MORTGAGE AND SECURITY AGREEMENT
(Idaho – Real Property Mortgage)
TABLE OF CONTENTS
- Document Header
- Definitions
- Grant of Mortgage and Security Interest
- Obligations Secured
- Covenants of Borrower
5.1 Payment and Performance
5.2 Taxes and Assessments
5.3 Insurance
5.4 Maintenance, Repair, and Waste
5.5 Compliance with Law; Hazardous Materials
5.6 Books, Records, and Inspection Rights
5.7 Negative Covenants - Events of Default
- Remedies Upon Default
7.1 Acceleration
7.2 Judicial Foreclosure; Sale Procedures
7.3 Receivership
7.4 Application of Proceeds; Deficiency
7.5 Preservation of Statutory Redemption Rights - Risk Allocation
8.1 Indemnification by Borrower
8.2 Limitation of Liability
8.3 Force Majeure - Dispute Resolution
9.1 Governing Law
9.2 Forum Selection
9.3 Jury Trial Waiver [Optional]
9.4 No Arbitration - General Provisions
- Execution Block
1. DOCUMENT HEADER
This Mortgage and Security Agreement (this “Mortgage”) is made and entered into as of [EFFECTIVE DATE] (the “Effective Date”), by and between:
Borrower:
[LEGAL NAME OF BORROWER], a [STATE & TYPE OF ENTITY OR “individual”], having an address at [BORROWER ADDRESS] (“Borrower”)
Lender:
[LEGAL NAME OF LENDER], a [STATE & TYPE OF ENTITY], having an address at [LENDER ADDRESS] (“Lender”)
Recitals
A. Borrower is indebted to Lender under that certain promissory note dated [NOTE DATE] in the original principal amount of [PRINCIPAL AMOUNT] U.S. Dollars (the “Note”).
B. As a condition to the Note and other Loan Documents, Lender requires that Borrower grant to Lender a mortgage lien on the real property more fully described herein.
C. In consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Borrower and Lender agree as follows.
2. DEFINITIONS
For purposes of this Mortgage, the following terms shall have the meanings set forth below. All capitalized terms not defined in this Section shall have the meanings ascribed elsewhere in this Mortgage or in the Note.
“Applicable Law” means all federal, state, and local statutes, rules, regulations, ordinances, and judicial orders applicable to the Property or the transactions contemplated hereby, including, without limitation, Idaho Code §§ 6-101 et seq., 11-401 et seq., and 6-108.
“Collateral” means, collectively, the Property, Fixtures, Rents, and Personal Property, each as defined herein.
“Default” has the meaning given in Section 6.
“Fixtures” means all goods and equipment affixed to or used in connection with the Property so as to constitute fixtures under the Idaho Uniform Commercial Code.
“Loan Documents” means the Note, this Mortgage, any guaranty, and any other document now or hereafter evidencing or securing any of the Obligations.
“Obligations” has the meaning given in Section 4.
“Personal Property” means all equipment, inventory, accounts, general intangibles, and other personal property (whether tangible or intangible) located on, related to, or used in connection with the Property.
“Property” means the real property located in the County of [COUNTY], State of Idaho, commonly known as [PROPERTY ADDRESS], and legally described on Exhibit A attached hereto.
“Rents” means all rents, income, issues, and profits of the Property, whether now due or hereafter accruing.
[// GUIDANCE: Add additional defined terms (e.g., “Environmental Laws,” “Hazardous Materials,” “Taxes”) as needed for the specific transaction.]
3. GRANT OF MORTGAGE AND SECURITY INTEREST
3.1 Grant. To secure the Obligations, Borrower hereby grants, bargains, sells, conveys, mortgages, and warrants to Lender, with power of sale only as permitted by judicial decree under Applicable Law, all of Borrower’s right, title, and interest in and to the Collateral.
3.2 Assignment of Rents. Borrower hereby absolutely and unconditionally assigns to Lender all present and future Rents, which assignment Lender may activate upon the occurrence and during the continuance of an Event of Default without further action or consent of Borrower.
3.3 Fixture Filing. This Mortgage constitutes a financing statement filed as a fixture filing under Idaho Code § 28-9-502 and covers Fixtures and other personal property described herein. Filing or recording of this Mortgage shall be deemed sufficient for perfection.
4. OBLIGATIONS SECURED
This Mortgage secures the following (collectively, the “Obligations”):
a. Payment and performance of the Note, including all extensions, renewals, and modifications thereof;
b. Payment and performance of all other debts, obligations, and liabilities now or hereafter owing by Borrower to Lender under the Loan Documents; and
c. All costs, expenses, and advances incurred or made by Lender to protect or enforce its rights under the Loan Documents, including reasonable attorneys’ fees.
5. COVENANTS OF BORROWER
5.1 Payment and Performance. Borrower shall pay and perform all Obligations in accordance with their terms.
5.2 Taxes and Assessments.
(a) Borrower shall pay when due all Taxes and assessments against the Collateral.
(b) Upon request, Borrower shall deliver to Lender official receipts evidencing such payments.
5.3 Insurance.
(a) Borrower shall maintain insurance on the Collateral in such amounts and against such risks as Lender may reasonably require, including hazard and liability coverage.
(b) Policies shall name Lender as mortgagee and loss payee pursuant to a standard mortgagee clause.
5.4 Maintenance, Repair, and Waste. Borrower shall keep the Property in good repair, shall not commit waste, and shall comply with all Applicable Law.
5.5 Compliance with Law; Hazardous Materials.
(a) Borrower shall not use or permit the Property to be used for any unlawful purpose.
(b) Borrower shall not cause or permit the release of Hazardous Materials in violation of Environmental Laws and shall indemnify Lender for any breach of this covenant.
5.6 Books, Records, and Inspection Rights. Borrower shall keep accurate books and records and permit Lender (or its agents) to inspect the Collateral and books upon reasonable notice.
5.7 Negative Covenants. Borrower shall not, without Lender’s prior written consent, (i) transfer any interest in the Collateral, (ii) create or permit any lien other than Permitted Encumbrances, or (iii) materially alter the Property.
6. EVENTS OF DEFAULT
Each of the following constitutes an “Event of Default”:
a. Non-payment of any amount due under the Note or any Loan Document within [GRACE PERIOD] days after the due date;
b. Breach of any covenant, representation, or warranty in this Mortgage or any Loan Document, which breach continues for [CURE PERIOD] days after notice;
c. Insolvency, bankruptcy, or assignment for the benefit of creditors by Borrower;
d. Any lien or encumbrance (other than a Permitted Encumbrance) is filed against the Collateral and not discharged within [30] days;
e. Any material misrepresentation by Borrower in connection with the Loan Documents.
7. REMEDIES UPON DEFAULT
7.1 Acceleration. Upon an Event of Default, Lender may declare all Obligations immediately due and payable without further notice.
7.2 Judicial Foreclosure; Sale Procedures.
(a) Lender may initiate a judicial foreclosure under Idaho Code §§ 6-101 et seq.
(b) The Property shall be sold by the sheriff as provided by Applicable Law, and Lender may bid at such sale.
7.3 Receivership. Lender shall be entitled, as a matter of right, to the appointment of a receiver for the Collateral.
7.4 Application of Proceeds; Deficiency.
(a) Proceeds shall be applied first to costs of sale, second to the Obligations, and any surplus to Borrower.
(b) If proceeds are insufficient, Lender may seek a deficiency judgment in accordance with Idaho Code § 6-108, limited to the difference between the total Obligations and the fair market value of the Property as determined by the court.
7.5 Preservation of Statutory Redemption Rights. Nothing herein shall impair Borrower’s statutory right of redemption under Idaho Code §§ 11-401 et seq.; provided, however, Borrower waives all common-law or equitable rights of redemption to the fullest extent permitted by Applicable Law.
8. RISK ALLOCATION
8.1 Indemnification by Borrower. Borrower shall indemnify, defend, and hold Lender harmless from any and all claims, liabilities, losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to (a) Borrower’s breach of any covenant or representation, (b) ownership, operation, or use of the Collateral, and (c) the presence or release of Hazardous Materials. This indemnity survives satisfaction of the Obligations.
8.2 Limitation of Liability. Notwithstanding anything to the contrary, Lender’s recovery against Borrower shall be limited to the Secured Debt Amount (as defined in the metadata) and the Collateral, except to the extent liability is otherwise expressly made personal to Borrower under this Mortgage or the Note (e.g., for misapplication of Rents, willful waste, or fraud).
8.3 Force Majeure. Performance (other than payment) shall be excused to the extent delayed by events beyond the reasonable control of the party whose performance is affected, provided such party gives prompt notice and resumes performance as soon as reasonably practicable.
9. DISPUTE RESOLUTION
9.1 Governing Law. This Mortgage, and all claims arising hereunder, shall be governed by and construed in accordance with the internal laws of the State of Idaho, without regard to conflicts-of-law rules.
9.2 Forum Selection. Borrower irrevocably submits to the exclusive jurisdiction of the state courts sitting in [COUNTY], Idaho, for any action arising out of or relating to the Loan Documents, and Borrower waives any objection to venue or forum non conveniens.
9.3 Jury Trial Waiver [Optional]. [IF PERMITTED BY APPLICABLE LAW, BORROWER AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL IN ANY ACTION OR PROCEEDING ARISING OUT OF THE LOAN DOCUMENTS.]
9.4 No Arbitration. The parties expressly agree that arbitration is excluded; all disputes shall be resolved exclusively in the courts designated above.
9.5 Injunctive Relief. Nothing herein limits Lender’s right to seek equitable relief, including foreclosure or appointment of a receiver.
10. GENERAL PROVISIONS
10.1 Amendments and Waivers. No amendment or waiver shall be effective unless in writing and signed by the party against whom enforcement is sought.
10.2 Assignment. Lender may assign or participate its interest without Borrower’s consent; Borrower may not assign without Lender’s prior written consent.
10.3 Successors and Assigns. This Mortgage binds and benefits the parties and their respective successors and assigns.
10.4 Severability. If any provision is unenforceable, the remainder shall be enforced to the fullest extent permitted by law.
10.5 Entire Agreement. The Loan Documents constitute the entire agreement, superseding all prior agreements, oral or written, relating to the subject matter.
10.6 Construction. Headings are for convenience only; the singular includes the plural and vice versa.
10.7 Notices. All notices shall be in writing and deemed given upon (a) personal delivery, (b) certified mail (return receipt requested), or (c) nationally recognized overnight courier, addressed to the parties at their addresses specified above (or as changed by notice).
10.8 Counterparts; Electronic Signatures. This Mortgage may be executed in counterparts, each of which is deemed an original. Signatures delivered by electronic means shall be deemed originals.
10.9 Recording and Costs. Borrower shall pay all recording fees, documentary stamp taxes, and other charges incident to recordation of this Mortgage.
11. EXECUTION BLOCK
IN WITNESS WHEREOF, Borrower has executed this Mortgage as of the Effective Date.
[LEGAL NAME OF BORROWER]
By: ____
Name: ____
Title: _________
[If Borrower is an individual, use signature line for individual and include marital status acknowledgment if required by Idaho law.]
[LEGAL NAME OF LENDER]
By: ____
Name: ____
Title: _________
NOTARIZATION (Idaho)
State of Idaho )
) ss.
County of __ )
On this ___ day of _, 20_, before me, the undersigned, a Notary Public in and for said State, personally appeared _______, known or identified to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written.
Notary Public for the State of Idaho
My commission expires: ______
EXHIBIT A
(Legal Description of Property)
[INSERT FULL METES AND BOUNDS OR LOT AND BLOCK LEGAL DESCRIPTION]
[// GUIDANCE: Attach a separate exhibit page and verify accuracy against title commitment.]
[// GUIDANCE:
1. Confirm county-specific recording requirements (margins, font size, cover sheet, etc.).
2. If the loan is a construction loan or multifamily project, insert additional covenants (e.g., construction escrow, leasing covenants).
3. For married individual Borrowers, obtain spousal joinder to release community property or homestead rights under Idaho Code §§ 32-912 et seq.
4. Review Idaho’s anti-deficiency carve-outs (e.g., fraud, waste) for possible personal liability “carve-back” language.
5. Insert tax parcel number(s) on the first page if required by local recorder.
]