be further limited by any defenses, offsets, or exemptions provided under Florida law (including, where applicable, constitutional homestead protections).

[// GUIDANCE: Modify if a non-recourse carveout structure is desired.]

13. INDEMNIFICATION; LIMITATION OF LIABILITY

13.01 Borrower Indemnity. Borrower shall indemnify, defend and hold harmless the Indemnified Parties from and against all claims, losses, liabilities, damages, and expenses (including reasonable attorneys’ fees) arising out of or relating to:
a. ownership, use, occupancy or condition of the Property;
b. any breach of Borrower’s representations, warranties or covenants;
c. environmental matters (including Hazardous Materials); and
d. the enforcement of the Loan Documents.

13.02 Limitation. Notwithstanding the foregoing, Borrower’s aggregate liability under this Article 13 shall not exceed the Liability Cap, except with respect to (i) fraud or willful misconduct, (ii) intentional environmental contamination, or (iii) misapplication of insurance or condemnation proceeds, which shall be fully recourse.

14. FORCE MAJEURE

No Party shall be liable for delay or failure in the performance of its obligations (other than payment obligations) if such delay or failure is due to acts of God, war, terrorism, civil unrest, natural disaster, epidemic, governmental action, or other causes beyond the Party’s reasonable control; provided that (i) the affected Party gives prompt notice, (ii) uses commercially reasonable efforts to resume performance, and (iii) any required performance is completed as soon as reasonably possible.

15. GOVERNING LAW; FORUM SELECTION; JURY WAIVER

15.01 Governing Law. This Mortgage and the Obligations shall be governed by and construed in accordance with the internal laws of the State of Florida, without regard to conflict-of-law principles.

15.02 Forum Selection. Borrower irrevocably submits to the exclusive jurisdiction of the state courts of competent jurisdiction sitting in [COUNTY], Florida for all actions arising out of the Loan Documents.

15.03 Arbitration Excluded. The Parties expressly agree that disputes shall be resolved in the courts identified in Section 15.02 and not by arbitration.

15.04 Jury Waiver. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS. [// GUIDANCE: Delete if local counsel advises waiver is unenforceable for a particular loan type.]

15.05 Injunctive Relief. Nothing herein shall limit Lender’s right to seek injunctive relief or specific performance (including foreclosure) to protect or enforce its security interest.

16. MISCELLANEOUS PROVISIONS

16.01 Notices. All notices shall be in writing and delivered (i) by hand, (ii) by nationally recognized overnight courier, or (iii) by certified U.S. mail, postage prepaid, return receipt requested, to the addresses set forth in the Document Header (or such other address as a Party may designate by notice).

16.02 Amendment; Waiver. No amendment or waiver of any provision of the Loan Documents shall be effective unless in writing signed by the Party against whom enforcement is sought. No waiver shall constitute a waiver of any subsequent breach.

16.03 Assignment. Borrower may not assign or delegate its rights or obligations without Lender’s prior written consent. Lender may assign its rights, in whole or in part, without Borrower’s consent.

16.04 Severability. If any provision is held unenforceable, the remaining provisions shall remain in full force, and the unenforceable provision shall be reformed to the minimum extent necessary to effectuate the Parties’ intent.

16.05 Integration. The Loan Documents collectively constitute the entire agreement between the Parties concerning the subject matter and supersede all prior or contemporaneous agreements or understandings.

16.06 Successors and Assigns. The Loan Documents shall bind and benefit the Parties and their respective successors and assigns.

16.07 Counterparts; Electronic Signatures. This Mortgage may be executed in multiple counterparts (each of which shall be deemed an original but all constitute one instrument) and delivered via facsimile, PDF or other electronic means, which shall be deemed original signatures for all purposes.

16.08 Recording Costs, Taxes & Fees. Borrower shall pay all documentary stamp taxes, intangible taxes, recording costs and any other fees required to record this Mortgage.

16.09 Headings. Headings are for convenience only and shall not affect interpretation.

17. EXECUTION BLOCK & NOTARIAL CERTIFICATE

Executed as of the Effective Date.

BORROWER / MORTGAGOR

[Borrower Legal Name]
By: _______
Name: [NAME]
Title: [TITLE]

Witness 1: _____
Print: ________

Witness 2: _____
Print: ________

LENDER / MORTGAGEE

[Lender Legal Name]
By: _______
Name: [NAME]
Title: [TITLE]

Witness 1: _____
Print: ________

Witness 2: _____
Print: ________

NOTARY PUBLIC – STATE OF FLORIDA

The foregoing instrument was acknowledged before me this ___ day of [MONTH] 20__, by [NAME], as [TITLE] of [BORROWER OR LENDER LEGAL NAME], who ☐ is personally known to me or ☐ has produced ________ as identification.

Notary Public, State of Florida

Print Name: ____
My Commission Expires: _____

[SEAL]

EXHIBIT A

Legal Description of the Property

[Insert full metes-and-bounds or recorded lot and block description.]

[// GUIDANCE – POST-EXECUTION CHECKLIST
1. Collect and affix Florida documentary stamp tax and intangible tax.
2. Verify two witnesses and Florida notary acknowledgment.
3. Ensure Exhibit A is complete and accurate.
4. Record original Mortgage in the public records of the county where the Property is located.
5. Obtain lender’s title insurance with mortgagee endorsement.
6. Calendar maturity, insurance expiration, tax due dates, and any financial reporting deadlines.]