MORTGAGE AND SECURITY AGREEMENT

(Massachusetts – Single-Family / Commercial Real Estate)

[// GUIDANCE: This form is intentionally comprehensive. Practitioners may shorten or re-order sections to suit a particular transaction, provided all statutory requirements remain satisfied.]

TABLE OF CONTENTS

1. Document Header
2. Definitions
3. Grant of Mortgage & Statutory Power of Sale
4. Secured Obligations
5. Representations & Warranties
6. Covenants & Restrictions
7. Default
8. Remedies (Foreclosure, Redemption, Deficiency)
9. Risk Allocation
10. Dispute Resolution
11. General Provisions
12. Execution & Acknowledgment

(Internal cross-references appear in brackets. Replace/adjust numbering automatically after any edits.)

1. DOCUMENT HEADER

MORTGAGE AND SECURITY AGREEMENT (the “Mortgage”) made as of [EFFECTIVE DATE] (the “Effective Date”) by and between:

• [MORTGAGOR LEGAL NAME], a [state & entity type / individual], having an address at [ADDRESS] (“Mortgagor” or “Borrower”); and

• [MORTGAGEE LEGAL NAME], a [state & entity type], having an address at [ADDRESS] (“Mortgagee” or “Lender”).

Recitals

A. Mortgagor has executed a Promissory Note dated the Effective Date in the principal amount of [SECURED DEBT AMOUNT] USD (the “Note”).
B. Mortgagee is unwilling to extend credit under the Note absent a first-priority mortgage on the Property (as defined below).
C. Mortgagor desires to secure prompt payment and performance of the Secured Obligations (defined in §4) and grants this Mortgage with the Massachusetts statutory power of sale.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

2. DEFINITIONS

Unless the context requires otherwise, capitalized terms have the meanings set forth below and apply throughout this Mortgage.

“Affiliate” – any Person that, directly or indirectly, controls, is controlled by, or is under common control with the referenced Person.

“Applicable Law” – all federal, state (Commonwealth of Massachusetts), and local statutes, ordinances, rules, regulations, and common-law principles governing the Property, the Loan Documents, or the parties’ performance.

“Business Day” – any day other than Saturday, Sunday, or a day on which Massachusetts state banks are authorized to close.

“Collateral” – collectively, the Property, the Rents, and all other real or personal property interests described in §3.

“Event of Default” – any event enumerated in §7.

“Loan Documents” – the Note, this Mortgage, any assignment of leases and rents, guaranties, environmental indemnities, UCC financing statements, and all other instruments executed in connection with the loan evidenced by the Note.

“Person” – any natural person, corporation, partnership, limited liability company, trust, government, or other legal entity.

“Property” – the real property located at [PROPERTY ADDRESS] in the County of [COUNTY], Commonwealth of Massachusetts, more particularly described in Exhibit A attached hereto, together with all improvements, fixtures, easements, hereditaments, and appurtenances.

“Rents” – all present and future rents, issues, profits, royalties, and other income from the Property.

“Secured Obligations” – as defined in §4.

[// GUIDANCE: Add or delete definitions to match other transaction documents.]

3. GRANT OF MORTGAGE & STATUTORY POWER OF SALE

3.1 Grant. Mortgagor hereby mortgages, grants, bargains, sells, conveys, and confirms unto Mortgagee, WITH MORTGAGE COVENANTS and WITH STATUTORY POWER OF SALE, the Collateral, to secure the Secured Obligations.

3.2 Fixture Filing. This Mortgage shall be effective as a fixture filing under Article 9 of the Uniform Commercial Code and covers goods that are or will become fixtures related to the Property.

3.3 Absolute Assignment of Rents. Mortgagor absolutely and presently assigns to Mortgagee all Rents. Until an Event of Default, Mortgagee grants Mortgagor a revocable license to collect and use Rents in the ordinary course.

4. SECURED OBLIGATIONS

This Mortgage secures (collectively, the “Secured Obligations”):
a. Payment and performance of the Note, together with all interest, late charges, and other sums due thereunder;
b. Payment and performance of all other Loan Documents;
c. All advances or expenses that Mortgagee may make under any Loan Document or to protect the Collateral; and
d. All renewals, extensions, modifications, or replacements of any of the foregoing.

5. REPRESENTATIONS & WARRANTIES

Mortgagor represents and warrants to Mortgagee that, as of the Effective Date and continuing until release of this Mortgage:

5.1 Title. Mortgagor holds good, marketable, and insurable fee simple title to the Property free of all liens except Permitted Encumbrances disclosed on Schedule 5.1.

5.2 Authority. Mortgagor has full power and authority to execute and deliver the Loan Documents and to grant the interests conveyed herein.

5.3 Compliance. The Property presently complies with Applicable Law (including zoning, building code, and environmental requirements) in all material respects.

5.4 Litigation. No pending or, to Mortgagor’s knowledge, threatened action could materially impair Mortgagor’s ability to perform its obligations or Mortgagee’s rights in the Collateral.

5.5 Solvency. Mortgagor is solvent and will remain solvent after execution of the Loan Documents.

Representations and warranties shall survive closing and shall not be affected by any investigation conducted by Mortgagee.

6. COVENANTS & RESTRICTIONS

Until the Secured Obligations are indefeasibly paid in full, Mortgagor covenants and agrees:

6.1 Payment. To pay when due all sums required under the Loan Documents.

6.2 Taxes & Impositions. To pay all real estate taxes, assessments, charges, and levies before delinquency.

6.3 Insurance. To maintain insurance meeting Mortgagee’s requirements, including all-risk property, general liability, and flood insurance (if applicable), naming Mortgagee as mortgagee and loss payee.

6.4 Maintenance. To keep the Property in good repair, free of waste, and in compliance with Applicable Law; to promptly complete any restoration or repair following casualty.

6.5 Alterations. Not to materially alter, remove, or demolish any portion of the Property without Mortgagee’s prior written consent.

6.6 Leases. To obtain Mortgagee’s prior written consent before entering leases that (i) term beyond [TERM] years, (ii) contain options to purchase, or (iii) materially deviate from market terms.

6.7 Transfer/Encumbrance. Not to sell, convey, further encumber, or otherwise transfer any interest in the Collateral without Mortgagee’s prior written consent, except as expressly permitted.

6.8 Books & Records / Inspection. To keep accurate books relating to the Property and permit Mortgagee to inspect same and the Property upon reasonable notice.

6.9 Environmental Matters. To comply with environmental laws, promptly remediate any hazardous substance release, and provide indemnity per §9.1.

6.10 Additional Documents. To execute and deliver further instruments reasonably requested by Mortgagee to protect or perfect Mortgagee’s interests.

6.11 Notice of Default. To give Mortgagee prompt written notice of any Event of Default or material adverse change affecting the Collateral.

7. DEFAULT

Each of the following, after expiration of any notice and cure period expressly provided below, constitutes an “Event of Default”:

a. Payment Default – Failure to pay any amount under the Note within [10] days after written notice of nonpayment;
b. Covenant Default – Failure to perform any covenant or obligation under any Loan Document within [30] days after written notice (or, if incapable of cure within 30 days, failure to commence and diligently pursue cure);
c. Material Misrepresentation – Any representation or warranty proves materially false when made or deemed made;
d. Insolvency – Mortgagor’s bankruptcy, insolvency, or assignment for the benefit of creditors;
e. Unauthorized Transfer/Encumbrance – Violation of §6.7; or
f. Attachment/Condemnation – Seizure or condemnation of all or substantially all of the Property.

[// GUIDANCE: Massachusetts law affords a statutory 90-day right to cure residential payment defaults. Insert additional consumer protections when mortgaged property is owner-occupied 1-4 family housing.]

8. REMEDIES (FORECLOSURE, REDEMPTION, DEFICIENCY)

8.1 Remedies Generally. Upon any Event of Default, Mortgagee may, at its option, declare all Secured Obligations immediately due and payable and invoke any remedies permitted by this Mortgage or Applicable Law.

8.2 Foreclosure.
a. Power of Sale. Mortgagee may foreclose under the statutory power of sale, subject to all notice, publication, and affidavit requirements under Massachusetts mortgage law.
b. Judicial Action. Alternatively, Mortgagee may foreclose by judicial proceeding.

8.3 Right of Redemption. Mortgagor’s equity of redemption shall continue until the foreclosure sale is completed in accordance with Applicable Law. Nothing herein shall be construed to waive or limit any non-waivable statutory right of redemption.

8.4 Possession; Receivership. Mortgagee is entitled to immediate possession of the Property or appointment of a receiver to collect Rents upon an Event of Default, without regard to the adequacy of the Collateral.

8.5 Application of Proceeds. Foreclosure sale proceeds shall be applied:
(i) first, to costs and expenses of sale (including reasonable attorneys’ fees);
(ii) second, to accrued interest;
(iii) third, to principal of the Note;
(iv) fourth, to any other Secured Obligations; and
(v) fifth, the surplus (if any) to Mortgagor or other party entitled thereto.

8.6 Deficiency. If the sale proceeds are insufficient to satisfy the Secured Obligations, Mortgagor shall remain liable for the deficiency, provided any deficiency action is commenced within the period prescribed by Applicable Law. Mortgagor’s liability for any deficiency is capped at the unpaid Secured Debt Amount, plus recoverable costs and interest.

8.7 Cumulative Rights. Mortgagee’s rights are cumulative and may be exercised concurrently, successively, or selectively. No delay or omission shall waive any right.

9. RISK ALLOCATION

9.1 Indemnification by Mortgagor. Mortgagor shall indemnify, defend, and hold Mortgagee and its Affiliates harmless from and against any loss, liability, claim, damage, or expense (including reasonable attorneys’ fees) arising out of:
a. the ownership, use, or condition of the Collateral;
b. breach of any representation, warranty, or covenant;
c. environmental contamination or violation; and
d. personal injury or property damage occurring on or about the Property,
except to the extent caused by Mortgagee’s gross negligence or willful misconduct. This indemnity survives release of the Mortgage.

9.2 Limitation of Liability. Mortgagee’s aggregate liability to Mortgagor under any Loan Document shall not exceed the then-outstanding Secured Debt Amount. In no event shall Mortgagee be liable for consequential, punitive, or special damages.

9.3 Insurance Proceeds. Unless otherwise required by Applicable Law, Mortgagee may apply insurance proceeds to restoration of the Property or to the Secured Obligations, in Mortgagee’s discretion.

9.4 Force Majeure. No party shall be liable for failure to perform non-monetary obligations to the extent caused by events beyond its reasonable control (including acts of God, war, pandemic, or governmental action), provided the affected party promptly notifies the other and diligently resumes performance. Monetary obligations are not excused.

10. DISPUTE RESOLUTION

10.1 Governing Law. This Mortgage and the Secured Obligations shall be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts, without regard to conflict-of-laws principles that would result in application of another jurisdiction’s law.

10.2 Forum Selection. Each party submits to the exclusive jurisdiction of the state courts located within the Commonwealth of Massachusetts for all actions arising out of or relating to the Loan Documents.

10.3 Arbitration Excluded. The parties expressly agree NOT to submit any dispute to arbitration.

10.4 Jury Waiver. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION ARISING OUT OF THE LOAN DOCUMENTS. [If Massachusetts law or public policy limits enforcement of pre-dispute jury waivers in consumer transactions, this clause shall not apply to such transactions.]

10.5 Injunctive Relief. Nothing in this §10 shall limit Mortgagee’s right to seek injunctive, equitable, or foreclosure relief to protect or enforce its security interests.

11. GENERAL PROVISIONS

11.1 Amendments; Waivers. No amendment or waiver is effective unless in a written instrument signed by the party against whom enforcement is sought.

11.2 Assignment. Mortgagee may assign or participate its interest without Mortgagor’s consent. Mortgagor may not assign any rights or delegate any obligations without Mortgagee’s prior written consent.

11.3 Successors & Assigns. The Loan Documents bind and benefit the parties and their respective successors and permitted assigns.

11.4 Severability. Any unenforceable provision shall be severed and the remainder construed to effectuate the parties’ intent to the fullest extent permitted by law.

11.5 Entire Agreement. The Loan Documents constitute the entire agreement of the parties with respect to the subject matter and supersede all prior understandings.

11.6 Counterparts; Electronic Signatures. The Loan Documents may be executed in counterparts, each of which is deemed an original and all of which collectively constitute one instrument. Electronic signature and delivery have the same force and effect as manual originals.

11.7 Notices. All notices must be in writing and delivered by (i) personal delivery, (ii) nationally recognized overnight courier, or (iii) certified mail, return receipt requested, to the addresses set forth above (or as later designated). Notice is effective on delivery or attempted delivery during normal business hours.

12. EXECUTION & ACKNOWLEDGMENT

IN WITNESS WHEREOF, the parties have executed this Mortgage as of the Effective Date.

[Corporate Seal, if applicable]

COMMONWEALTH OF MASSACHUSETTS
[County] ss. On this _ day of _, 20__, before me, the undersigned notary public, personally appeared [NAME(S)], proved to me through satisfactory evidence of identification, and acknowledged that [he/she/they] executed the foregoing Mortgage as [his/her/their] free act and deed for the purposes therein contained.

Notary Public
My Commission Expires: ____

EXHIBIT A

Legal Description of the Property

(Attach metes and bounds or recorded lot description here.)

[// GUIDANCE:
1. Record this Mortgage in the registry of deeds or land court district where the Property is located.
2. File any corresponding UCC-1 fixture filing.
3. For 1-4 family owner-occupied property, insert Massachusetts-mandated consumer protections (e.g., 90-day right to cure notice, G.L. c. 244 §35A) before foreclosure provisions.
4. Verify all blank brackets before finalization.]